Secretary of State Marco Rubio, as well as others such as Speaker Mike Johnson, have made the following claim to justify the U.S. attack against Iran: the threat from Iran to the United States was “imminent,” because Israel was about to strike Iran, and Iran would likely immediately respond against U.S. bases if such an attack occurred. Operation “Epic Fury” was thus an act of preemptive – or what international lawyers call anticipatory – self-defense, aiming to curtail Iran’s response to an upcoming Israeli attack. In Rubio’s own words:
“The imminent threat was that we knew that if Iran was attacked, and we believed they would be attacked, that they would immediately come after us, and we were not going to sit there and absorb a blow before we responded … We went proactively in a defensive way to prevent them from inflicting higher damage.”
The claim’s impetus may well be domestic: an attempt to square the circle to justify the administration’s bypassing of Congress and not seeking authorization before attacking Iran. It should be added that, a few hours later, President Trump contradicted this argument, which itself raises suspicions toward the seriousness of this claim. But it is the closest we’ve seen to an attempt at an international law justification for the strikes from the Trump administration. And more significantly still, Rubio had reportedly presented a very similar argument before the attack on Iran took place in a secret meeting with the Gang of Eight, the name for the heads of the two chambers of Congress and the chair and ranking member of the two congressional intelligence committees. Indeed, the argument is interesting because it raises complex and underexplored conceptual questions about the nature of preemptive self-defense. However, in the real world context in which this claim is being made, it collapses completely.
Double Uncertainty and Dispersed Responsibility
To begin with, there is a structural weakness in this argument, in the sense that it amplifies the key problem associated with preemptive self-defense – the issue of uncertainty. In “regular” cases of preemptive self-defense, the putative defender is managing uncertainty in relation to one actor. Here, however, the uncertainty is doubled: first, it is uncertain whether the initial actor will actually embark on the attack that is expected to prompt the reaction against you (or could be stopped from doing so); and additionally, there is uncertainty whether the second actor will in fact follow through with its threat (or could be swayed from doing so).
For this reason alone, it is unlikely that this type of double-preemption should be recognized as a lawful form of self-defense under international law, where such doctrines are easily abused (and the law is already ambivalent about allowing even one layer of uncertainty). But there are deeper flaws with this type of justification, beyond this epistemic problem.
It is helpful to think of a simplified hypothetical. Assume that Isabella is threatening to attack Ira. Ira, in response, threatens that if Isabella attacks him, he will immediately shoot Usa. He thinks – for any reason – that this will stop Isabella’s attack. What are Usa’s options? Can she shoot Ira to preempt his response to Isabella’s attack? What do we need to assume for this to be the case?
First, assume that Isabella, Ira, and Usa have no meaningful relations between them prior to this scenario. It seems clear that in such a case Usa would be an innocent victim if Ira responds against her. She has not done anything to forfeit her rights, is not threatening Ira, and is therefore not liable to any attack. This is most obviously true if Isabella’s use of force against Ira is justified. Here, Ira would be in the wrong by responding in any way – including, of course, against Usa. In this case, setting aside the epistemic problem mentioned above, a preemptive act by Usa against Ira can be at least theoretically justified (again, if Isabella’s use of force against Ira is itself lawful and if Usa has credible and concrete information that Isabella is indeed about to attack Ira).
However, if Isabella’s initial use of force against Ira is unjustified, the situation becomes more complex. If Ira would resort to force against Usa in response to Isabella’s unjust attack, Usa would still be an innocent victim entitled to act in self-defense against Ira, although what triggered Ira’s reaction was an unjust act by Isabella (shifting for a moment to the real world, this seems to parallel the situation concerning Iran’s attacks against states such as Oman that did not take part in the conflict). However, double-preemption – or at least the type Rubio was invoking – refers to a decision that is taken before the initial attack. Ex ante, before Isabella’s attack materializes, who should be the target of Usa’s preemption? Isabella or Ira?
It seems that our intuition here can pull in different directions. On the one hand, since Isabella is the one who is expected to initiate the chain of wrongfulness, Usa’s preemption should arguably be directed against her. After all, she is the condition sine qua non for this chain of events, and as such bears the most responsibility for all that takes place from her initial wrongful act.
On the other hand, Ira is an independent agent and it is he who threatens Usa directly and wrongfully. This, it can be argued, engages an adversarial relationship which justifies Usa’s specific preemption against him. Perhaps, both Isabella and Ira are separately and together responsible for the threat against Usa, and she is thus entitled to act preemptively against both; the decision against whom to act is hers, in accordance with her capabilities and the circumstances of the situation. For example, she can decide to act against Ira, and not Isabella, because Isabella is out of her range, or because she fears other consequences. But if this decision is affected by some preference Usa has toward one of the parties, her motivations immediately become suspect.
Where Double Preemption Collapses
Recall, in this context, that the hypothetical above assumed that the three agents involved do not have a meaningful previous relationship. But the moment we assume that Isabella and Usa actually work together against Ira, the double-preemption argument collapses altogether.
Indeed, it seems that a precondition for any claim of double-preemption is that Usa is not somehow involved in Isabella’s initial attack. This is because if Usa is implicated in a meaningful way in Isabella’s attack against Ira, she cannot invoke preemptive self-defense against a response to an anticipated act that she, herself, contributes to. She might as well act preemptively against herself, which is, of course, absurd. In such a case, rather than acting preemptively against Ira, she would be required first to stop her active involvement with Isabella’s plans. Likewise, if she has influence over Isabella,she would have to use her influence to dissuade Isabella from attacking Ira. Otherwise, Usa fails the necessity test of self-defense against Ira.
Returning to real life, Rubio’s double-preemption argument simply does not satisfy this precondition. There is no remotely credible argument that the United States was not involved in Israel’s first strike against Iran, which was jointly planned for months.
President Trump himself took pride in providing the intelligence that enabled the targeting of Iran’s Supreme Leader Ali Khamenei, which occurred at the very outset of the war the two countries launched together. If the United States was becoming concerned about the consequences of this attack before it took place, it could easily have used its massive influence on the Netanyahu government to prevent its attack (influence that comes from, among other things, being Israel’s top weapons supplier by a wide margin, and the guarantor of its “qualitative military edge” in the region). For that reason alone, the double-preemption argument fails, simply because you cannot double-preempt against an action to which you are yourself a party.
If the Trump administration wants to make an argument for an imminent threat of armed attack – whether before the UN or in front of Congress – it needs to make the straightforward case that such a threat against Israel or the United States existed prior to their joint attack on Iran. But as many have already pointed out, in this case, such an argument simply does not exist – notwithstanding the abhorrent actions of the Iranian regime. The double-preemption argument, in this context, is nothing more than an easily exposed attempt to mask this basic problem.
