Iran’s regime is vile, but what Trump and Netanyahu have done is a war crime

In a lawless world, it may seem idle to judge the conduct of leaders like Donald Trump and Benjamin Netanyahu by international rules to which they are indifferent. But those who use their power to invade other countries commit what the judgment at Nuremberg described as the supreme war crime — that of aggression — because they bear responsibility for all the death and dismemberment that war inevitably entails, for civilians as well as soldiers.

Leaders are entitled to invade only in self-defence — the excuse proffered by the United States and Israel in Monday’s Security Council debate — or with the approval of that Council (which it withheld) or else, as in the case of Kosovo, without such approval where the right of humanitarian intervention arises.

Trump is not a humanitarian, and neither aggressor has sought to defend itself on this ground. But might it have been open to some more respectable “coalition of the willing” to do so?

It is necessary first to dispose of the pretence of “pre-emptive self-defence”, that perversion of international law invented by the Bush administration to justify its attack on Saddam Hussein’s Iraq in 2003 and used by Vladimir Putin to justify his invasion of Ukraine. It was used by both Israel and the US in defence of their attack on Iran.

But it is not part of international law, whereby, on long-standing authority, self-defence can only be used against a threat that is imminent, or at least reasonably likely. With many of its military leaders and nuclear scientists dead, and its facilities at Fordow bombed, Iran posed no immediate threat to Israel, much less America.

The full-blooded attack on Saturday, together with the targeted assassination of Iran’s supreme leader, was a war crime that could have no justification in self-defence. It came just weeks after the Islamic Republic had, under secrecy imposed by an internet blackout, murdered at least 15,000 (probably twice as many) of its own peacefully protesting citizens and mutilated many others by shooting them in the eye. This appallingly cruel state response was ordered by Ali Larijani, the head of the National Security Council. It was approved by the late supreme leader and incited by the chief justice.

It came after government newspapers had demanded a return to “the spirit of 1988”, when Iran commissioned the worst crime against humanity since the Nazis by murdering thousands of political prisoners. This atrocity was covered by lies to the UN and by the prohibition of mourning at the mass graves where victims throughout the country were buried.

I happened to conduct the first inquiry into those events at the behest of the Abdorrahman Boroumand Centre for Human Rights in Iran, interviewing survivors and prison witnesses who reported how thousands of inmates were hanged without trial — six at a time — from gallows erected in Evin Prison and other jails. I assessed the crime as the worst commissioned against prisoners since the death marches at the end of the war against Japan.

My findings were endorsed by inquiries by Amnesty International and, last year, by the UN’s Special Rapporteur on Iran. Many of the perpetrators were promoted and are still alive. The late supreme leader was president at the time, and one notorious tribunal judge, Ebrahim Raisi, became president before he was killed in a helicopter accident on May 19, 2024.

Most of the murders and tortures would be available for prosecution by a new government of Iran. And that, of course, is the problem Trump overlooked in his naive demand that the Iranian people “take back their country”. They do not have the power or the firepower to do this — all guns are in the hands of the Islamic Revolutionary Guard, who are unlikely to relinquish them.

There is no organised opposition. Reza Pahlavi, the exiled son of Iran’s last shah, is an absurd candidate to lead them, as his father was an infamous torturer through SAVAK, his secret police force. Maryam Rajavi, who heads the National Council of Resistance, is a favourite of the Iranian diaspora, but her local support is untested. So what happens next, after four weeks in which Trump promises to blast and bomb this vile theocracy?

The UN is responsible for allowing Iran to get away with the mass murder of its own people, and this would be a good time for it to act under Chapter VII of its own charter and set up an international court to investigate and indict government officials who carried out the prison massacres of 1988, as well as those who ordered the killing of peaceful protesters in the past two months. There can be no peace without justice, whatever happens to any future government.

Otherwise, no good can come of this war, as death and destruction descend from the skies — the first victims being 175 people, predominantly children, whose school was unaccountably bombed in its opening hours.

Trump, at least, can never now receive the Nobel Peace Prize which his vainglorious presidency so desires. He cannot expect to lead America’s allies — including Australia. If America itself cannot stop him and this war, without the consent of Congress and in breach of the US Constitution, then it is time to work towards a new rules-based order that excludes a UN Security Council veto, currently abused by Russia, the US and China (which may shortly invade Taiwan).

These warmongering powers should have no say over a set of rules that should instead reflect the values of decent democracies.

Geoffrey Robertson AO KC is a former war crimes judge and the author of Mullahs Without Mercy and the recently published World of War Crimes (Penguin Random House).