Tracking IHL violations in the US-Israel war on Iran

Under international law, the decision to wage war and the rules that apply within war are entirely different legal frameworks. The decision to wage war is governed by the United Nations Charter, which prohibits the use of force between states except in self-defence or with Security Council approval.

Once a war has started, however, regardless of whether it is lawful or unlawful, defensive or aggressive, the same laws apply. These rules are generally found in the Geneva Conventions and their Additional Protocols and are premised on the notion of ‘equality of belligerents’. The same laws bind every party to the conflict, and even if one party flouts those norms regularly, it does not give the other the right to disregard them.

As over 20 countries across continents are now impacted by the illegal war launched by the US and Israel against Iran, with war crimes and crimes against humanity being committed in the course of hostilities, it is difficult to disagree with the notion that this is the original sin from which a multitude of evils flow.

Based on the timeline, we asked international law expert Ayesha Malik on how the these events may be assessed under international humanitarian law. Here’s what she had to say.

War has always been used between empires, states and peoples to resolve disputes in the attainment of certain aims. The regulation to resort to force can be traced back to ‘just war’ doctrines found in classical Greek and Roman times, which led to conditions being placed on the launching of war to restrict its prevalence.

Under this notion, war could only be launched under the authority of the sovereign; it required just cause (reaction to a prior wrong), and was to be launched with rightful intention (such as doing justice and attaining peace). However, after the rise of the nation-state following the Peace of Westphalia in the seventeenth century, states acquired the right to resort to force or war to pursue their claims or protect their security and interests.

International law was generally viewed as indifferent to the use of force by states, so the decision to go to war was not a matter of law, but of expediency, and to be used as an instrument of statecraft. States were still expected to proffer justifications for their actions; however, as they were not viewed as having complete freedom to act, there was no legal norm which prohibited forcible actions. This changed somewhat in the nineteenth century, which saw the first collective security regime in the form of the Concert of Europe (1815-1914), an alliance between the UK, Austria, Russia, Prussia, and France.

The Hague Convention I (1907) included a promise by contracting parties “to use their best efforts to ensure the pacific settlement of international disputes”, but there were no legal norms beyond trying their best not to wage war.

After World War I, states engaged in efforts to regulate the use of force and serious attempts were made at collective security. The League of Nations (1919-46) created a new world order premised on collective security, the obligation to resolve disputes peacefully, limitations on the right to wage war and collective action against aggression. The Kellogg-Briand Pact (1928) also condemned recourse to war, but only as an instrument of national policy and did not define war. Shortly after the pact, Japan invaded Manchuria in 1931, Italy invaded Abyssinia in 1934, and finally Germany invaded Poland in 1939.

After World War II, nations under the guidance of Churchill, Stalin, and Roosevelt adopted the United Nations Charter on June 26, 1945, at the San Francisco Conference. One of the main aims of the drafters of the UN Charter was “to save succeeding generations from the scourge of war”. This was a revolutionary moment in the history of the legal framework governing the use of force. States were giving up their right to use force as a means of asserting or protecting their interests and legal rights, but in return, the UN was to have the power to protect the interests of states in circumstances where force was used against them or where there was a threat to the peace.

There are three key provisions which deal with the use of force in the UN Charter:

The prohibition on the use of force in Article 2(4) to which there are two exceptions: a. Article 51 acknowledges the inherent rights of states to individual and collective self-defence if an armed attack occurs,

b. Article 42 allows the Security Council to authorise the use of force when it considers that there has been a threat to the peace, breach of the peace or act of aggression.

There are several contentious areas within the right to launch a war under international law; namely, when can a state do so in anticipation of an armed attack launched against it? When can it do so in response to an armed attack by an armed group, with or without the armed group being linked to a state?........

© Dawn Prism