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Orde F. Kittrie

@ordefk

Jun 13

Thread by Orde Kittrie, former lead US State Department attorney for nuclear issues, explaining why Israel's attack on Iran's nuclear weapons program is fully justified under international law and the several commentators who have argued otherwise are flat wrong.

Bottom line: Since Iran is already engaged in an ongoing armed conflict with Israel, Israel need not wait to take defensive action only just before Iran fires its proverbial next shot. Iran has been engaged in an ongoing armed conflict with Israel since at least April 13, 2024, when Iran fired over 300 drones and missiles at Israel. The 180 missiles launched at Israel on October 1, 2024, plus the Iranian leadership's eliminationist policy towards, and continuing threats against, Israel make clear that the conflict Iran initiated with Israel is ongoing. Given that ongoing armed conflict, Israel did not need to wait until Iran’s nuclear weapons program, or a next round of Iranian attacks, met an “imminence” test (although the imminence test was indeed met). 1/11

Because Iran was already engaged in an ongoing armed conflict with Israel, an imminent nuclear or other attack by Iran was not a necessary condition for Israel’s use of force in self-defense against Iran.

This reflects a long-standing cornerstone of U.S. policy. While serving as State Department Legal Adviser under President Barack Obama, Brian J. Egan explained as follows: “In the view of the United States, once a State has lawfully resorted to force in self-defense against a particular armed group following an actual or imminent armed attack by that group, it is not necessary as a matter of international law to reassess whether an armed attack is imminent prior to every subsequent action taken against that group, provided that hostilities have not ended.”

In addition, Paul Ney, the DOD General Counsel at the time of the first Trump administration’s killing of IRGC commander Qasem Soleimani, took an approach similar to Egan:
"Some have questioned whether another Iranian armed attack against the United States was “imminent” at the time of the strike targeting Soleimani. This is a red herring, as the saying goes. Under international law, an imminent attack is not a necessary condition for resort to force in self-defense in this circumstance because armed attacks by Iran already had occurred and were expected to occur again . . . the January 2, 2020, air strike against Soleimani in Iraq was lawful as a matter of international law as an exercise of the inherent right of self-defense recognized by Article 51 of the U.N. Charter. An imminent attack is not a necessary condition for use of force in self-defense under Article 51 when an armed attack has already been perpetrated and the response is necessary and proportionate." 2/11 defense.gov/News/Speeches/…

This rationale for attacking a nuclear weapons program facility during an ongoing armed conflict should resonate with Iran, which, during the Iran-Iraq War, itself conducted an airstrike on Saddam’s Osirak nuclear reactor. 3/11 unredacted.com/2012/03/09/doc…

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Orde F. Kittrie

@ordefk

Nov 21, 2024

Thread: Comments on ICC warrants by former US State Department attorney Orde Kittrie: There is no factual or legal basis for these warrants against top Israeli officials. The warrants are clearly driven by politics and the same anti-Israel animus that has long dominated the United Nations and other international organizations. These filings should be treated as what they are: quintessential lawfare, a political vendetta masquerading as a legal proceeding. 1/5

The ICC warrants indicate a clear double standard. The ICC has not issued arrest warrants for the Islamic Republic of Iran’s Supreme Leader Ayatollah Ali Khamenei or any other Iranian official, Syrian President Bashar al-Assad or any other Syrian official, or the genocidal Chinese President Xi Jinping or any other Chinese official. While the Islamic Republic of Iran, Syria, and the People’s Republic of China are, like Israel, not ICC members, the ICC has only concocted a specious jurisdiction claim for Israel, a democratic nation with a robust and independent judiciary. This is an outrageous abuse of power. 2/5

There is bipartisan opposition to the ICC’s illegitimate overreach. In fact, since the ICC’s founding in 2002, every U.S. administration, of both parties, has refused to join the court, fearing the ICC’s politicization and misuse. Both the Biden and Trump administrations and over 330 Members of Congress from both parties have rejected ICC investigations of the U.S. and Israel in the past, and both administrations have chosen not to join the ICC. NSC Spokesperson John Kirby said on April 30, “We don’t believe the ICC has any jurisdiction here.” 3/5

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Orde F. Kittrie

@ordefk

May 20, 2024

Thread by me, a former US State Department attorney and author of a book on lawfare, regarding today's outrageous ICC filing of arrest warrants for Israeli PM Netanyahu and Defense Min. Gallant: There is no factual or legal basis for these warrant filings against top Israeli officials. The filings are clearly driven by politics, and the same anti-Israel animus that has long dominated the United Nations and other international organizations. These filings should be treated as what they are: quintessential lawfare, a political vendetta masquerading as a legal proceeding. 1/11

The only serving national leaders for which the ICC has previously issued such arrest warrants are Libya’s Muammar Gaddafi, Russia’s Vladimir Putin, and Sudan’s Omar al-Bashir. Israel’s leaders do not belong in such company. 2/11

The ICC has never issued arrest warrants for: Iran’s Supreme Leader Ayatollah Ali Khamenei or any other Iranian official, Syrian President Bashar al Assad or any other Syrian official, or the genocidal General Secretary of the People’s Republic of China, Xi Jinping, or any other Chinese official. 3/11

Read 10 tweets

Orde F. Kittrie

@ordefk

Jan 26, 2024

Thread: Analysis of today's ICJ order by Orde Kittrie (law professor, senior fellow, and former US State Dept. attorney):
ICJ order's negative impact on US national security: “The ICJ’s failure to entirely dismiss South Africa’s meritless claims undermines the West’s on-going fight against the many authoritarian and terrorist leaders who are willing to drive up their own sides’ casualties by using their own civilians as human shields. The court ignored that Gaza civilian casualties are massively inflated by Hamas' rampant use of Palestinian civilians as human shields. But the court used those inflated civilian casualty figures, for which Hamas is responsible, to justify measures against Israel. In doing so, the ICJ incentivized the use of human shields by authoritarian enemies such as China and Russia, and by terrorist enemies such as ISIS and the Taliban, who like Hamas are happy to sacrifice their own civilians if it will help them to undermine Western militaries by falsely accusing them of war crimes.” 1/9

Former State Dept attorney Orde Kittrie on inaccuracy of using term “genocide” to describe Israel’s actions in Gaza: “South Africa failed to provide any substantive evidence (because there is none) that Israel is either committing or intending to commit genocide. Indeed, Israel's advance warnings and other steps to mitigate harm to Gaza civilians make clear Israel's goal is not genocide but, far from it, to minimize Palestinian civilian casualties while lawfully exercising Israel's rights to free the hostages, apprehend October 7 atrocity perpetrators, and protect Israel's population from further attacks.” 2/9

Former State Dept attorney Orde Kittrie on content of the ICJ provisional measures package: “The provisional measures package appears to reflect a kind of compromise in which the Western judges secured agreement from the Chinese, Russian and other non-Western judges to not issue a binding ceasefire order but in exchange agreed to both support lesser binding orders and include in the non-binding preamble numerous quotes from UN officials severely (and in my view unfairly) castigating Israel. As a result, the Court, in its reasoning and what it did order, lent far too much credence to South Africa’s false accusations.” 3/9

Read 9 tweets

Orde F. Kittrie

@ordefk

Mar 7, 2022

🧵As part of new Iran deal, US to reportedly lift all sanctions on many of Iran’s most barbaric abusers of human rights, including Khamenei, Raisi, Rezaei, Deghhan. This thread gives five reasons why that is a very bad idea and describes each of their abuses of human rights. 1/

Lifting sanctions on Iran's worst human rights abusers sends a dangerous message of impunity to Putin and his henchmen at a time when they are committing war crimes in Ukraine and human rights abuses in Russia. 2/

Lifting sanctions on Iranian human rights abusers abandons reformers, other dissidents in Iran. There were mass uprisings in Iran in 2018, 2019, 2020. Regime killed 1500 demonstrators in Nov 2019 alone. US should support the victims not free the perpetrators from consequences. 3/

Read 15 tweets

Orde F. Kittrie

@ordefk

Mar 5, 2022

🧵As war rages in Europe, US & Russia must carefully avoid getting close to the nuclear brink. The stakes are too high. Even in less tense periods, technical & other errors have several times nearly led to nuclear war between the US and Russia/USSR. 1/ ucsusa.org/resources/clos…

For example, on January 25, 1995 the launch of a Norwegian scientific rocket was misunderstood by Russian military as a US nuclear attack (Norway's letter notifying of the launch got lost in Russia's bureaucracy). Then-President Boris Yeltsin activated his "nuclear football." 2/

Yeltsin was told he had only 8 minutes to launch Russian missiles before the "US nuclear missile" could reach Russia and leave Russia defenseless. But US-Russia relations were relatively good and a sudden US attack must have seemed unfathomable. 3/ washingtonpost.com/wp-srv/inatl/l…

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