The U.S. State Department published its legal defense of the war against Iran on Tuesday.
A few observations 🧵
1. As a matter of public diplomacy, it's notable that collective self-defense of Israel comes first, individual self-defense of the United States comes second.
2. The statement concedes that the U.S. and Israel were *not* responding to an actual or imminent armed attack by Iran on Feb. 28.
Instead, they were already in an armed conflict with Iran, and were therefore free to attack Iran, any time, at will.
3. When did this armed conflict begin?
It’s hard to say.
Maybe June 2025.
Maybe April 2024.
Maybe 2019.
Maybe earlier.
Maybe we have always been at war with Eastasia.
4. Factually, in June 2025, we attacked Iran.
In April 2024, Israel bombed an Iranian consular building in Damascus (unlawfully), Iran retaliated (unlawfully), Israel retaliated again (unlawfully) and both sides decided to leave it there.
5. Sporadic attacks by Iran-backed militias in Iraq hardly explain bombing petrochemical factories outside Tehran.
6. Legally, the argument conflates two ideas: armed conflict and armed attack.
The protective rules of IHL apply throughout an armed conflict, even during lulls in fighting.
For example, you should take ‘passive precautions’ to protect civilians in case fighting resumes.
7. In contrast, the UN Charter prohibits the use of force except in response to an ongoing or imminent armed attack, including after a prior attack has clearly ended.
The point is to *prevent* a resumption of hostilities.
8. As the U.S. concedes, there was no ongoing or imminent armed attack by Iran.
Ezra Klein's interview with Philippe Sands is very good overall.
But I want to reiterate that the ICJ has never said that the definition of genocide requires a "single intent."
Nor does the ICJ's standard of proof preclude a finding of genocide in cases of plural intent.
1/🧵
The definition of genocide is obviously consistent with plural intentions.
If a State got up in from of the ICJ and said "well, yes, we intended to destroy a substantial part of the group, but we also intended [fill in the blank]" that is an admission, not a defense.
2/
The ICJ's standard of proof allows for a finding that the only reasonable inference that can be drawn from a pattern of conduct is that it was intended to destroy a substantial part of a group and also intended to achieve other goals.
3/
"When large numbers of civilians are systematically and indiscriminately being bombed, shot and starved, states have a legal obligation to stop the violence, regardless of the label applied."
Genocidal intent includes an intent to destroy a substantial part of a group as a means to achieve further military or political aims, such as the forcible displacement of the rest of the group.
This is basically how the ICTY and ICJ saw Srebrenica.
In my view, the ICJ in Croatia v. Serbia did not ignore the possibility of parallel (or plural, or instrumental) intentions, or make genocidal intent impossible to prove when other intentions are present.
2/
The ICJ found that the killings “were not committed with intent to destroy the Croats, but rather with that of forcing them to leave the regions concerned."
The Court found there was only one intent, and it was not and did not involve an intent to destroy part of a group.
"Under the Fourth Geneva Convention, Israel as the occupying power has an obligation to provide unconditional and adequate supplies of essential good and services to the entire population under its control."
"Israel is not fulfilling this obligation."
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"When the population is not adequately supplied, the parties ... have an obligation to allow and facilitate the rapid, safe, and unimpeded passage of humanitarian assistance to all persons in need."
"This obligation is results-based. It's not merely an obligation of means."
2/
"Neither Hamas nor Israel is complying with this obligation."
"We would also like to recall that the use of starvation as a method of warfare is prohibited and constitutes a war crime."
The ICC Pre-Trial Chamber has rejected Israel's request to withdraw or vacate the arrest warrants for Netanyahu and Gallant and to suspend the ongoing investigation.
I will add a 🧵 below soon.
1. The PTC satisfied itself that it has jurisdiction over the case when it issued the warrants per art 19(1).
The Appeals Chamber's decision on Israel's jurisdictional challenge under 19(2) did not invalidate the PTC's 19(1) decision.
2. The AC decision also did not affect the PTC's ability to adopt the reasoning or argumentation of (a different composition of) the PTC's 2021 decision that the Court has jurisdiction over crimes committed in Palestine.