President Trump’s demand of “unconditional surrender” by the Iranian regime is both absurd and terrifying.
It is absurd because history’s examples of unconditional surrender mostly have followed brutal destruction — Dresden, Hiroshima, Nagasaki — quite unlike the narrowly targeted strikes that the U.S. and Israel have launched on Iran. And it is terrifying because the president’s grand delusions just might march us down that road to Armageddon.
Beyond courting that calamity, the U.S. attacks on Iran violate a hallowed principle of international law. The U.N. Charter allows attacks on sovereign nations in only two cases — if authorized by the U.N. Security Council or in self-defense after an armed attack. Because waiting for an armed attack can prove disastrous, international law has long countenanced “anticipatory” self-defense to ward off imminent attacks, a standard most experts say prevails under the charter today.
This principle of imminence found a prominent champion in Daniel Webster, who twice served as Secretary of State in the mid-19th century. After the British justified an attack on U.S. territory as an act of self-defense, Webster delivered a famous riposte. Self-defense can justify one nation’s invasion of another, he wrote in 1842, only if the “necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment for deliberation.” Modern proponents of a right of anticipatory self-defense have embraced Webster’s narrow limits.
No serious observer thinks that Iran poses an imminent danger to the American people or U.S. territory. In flouting the requirement of imminence, the Trump administration is not the first to ignore Webster’s vision. But the historical precedents for claims of anticipatory self-defense when facing non-imminent threats are a shameful lot.
In 1913, the Austro-Hungarian Empire weighed a preemptive war against Serbian aggression, a prelude to the attack that later touched off World War I. The Nazis asserted anticipatory self-defense to justify their invasions of Norway and the Soviet Union. And President George W. Bush invoked the doctrine of preemptive self-defense in the runup to the 2003 invasion of Iraq. Bush belittled concerns that “we must not act until the threat is imminent.”
The catastrophic toll of the Iraq War reveals Webster’s wisdom. By acting before the need for self-defense was “instant,” we waged war when there was no need at all, as Saddam Hussein’s weapons of mass destruction proved illusory. Thousands of Americans and hundreds of thousands of Iraqis perished, and America’s moral authority bled dry. Russia, likewise claiming anticipatory self-defense, seized on our precedent in invading Ukraine.
Iran’s nuclear program, unlike Saddam’s, is no fantasy. But its sheer existence poses no imminent threat to Iran’s Middle Eastern neighbors, much less to us. Webster’s injunction that a nation may attack in self-defense only in cases of “an instant and overwhelming necessity” was only incidentally about timing. More fundamentally, it was about alternatives and the need to avoid war till there was “no choice of means.” But as the administration’s recent talks with the Iranian regime make clear, alternatives to an American attack remain. Time is not yet of the essence.
Webster’s formula gained worldwide influence under international law and played a critical role at the Nuremberg trials, established by the U.S. and our allies after World War II. Among the criminal acts alleged against German leaders were “crimes against peace,” defined as the “planning … or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances.” Repudiating claims that Germany had acted in self-defense, the tribunal declared in Webster’s words that “preventive action in foreign territory is justified only in case of ‘an instant and overwhelming necessity for self-defense leaving no choice of means, and no moment of deliberation.’”
Those who prosecuted the Nuremberg trials believed the principles they embraced would give moral guidance to the future. Supreme Court Justice Robert H. Jackson, who served as U.S. prosecutor, declared that “while this law is first applied against German aggressors … if it is to serve a useful purpose it must condemn aggression by other nations, including those which sit here now in judgment.”
As I argued on this site in another context in 2017, a claim of anticipatory self-defense imposes on us the moral obligation to judge our evidence scrupulously and to act only in case of a genuine, vital, near-term threat to our security. When history looks back at America’s acts in Iran, it will judge us both by the quality of our evidence and by our moral justification for force in the face of peaceful alternatives.
Trump has often boasted of his purported opposition to the 2003 invasion of Iraq, in contrast to Hillary Clinton’s vote in favor. Here Trump airbrushed history, for when Howard Stern asked in the runup to war if the U.S. should invade Iraq, Trump reportedly shrugged, “Yeah, I guess so.”
Although his scuttling of the 2015 Iran nuclear agreement brought us to this point, Trump can still secure his legacy as a peacemaker by walking us back from the brink and striking a new, more secure, more enforceable deal to suppress Iran’s nuclear ambitions.
If anything will deter Trump’s headlong rush toward war, it is his hope for history’s acclaim — he seems to crave a Nobel Peace Prize. And even in a world of cruel ironies, the Nobel committee won’t likely bestow that glory on a warmonger.
George Fisher is a professor at Stanford Law School. His opinions do not necessarily reflect those of his employer.
