Six months into the US-Iran war, will there be any accountability for potential war crimes?

Melanie O'Brien, University of Western Australia

The Trump administration has consistently viewed itself as being above international law. Not only does it claim international law doesn’t apply to the United States, it has imposed sanctions on officials of the International Criminal Court (ICC).

With these views, the Trump administration is setting a dangerous precedent.

Six months ago, the US and Israel started a war against Iran that legal scholars agree was a blatant violation of international law. The US breached a fundamental prohibition on the use of force or threat of force, found in Article 2 of the UN Charter.

Since then, the way the US has fought the war has also come under scrutiny. Its actions in Iran must be monitored, investigated and prosecuted if the evidence warrants it. This is a crucial moment for international law in the face of concerted efforts to undermine and discredit it.

The laws of war

The body of law that applies in conflicts is called international humanitarian law, or sometimes simply the laws of war.

International humanitarian law is designed to limit the means and methods of warfare to prevent the meaningless suffering of combatants and civilians. Many (but not all) violations of these laws are known as war crimes.

The idea behind this body of law is to humanise war. As far back as 500 BCE, Sun Tzu believed it was better to capture a state and an army intact, rather than destroy them.

Given this, international humanitarian law prohibits attacks on civilians and civilian objects. A clear distinction is made between civilians and combatants, and between civilian and military objects.

Civilian objects include schools, hospitals, bridges, power plants, agriculture infrastructure, dams and water treatment plants.

Under the law, militaries must also take “all feasible precautions” to minimise loss of civilian life, injury to civilians and damage to civilian objects. This entails verifying that targets are indeed military objectives.

A “dual-use” object, which has both a civilian and military purpose, can be considered a legitimate military target but only if it makes “an effective contribution to military action” and destroying or disabling it will offer a “definite military advantage”.

An attack on a dual-use site is prohibited if it would cause disproportionate damage that seriously impacts civilians.

For example, a bridge could have a military purpose if an army crosses it to launch an attack. However, because a bridge is also inherently civilian in nature – and damaging it could significantly impact civilians – a strike on a bridge would likely constitute a war crime.

Indeed, the law says if there is any doubt about a site, it should be presumed to be a protected civilian object.

War without restraint

US President Donald Trump’s repeated threats to destroy bridges, power plants, oil wells and desalination plants demonstrate a clear willingness to violate these laws and commit war crimes. In fact, Trump has threatened to destroy Iran’s entire civilisation.

Secretary of Defense Pete Hegseth has likewise asserted the US prerogative to fight wars unencumbered by legal constraints, or “stupid rules of engagement”, as he calls them.

Hegseth has gone so far as to state there will be “no quarter, no mercy for our enemies”.

Granting quarter means to not attack a person who is no longer taking part in combat, for example, due to injury. Ordering denial of quarter, as Hegseth has done, is expressly prohibited under the laws of war. Violating this rule is a war crime.

Minab school attack

Let’s examine a few specific attacks over the past six months.

On the opening day of the war, a girls’ primary school was bombed in the southern town of Minab. It was Saturday morning, a school day for Iranian children. At least 156 people were killed, including 120 children.

A school is undoubtedly a civilian object. As teachers and students were present, it was also an attack on civilians. This means that on face value, the attack was unlawful.

The evidence collected since the attack also suggests a guided Tomahawk missile was used in the bombing. The US has these in its arsenal; Iran does not.

The school was located next to Islamic Revolutionary Guard Corps (IRGC) buildings, which were also struck in the attack. This may indicate the bombing of the school was a tragic error of mistaken targeting.

The Trump administration has not accepted responsibility for the bombing. An initial US assessment, however, found US forces were “likely” behind it and cited outdated targeting information.

However, the US has apparently still not conducted a comprehensive intelligence assessment, nor has it released its full investigation into the incident.

The US could argue the school was hit by mistake when it was targeting the IRGC buildings, therefore it is not liable for attacking a civilian object. However, it seems likely the US didn’t take the legally required necessary precautions and target verifications to protect civilians, which are certainly a violation of the laws of war.

Attacking water facilities

In June, two water storage reservoirs were damaged in strikes near the Strait of Hormuz. These facilities provided water for 20,000 civilians.

It is unclear whether the US intentionally struck the reservoirs. However, there are signs the attack was deliberate. Independent experts have described the weapon used in the strike as a precision-guided bomb and said the remoteness of the water facilities also indicated a precision strike.

Desalination plants have also been targeted by both the US and Iran during the war.

Desalination plants and water storage facilities are essential for providing fresh water to the civilian population in the area. What makes these attacks even more serious is the fact the Middle East is an extremely arid region that frequently experiences water shortages.

Attacking these civilian objects, therefore, seriously impacts people’s access to water. As such, it would qualify as a war crime.

Justice for war crimes

If the US and Iran are not going to investigate and prosecute their own personnel, can the International Criminal Court step in?

Unfortunately, the ICC has no jurisdiction in this war, as neither the US nor Iran is a party to the court. This means the only remaining option is another country investigating and prosecuting individuals in its own domestic court. However, these types of cases are complex and would necessitate the indictment of Americans to be tried abroad, which would very difficult to achieve and politically unlikely.

This is why full investigations and prosecutions into military actions in the war should occur in both the US and Iran. Accountability is key to ensure justice for those who committed crimes, but also to help deter future crimes.

This article is republished from The Conversation under a Creative Commons license. Read the original article.