Professor Alexander Orakhelashvili
Scepticism towards the Rule of Law in international affairs is not new. For a long time and over several generations, many international lawyers have entertained a deep-seated and widespread perception according to which major crisis situations cannot be realistically expected to be resolved on the basis of international law, and that instead power-political factors determine the outcomes of those crises. The international Rule of Law is often perceived to be antithetical, in an a priori and wholesale manner, to the primacy of power, to the effect that the latter operates to the exclusion of the former. This attitude is in its turn premised on the perception that power, whether national power or coalition power, can generate ready-made outcomes sought by the relevant power-wielders. The extent of the available power could thus determine the extent to which applicable legal requirements are relevant in the relevant crisis or situation. Owing to such perceptions, the degree of public or political approval of unlawful military adventures often depends on whether those adventures are perceived to be operationally feasible rather than lawful.
Such simplistic representation of power politics was witnessed at the early stage of the US/Israel-Iran conflict that began in February 2026. The attitude of confidence inundated media and television and there were multiple predictions that eventually Iran would have to yield to the overwhelming US-Israeli power; the US and Israeli military expertise and capabilities were far better than those of Iran and the latter would have to capitulate or make painful concessions or face the mission creep right up to land operations that would secure those painful concessions or even regime change or Iran’s collapse. President Trump’s repeated declarations of victory and insistence on Iran’s (at times demanded, at times accomplished) “unconditional surrender” throughout this conflict increasingly began to look anecdotal, and while in the retrospect more and more people would make that assessment, those statements were nevertheless reflective of the overall political attitude in the Western political circles as to the factors and circumstances that would or ought to determine the outcome of that conflict.
In a somewhat more articulated manner, and mirroring President Trump’s attitude about the irrelevance of international law, Federal Chancellor of Germany Friedrich Merz has initially said that, in the US/Israel-Iran conflict, “Categorizing the events under international law will have relatively little effect. This is especially true when these classifications remain largely inconsequential.” It was more important “to enforce fundamental interests with military force if necessary”, and he alluded to “Iran’s violations of international law,” in terms of domestic oppression, nuclear programme or support to terrorism.
A few weeks later, as the dynamics of the conflict was altered, Chancellor Merz was of a rather different opinion, to the effect that the USA was being humiliated by Iran. He reminisced of earlier failures of the American power in Afghanistan and Iraq. It is also rather curious that those earlier failures would not be remembered until the latest armed enterprise turned out to be a blunder. This is not out of tune with political attitudes witnessed earlier, well before Trump. Take, for instance, the triumphalist confidence Secretary of State Hilary Clinton with regard to the outcome of the war in Libya. However, developments over subsequent decades and the current situation in Libya could attest the nature of the victory that was achieved through the campaign to overthrow Qaddafi. This was also reflected in Vice President JD Vance’s statement that Iran collapsing or becoming a failed State like Libya was not in the USA’s interest. In any event, neither of those wars has made the USA or West in general any wealthier or more secure, powerful and influential, or better off in any other way.
Those past failures notwithstanding, when a new crisis happens, policy-makers or policy analysts of all description happen to entertain a triumphalist confidence again, to the effect that a use of force could be justified and wise even if unlawful, provided that it is operationally feasible, in the sense that the power-wielder will prevail and achieve their objectives.
Uses and discontents of the Thucydidean thesis
The initial articulation of the above attitude was witnessed in Melian Dialogue of Thucydides, where Athenians warn Melians that “the strong do what they can and the weak suffer what they must.” When Melians refuse to surrender, they get exposed to invasion, slaughter and annihilation. In modern times, a very clear pattern of confidence on Thucydidean premise has been witnessed in various contexts.
In one attempt to provide a generalised analytical framework for this attitude or policy in the current context of international relations, and writing for the Foreign Affairs magazine (105/2, 2026), Nadia Schadlow who was a senior official in first Trump administration, has argued that multilateral processes are inefficient and time-consuming. The alternative was unilateralism “delivering results”, and enabling to act with speed and efficiency and not being constrained by the multilateral process. Such unilateralism would enable the USA to “find their own solutions to the major problems of the age.” Schadlow’s article was written ahead of the Iran war and possibly in the aftermath of the US use of force against Venezuela in January 2026. Iran could be a perfect sample to fit within the above attitude, given especially Iran that was part of multilateral process at various international organisations before the war began.
The former official’s attitude was then reinforced by the statement of Stephen Miller, the homeland security advisor of the US Government (cited in the same issue of Foreign Affairs, p.61), again in the wake of the operation to abduct Venezuela’s President, to the effect that relations between countries are governed by strength, power and force since the beginning of the time.
According to one comment, “the Melian dialogue has defined how the West understands strength in its relation to justice in international relations.” Also on rather wide terms, Michael Ignatieff has suggested that “Thucydides and his dialogue have remained the cornerstone of ‘realist’ foreign policy in every State Department and Chancery in the world for centuries.”
As I said above, international lawyers too often intuitively at least feel themselves under pressure not to conduct their legal analysis that could risk that they are viewed as not attuned to the dynamics of the world’s political realities, and hence as unpersuasive or unsound. However, legal education does not provide international lawyers with any intimate knowledge of the world’s power-political dynamics. It happens more often that ready-made assumptions about the nature and extent of political or military power are endorsed and used intuitively. However, international politics works out there in the real world of autonomously operating States and power-centres, and what is expected, perceived or desired to be sufficient or adequate power will not invariably prove to be that in practice. As s corollary, international law works as a concrete legal system operating in a certain dimension of time and space and with its “internally” determined requirements and mechanisms to assess legal claims with regard to law-making, interpretation, or assessment of the legality of State conduct. No power political agenda can undo that.
To understand Thucydides power political thesis is possible through the realist analysis only, because power politics is a domain of political realists. The proclaimed end of history with the end of the Cold War has given an intensive boost to the perception of the primacy and invincibility of Western political power. The primacy of the Western power began to be taken as granted and the analysis of its detail and dynamics was no longer a priority. The realist theory began falling out of fashion. This coincided with the rise of liberal and constructivist theories taking front seat in the debate. It was against this background that Robert Gilpin wrote a paper titled No One Loves a Political Realist, while Legro and Moravscik have wondered whether anyone still was a realist. That re-focusing of the debate led to the decrease of focus on detail and nuance as to whether anything done in pursuance of a “right cause” is feasible on power political terms.
It is obvious that various countries possess various degrees of power, but that is not the same as power invariably translating into concrete and tangible outcomes across the board. As explained earlier, the Thucydides thesis is not a normative proposition but a purported generalisation of actual political occurrences. Furthermore, the Melos episode focuses on a wholesale result obtained using what happened to be the unrestrained power in the relevant concrete case. However not all situations are uniform and a combination of factors in that case may not be invariably available in other crisis situations.
Let me break this down, to expose discontents and differentials of the Thucydidean equation.
First, there are geopolitical factors. Athens was a large city-empire acting against Melos which was a small, easily accessible and essentially undefended island. Those were circumstances not replicated in the case of Iran that has a far bigger power base and capability to project power far beyond its territorial boundaries.
Second, a relative power proportion of warring States can determine how successfully the narrowly or broadly defined objectives could be accomplished. The war of Britain with Zanzibar, known as the shortest war in the world history, has lasted for 45 minutes. The American use of force in Grenada is another pertinent example, also being practically the only war pretty much over the past century that the USA won militarily when using force alone. Along the similar lines, if in addition to accomplishing the limited goal of President Maduro’s abduction, the US forces had gone all the way in Venezuela, one might wonder if that would yield a beneficial or satisfactory result. In the aftermath of Venezuela, a wise political counsel would be bound to advise restraint rather than muscular unilateralism.
Third, the opponent’s condition and willpower. In the case of Melians, instances of defection took place, and their resistance to Athenians collapsed. This was expected with Iran too, but it did not happen.
Fourth, geographical conditions. The Hormuz strait ought to have been but was not at everyone’s mind from the outset, as opposed to the alarm afterwards when consequences of Iran’s presence in it became visible.
Fifth, external support of the entity targeted by force. In the Second World War, Germany has occupied the Netherlands with the relatively little effort. In the Sovfracht case, decided by the House of Lords, having to apply the enemy alien rule of English law to the Dutch, Lord Wright felt “a natural repugnance to describing as enemies of this country those loyal and patriotic subjects of Holland who have had the misfortune to be forced to reside there after the German occupation.” However, he continued, “the Dutch, so far as they are in Holland, must, until the day of deliverance, submit to the German yoke and also accept the comparatively minor affliction of being described for limited purposes and occasions as being in law enemies vis-a-vis Great Britain. Such [was] the effect of the common law of England.” Also, by that time, the centuries-long operation of the European power equilibrium had long broken down, which is what had made the German occupation of the Netherlands practicable at a relatively lower cost. In contrast, over past few years Ukraine has been receiving military assistance from the West. Similarly, according to reports, Iran has been receiving intelligence from other countries and using it to its own advantage.
Sixth, there can be super-Thucydidean moments, involving a combination of several great powers against smaller country, as witnessed with the partition of Poland in the late 18th century. But that does not happen very often, and in the current relations between great powers that pattern is very unlikely to be replicated anytime soon.
Hence, when Athenians told Melians that “the strong do what they can and the weak suffer what they must” they relied on a combination of factors that is not readily available in many other contexts of power politics including the Iran situation.
Enter legal reasoning
About a quarter of century ago, Sir Christopher Greenwood wrote on the legality of US-led operations in Afghanistan from 2001 onwards. His conclusion was that “the existing legal framework is perfectly capable of accommodating the use of force against terrorist groups.” In support of that conclusion, Greenwood has used the antiquated Caroline argument (also discussed here) to (re)interpret modern jus ad bellum. He suggested that Caroline which arguably endorses anticipatory self-defence “remains good law today” and it could be used to justify use of force beyond imminence to which criteria Caroline had initially endorsed, also thereby involving a confusion between the type of the underlying threat and its imminence. This was a rather far-reaching thesis. But Greenwood’s article also included an epigraph consisting of the claim of US President GW Bush that “The war goes on and we are winning.” A reader is then left to guess whether and to what extent a power-political confidence that could be generated by the above-cited Bush statement might have dictated or influenced two separate steps in the legal reasoning, namely importing Caroline into the modern jus ad bellum reasoning, and then interpreting the Caroline standard expansively. For, if nothing else, if the modern jus ad bellum justified the US-led operations in Afghanistan, that must be the case regardless of whether or not the USA was going to win that war. Also on a related note, how the USA “won” or prevailed in the Afghanistan conflict is a different matter to consider.
And more recently in relation to the Iran crisis, we saw more express calls to re-interpret law on arguably realistic terms, amidst the war that has been pursuing rather unrealistic aims that were not even uniform as between the States that initiated the use of force.
And if international lawyers can freely reinterpret jus ad bellum when it is judged to be suitable in the relevant political context, why stop there? Why not think or argue jus ad bellum entirely out of the way? The US State Department document on Operation Epic Fury and International Law, authored by RD Rubinstein, the Department’s legal adviser, goes precisely that way. Arguing in a similar spirit, Olivia Flasch has suggested that as “The JAB framework is unlikely, in itself, to prevent the use of force where States have already chosen to engage in armed conflict” and hence “the constraints of JAB do not continue to govern the legality of individual strikes once an IAC has arisen.”
The Rubinstein document tries to portray Iran as the attacking State, and suggests that “even if initial attacks are limited in scope but the attacking State continues to present a significant threat or to perpetrate further attacks specifically calibrated to avoid a larger response, the defending State may be justified in responding through an operation sufficient to decisively end the conflict” (emphasis added), and thereby presumably make Iran suffer what it must.
Those “further attacks” that are “specifically calibrated to avoid a larger response” could in fact just as well and more simply be ones that are within Iran’s capability rather than being a product of some manipulative calibration. To put it simply, Iran has been attacking whatever it had the capability to attack (unless one works on the premise that their capability to react against the US-led aggression was greater and they chose not to use their available power and capability to the full extent, in which case the question of whether the US-lead operation would have been “sufficient to decisively end the conflict” would need to be addressed afresh, or de novo as legal parlance would go).
That was only a side point, though. The main legal issue here is about when, or as of which moment, the armed attack authored by Iran and generating the relevant or “ongoing” international armed conflict would have taken place. The Rubinstein document alludes to various attacks on US personnel or facilities that the US blames Iran for. The examples alluded to in that document do not substantiate the occurrence of any armed attack or conflict between USA and Iran as of February 2026. On the empirical plane, moreover, letters submitted by the US government to the Security Council and cited in the Rubinstein document do not even directly refer to the Iranian State, thus leaving open the issue of actual control and authorship of relevant operations open. Moreover, one of the latest letters cited in the Rubinstein document, dated of 29 January 2024, does not mention Iran at all, and none of the remaining letters expose sufficient facts of Iran’s involvement in relevant attacks. At any rate, the gap of about two years between the events alluded to in those letters and Operation Epic Fury is not properly explained. Thus being at variance even with US government’s own earlier views and practices, the Rubinstein document does not properly account even for the US government’s own position on this matter, let alone for the relevant requirements under international law as to the valid scope of self-defence: authorship of the initial attack; the timing of response and the manner of response.
The Rubinstein document also projects the existence of an armed conflict that has allegedly continued since 2025 five-day war between US/Israel and Iran, including almost a year without hostilities between those States. The document alludes to unidentified “some” who have argued to the opposite effect, and then strikes a presumptive tone to the effect that, “if a conflict has not ended, then it must be ongoing” (my emphasis). Before you look into the end of the armed conflict, however, you have to identify its triggering event, such as an armed attack by one State against another State, and then how that conflict subsisted through sustained military operations between those two States. In the context of Iran-US/Israel relations over past couple years, periods of sustained armed confrontation were far shorter than those in which there was no such armed confrontation.
It will be recalled that is the ICRC commentary to 1949 Geneva Conventions which is, as explained earlier, rather poorly evidenced, suggested that international armed conflicts exist even in the absence of actual military confrontation between the two or more States’ armed forces. The Rubinstein document does not expressly refer to that commentary; instead, it includes reference to ICRC’s Q&A document, which has a questionable legal status and certainly does not command any legal authority.
If political aims and motives behind the above legal argument is considered, then a state of a putative international armed conflict, initiated with no more obvious legal grounds than Athenians could cite to Melians, would be continued till it is conclusively the case “the strong do what they can and the weak suffer what they must”. This is a rather bespoke legal reasoning tailored to suit open-ended and adventurist political agenda of the power-wielder that chooses to engage in a war that is both illegal and counterproductive. By providing such advice, a legal expert inevitably if subconsciously gets involved in that political adventure and becomes part of that far-reaching political agenda, and contributes to that agenda with an attempt to portray it as legitimate it without having sufficiently ascertained whether it is operationally feasible.
The outlook
It is not unlikely that Thucydides (and probably also Athenians whose story he tells) would be surprised to learn that, most of the time, the Melos episode is taken not as a food for thought but as a concrete direction to policy-makers on what or how to think or act across the variety of situations. And then false political motivators or confidence could radiate into the legal community. It is clear that attempts of expansive reinterpretation of jus ad bellum are to an important extent driven by power-political confidence that the aims and objectives pursued by relevant power-wielding States are feasible, realistic, achievable and supported by those States’ power preponderance over their opponents. To be clear, I am not suggesting that operational feasibility should justify the manipulation of legal reasoning. What I am saying is that this is an especially problematic category of cases where such manipulation takes place, because it both generates a strong motivation driving those adventures and also works rather effectively to put international lawyers’ minds away from the law.
In many situations, relative strength of States engaged in an armed conflict does not always carry the day. In practice, the strong do not always succeed at what they seemingly can and the weak do not always suffer from what they are expected to suffer. So far, a widescale and unjustified destruction and human suffering is just about the only thing that the strong did as they could and the weak, multiplied across the Persian Gulf region, have suffered as they “must”. The outcomes purported to be achieved through the aggressive war against Iran, regarding the nuclear issue, regime change, support for proxy forces or even the free flow of oil and trade through the Hormuz Strait, remain unachieved. Nevertheless, even afterwards the Thucydidean attitude has persisted in the Trump administration approach to war as well as negotiation with Iran and, most lately, US Treasury Secretary Scott Bessent has proposed strangling Iran’s economy through tough sanctions. Neither of those strategies have yielded a power-political success, however. Instead, the outcome is adverse economic and security implications practically on the global scale, defection of strategic allies of the USA in various parts of the world, even more compromising the potential of the USA playing the role of a (free) world leader again. The gap between international lawyers being attuned to political agenda and being removed from political reality is not that wide, after all.
A blind adherence to the Thucydidean thesis is not a realist attitude, but an adventurist one. Alternatively, positive international law could itself be a reflection of what is feasible on political terms. Positive international law could, thus, be viewed not as an abstract normative superimposition on political realities, but instead as something that reflects socio-historical realities and accounts for basic features of the power-political system and process in the world. The fact that international law is a stateless decentralised system focusing on territorial sovereignty and autonomy of States could itself be a reflection of the socio-political reality that coercion of sovereign States does not work in most cases or, where it works for the time being, it does not bring good results in the longer run. Hence jus ad bellum with its “restrictive” criteria as part of positive international law is there not for a whim, but for a reason, and it expresses a deep-seated socio-political reality ignoring which does not do any good to anyone. Power-political factors could actually require the same conduct of State behaviour as the Rule of Law imperatives require, and hence it could be more rewarding if States keen on using coercive force were to get on with other States as independent entities rather than undertake adventures to force regime change in them. But I am fully conscious that in many political quarters that would be a rather big ask, and that hence, the world is hardly insured from further coercive adventures involving excessive power-political confidence, and produce more international lawyers who would be straddling into the wrong side of history with their attempts to validate unrealistic political agenda through proposing a pseudo-realistic reinterpretation of the rules of international law.