USA-Israel vs Irán Ius Ad Bellum. The Crisis of the International Legal Order: Between Raison d'État and the Peremptory Norms of Jus Cogens
The international legal system, meticulously constructed upon the visceral horrors and structural failures that precipitated the Second World War, is currently traversing a period of systemic erosion in the first quarter of the twenty-first century. This erosion threatens to dismantle the very architecture of collective security established under the auspices of the United Nations. This crisis is fundamentally characterised by an escalating dialectical tension between Raison d'État—the political doctrine that subordinates legal norms to the imperatives of state survival and strategic interests—and Jus Cogens, the body of peremptory norms from which no derogation is permitted and which serve to protect the fundamental values of humanity.1 Through a rigorous examination of three defining military milestones—the 2003 invasion of Iraq, the protracted conflict within the Occupied Palestinian Territory, and the recent military escalation against the Islamic Republic of Iran initiated on 28 February 2026—this report analyses the metamorphosis of the use of force and the response of international judicial institutions to the pressures of hegemony and Realpolitik.1
The Strategic Pillars of United States Foreign Policy and Regional Architecture
The foreign policy of the United States within the Middle East is not a series of erratic interventions but is instead a calculated deployment of power based on four fundamental pillars that have defined its regional engagement for decades: energy security, the geopolitical containment of strategic rivals, the narrative of the 'champion' of human rights and democracy, and the specific containment of Iranian regional ambitions.1 These pillars frequently operate under a logic of political realism where national interest precedes the literal legal considerations of the UN Charter.
Energy security has historically served as the gravitational axis of the American presence in the region. The protection of the 'petrodollar' system and the guarantee of stability within the global hydrocarbon markets necessitate that no hostile actor controls the vital flow of resources through the Persian Gulf, particularly via the Strait of Hormuz.1 This strategic imperative translates into the establishment of an extensive network of military bases and security alliances with the monarchies of the Gulf Cooperation Council (GCC). Such arrangements often place Washington in a position of technical co-belligerency when these facilities are utilised to project force against third states.1
Complementing this, the narrative of the 'champion' of democracy and the global war on terror provides the moral framework necessary to legitimise operations that, under strict legal scrutiny, might be categorised as acts of aggression. This discursive duality is evident when contrasting the justifications for the 2003 invasion of Iraq—predicated on a supposed imminent threat and the promotion of liberty—with the factual reality of a power vacuum that destabilised the region for subsequent decades.1
Table 1: Strategic Pillars of US Middle Eastern Policy
The Fracture of Multilateralism: The 2003 Invasion of Iraq
The invasion of Iraq in 2003 represents a critical turning point where the doctrine of 'pre-emptive war' formally challenged the jus ad bellum framework established by the United Nations Charter.1 Article 2(4) of the Charter explicitly prohibits the use of force against the territorial integrity of any state, allowing for only two exceptions: authorisation by the Security Council under Chapter VII and the inherent right of self-defence under Article 51.1
In the case of Iraq, the 'Coalition of the Willing' operated in the absence of a clear mandate. Resolution 1441, adopted in November 2002, offered Baghdad a 'final opportunity' to comply with disarmament obligations but pointedly omitted the phrase 'all necessary means', which in the practice of the Security Council authorises the use of military force.1 The American interpretation—that Resolution 1441 permitted automatic military action upon non-compliance—was rejected by the majority of the international community, including permanent members such as France and Russia, who maintained that any use of force required an explicit second resolution.1
From a rigorous legal perspective, the invasion constituted an act of aggression as it failed to satisfy the requirement of 'imminence' established in the Caroline case.1 For anticipatory self-defence to be valid under customary international law, the threat must be 'instant, overwhelming, leaving no choice of means, and no moment for deliberation'.1 The eventual absence of weapons of mass destruction and the lack of a prior attack by Iraq invalidated the self-defence argument, leaving the intervention in a legal vacuum that undermined the authority of the Security Council.1
Gaza and the Intersection of International Tribunals
The conflict in the Gaza Strip has brought the tension between Raison d'État and international law to its most acute level in the twenty-first century. The national security doctrine, maintained by Israel and supported by the United States, prioritises the right to self-defence against non-state actors utilising asymmetric warfare and human shields.1 Under this perspective, international resolutions are perceived as politicised instruments that ignore the realities of urban combat.
In opposition, legal universalism defends the primacy of Jus Cogens and the norms of Jus in Bello (International Humanitarian Law). The central argument is that no prior aggression, including the horrific attacks of 7 October, justifies the violation of peremptory norms such as the prohibition of collective punishment, forced displacement, and the systematic destruction of civilian infrastructure indispensable for the survival of the population.1
Jurisprudence of the International Court of Justice (ICJ)
The ICJ issued several historic rulings between 2024 and 2026 that redefined the legal status of the region. In the case initiated by South Africa, the Court recognised the 'plausibility' of genocidal acts, imposing provisional measures that obligated Israel to prevent incitement to genocide and guarantee the entry of humanitarian aid.1 By March 2026, the number of states intervening in the process, including the Netherlands, Iceland, and Belgium, reflected a growing consensus on the necessity of interpreting the Genocide Convention strictly against state conduct.1
The Advisory Opinion of 19 July 2024 is particularly momentous. The ICJ determined that Israel's presence in the Occupied Palestinian Territory (OPT) is unlawful and must terminate 'as rapidly as possible'.1 The Court concluded that settlement policies, the exploitation of natural resources, and the de facto annexation of parts of the West Bank violate the prohibition of acquisition of territory by force and the right to self-determination.1 This ruling transforms the conflict from a negotiable territorial dispute into a situation of objective illegality that generates erga omnes obligations for all states: the duty of non-recognition of the situation as legal and the duty to refrain from providing aid or assistance to maintain it.1
Table 2: Judicial Milestones in the Gaza Conflict
The Conflict with Iran (2026): The Normalisation of Aggression
The initiation of hostilities against Iran on 28 February 2026, under the operations denominated 'Epic Fury' by the United States and 'Roaring Lion' by Israel, marks a new stage in the erosion of the international order.1 Unlike past interventions, this campaign was launched amidst active diplomatic negotiations and without a prior or imminent armed attack by Tehran.1
Justification of Pre-emptive Self-Defence
The United States government justified the attacks—which included the use of B-2 Spirit bombers against nuclear and missile installations—as an action necessary to prevent Iran from obtaining nuclear weapons and to degrade its capacity to support proxy groups.1 However, the legal standard for anticipatory self-defence is extremely high. It is not sufficient to rely on the perception of a future threat or concern regarding long-term intentions; there must be clear evidence of hostile intent and an immediate capacity for attack.1
From the perspective of Public International Law, the attacks of 28 February lack a legal basis. The ICJ clarified in cases such as Nicaragua and Oil Platforms that not every use of force reaches the level of an 'armed attack' justifying self-defence.1 In the absence of a prior attack by Iran against the territory of the United States or Israel, the operation is categorised as an illegal armed aggression.1
The Assassination of the Supreme Leader and State Immunity
A critical component of the operation was the assassination of Supreme Leader Ali Khamenei on the first day of the bombings.1 This act represents a rupture with traditional norms of immunity for sitting heads of state. While some academics argue that as the supreme commander of the armed forces under the Iranian constitution, Khamenei could be considered a legitimate military target in an International Armed Conflict (IAC), others warn that his assassination outside an existing conflict constitutes an extrajudicial execution and a violation of state sovereignty.1
The distinction between jus ad bellum (the right to go to war) and jus in bello (the law in war) is fundamental. Even if an attack against a military leader were lawful under IHL, it does not cure the illegality of initiating the war in the first place under the UN Charter.1 The normalisation of political assassination as a state tool erodes the distinction between military combat and selective killing, creating dangerous precedents for global stability.1
Technical Analysis of the Proportionality Principle and the Minab School Strike
The principle of proportionality is a pillar of International Humanitarian Law and is codified in Article 8(2)(b)(iv) of the Rome Statute.1 This principle prohibits launching attacks when it is known they will cause incidental loss of civilian life, injuries to civilians, or damage to civilian objects that would be 'clearly excessive in relation to the concrete and direct military advantage anticipated'.1
In the context of the 2026 conflict, the bombing of the Shajareh Tayyebeh Primary School in Minab, Iran, on 28 February—resulting in the deaths of over 170 people, primarily children—serves as a case study for the violation of this principle.1
Technical Assessment of Proportionality
The Rome Statute's use of the term 'clearly excessive' raises the threshold for criminal responsibility, providing military commanders with a margin of appreciation based on information available at the time of the attack.1 Proportionality is not a simple mathematical calculation of casualties but an evaluation of the target's value against the risk to civilians.1
Regarding the Minab school, several critical factors must be considered:
Distinction and Precaution: The attacker has the obligation to verify the target is a military objective. Satellite imagery and investigations indicate that although the school was once part of an IRGC complex, it had been walled off and used as an educational facility since at least 2016.11
Excessiveness: Even if a legitimate military target existed near the school, the death of 175 civilians, mostly girls between the ages of 7 and 12, can hardly be considered proportional to any tactical advantage.1
Use of Precision Weaponry: The use of Tomahawk cruise missiles, which are precision-guided, suggests that the impact was either a deliberate targeting decision or a catastrophic failure in taking precautions.1
Table 3: Elements of Proportionality in the Minab Case (2026)
The primary violation in Minab was the failure to take 'feasible precautions'.21 CENTCOM officers utilised outdated intelligence from the DIA, failing to verify the current status of the building.10 In international criminal law, an 'honest mistake of fact' can serve as a ground for excluding responsibility, even if the mistake was objectively unreasonable (negligent).21 This 'negligence gap' complicates the prosecution of such strikes before the ICC.21
The Regional Response and United Nations Security Council Resolution 2817
The retaliation by Iran between 9 and 10 March 2026 against American bases in Qatar, Kuwait, Bahrain, and the UAE expanded the conflict to a regional level. Tehran invoked Article 51 of the UN Charter, arguing that the Gulf states had effectively waived their sovereignty by permitting their territories to be used for launching acts of aggression against Iran.
The Collapse of Neutrality and Resolution 2817
This argument is supported by the General Assembly Resolution 3314, which defines an act of aggression as a state allowing its territory to be used by another state to perpetrate an attack against a third party. However, international jurisprudence distinguishes between 'passive hosting' under pre-existing treaties and 'active participation' in specific strikes.1
On 11 March 2026, the Security Council adopted Resolution 2817, with 13 votes in favour and abstentions from China and Russia.1 The resolution condemned Iran's 'egregious attacks' against its neighbours in the strongest terms and reiterated support for the sovereignty and territorial integrity of the GCC states and Jordan.3 Critics, however, noted the resolution's partiality, as it made no mention of the initial US-Israeli strikes that triggered the crisis.1 This reflects the political paralysis of the Council when the actions of its permanent members or their allies are scrutinised.1
Table 4: UNSC Resolution 2817 (2026) Voting Summary
Raison d'État vs. the Rule of International Law
The central tension of this report lies in the collision between Raison d'État and Jus Cogens. Raison d'État posits that national security requirements constitute a superior law that can suspend conventional obligations during crises.1 This is evident in the justifications for the Iraq invasion and the operations in Gaza and Iran, where 'military efficacy' is prioritised over the literal interpretation of human rights treaties.1
Conversely, Jus Cogens represents the legal conscience of the international community. Norms such as the prohibition of aggression, genocide, and crimes against humanity are peremptory and cannot be derogated by any state, regardless of strategic interests.1 If the international system allows powers to systematically ignore the rulings of the ICJ and the ICC, international law transforms from a binding norm into a mere 'moral suggestion'.1
The stability of the international order can be expressed through the following mathematical relationship:
Where global stability () is proportional to the capacity of multilateral agreements () to contain Raison d'État () over time ().1 When the unilateral will to power grows without the counterweight of the legal norm, stability collapses into a state of nature where the law of the strongest prevails.1
Conclusions and Juridical Outlook
The analysis of military interventions in Iraq, Palestine, and Iran reveals a crisis of legitimacy that threatens the validity of Public International Law. The transition from rules-based governance to a system based on force has profound implications for collective security.
Illegality of Aggression: Both the 2003 Iraq invasion and the 2026 attack on Iran lack a solid legal basis under Article 51 of the UN Charter. The doctrine of pre-emptive self-defence, when applied without a verifiable imminent threat, is indistinguishable from an act of aggression.1
Crisis of Occupation: The 2024 ICJ Advisory Opinion clarified that prolonged occupation involving annexation and systematic discrimination is an internationally wrongful act. The non-compliance with the withdrawal orders issued by the General Assembly represents a direct challenge to the planet's highest judicial authority.1
Individual Criminal Responsibility: The ICC arrest warrants in the Gaza context mark a milestone against impunity. However, their effectiveness depends on the political will of states to execute them, testing the commitment of Western democracies to the Rome Statute.
The Challenge to Jus Cogens: The Minab school strike and the assassination of political leaders under the 'war on terror' narrative demand a return to the principles of distinction and proportionality. The use of advanced technology and AI should be a tool for precision and damage reduction, not a veil for impunity.1
In conclusion, the strengthening of the ICJ and the ICC is an existential necessity for the multilateral order. Supporting the resolutions of these courts implies defending the structure of international peace against the tides of Realpolitik. If international law fails to contain force, we will retreat to a world of confronting blocks and perpetual violence, where the rights of the most vulnerable are sacrificed on the altar of national security.1
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