Israel said it launched a pre-emptive attack, along with the US, against Iran on 28th February, starting a debate about whether this act has any acceptability under international law (IL) as it not only poses a serious threat to IL, but also to state sovereignty. A pre-emptive strike is a military action taken by a state in response to a threat from another state to stop the threatening state from carrying out its threat.

A pre-emptive strike conflicts with the “just war theory” in two ways: first, it is carried out before the other side attacks with military force, therefore making the side carrying out the strike the aggressor; and secondly, it is usually carried out before a formal declaration of war.

During the Six-Day War of 1967, Israel was the first to use military force against Egypt, so Israel appeared as an aggressor and in the wrong. However, Egypt had arguably carried out several actions before the Israeli attack, such as announcing a policy of hostility towards Israel, putting its military forces on maximum alert, and strengthening its forces on the border with Israel. It was therefore argued that this level of threat provided a moral justification for attack.

Michael Walzer has presented certain conditions that must be satisfied to justify a pre-emptive strike, such as an obvious intention to cause injury; active preparations that turn that intention into a concrete danger; and a situation in which the risk of defeat would be greatly increased if the fight were delayed.

However, Israel was not considered innocent when there was international condemnation after it launched a surprise attack on the French-built Osirak nuclear reactor in Iraq in 1981. Perhaps counsel for Israel might try to salvage the self-defence argument by quoting the Israeli Deputy Defence Minister, Mordechai Zipori, who said that, “What constitutes the defence of the State of Israel shall be determined only by the government of Israel, and not by any other state, not even the most friendly one.”

This is an unpersuasive argument as no court will allow unbounded auto-interpretation to decide legally contested issues. Israel simply has no right under IL to take military action outside its national boundary in the name of self-defence as it chooses to define that term.

Israel’s claim that its raid constituted permissible anticipatory self-defence is self-contradictory. One engages in self-defence when attacked, and to begin the attack is to give the other side the right to self-defence. Self-defence in the absence of an armed attack by the other side is, according to Professor Henkin, “unfounded, its reasoning is fallacious, its doctrine pernicious.”

 International law permits the use of force in self-defence against an imminent attack, but does not authorise the use of force to mount a pre-emptive strike against a remote threat

 International law permits the use of force in self-defence against an imminent attack, but does not authorise the use of force to mount a pre-emptive strike against a remote threat

During the 1983 nuclear balance of terror, the time between the launching of a missile and the destruction of a major city in the former Soviet Union or the US was a mere six minutes. When the Soviet Union’s early-warning systems detected an incoming missile strike from the US, the duty officer Stanislav Petrov, whose job it was to register apparent enemy missile launches, decided not to report them to his superiors and instead dismissed them as a false alarm, saving the world from potential nuclear disaster.

This raises the question of whether the existence of this six-minute window means that either superpower may, at any time, launch all its missiles on the grounds of anticipatory self-defence, making the doctrine of anticipatory self-defence a recipe for global disaster.

Israel’s actions have no justification under IL, but its counsel may argue that, unless Iraq can show that the Israeli attack was illegal under IL, it is permissible. Indeed, it was the first pre-emptive strike against a nuclear facility in history, so no one could reasonably expect IL to contain an actual rule affirmatively permitting such an act.

However, the absence of an explicit international rule prescribing a certain action does not mean that the action is permissible. According to Lord Peter Goldsmith, former Attorney General for England and Wales and for Northern Ireland, International law permits the use of force in self-defence against an imminent attack, but does not authorise the use of force to mount a pre-emptive strike against a remote threat.

The ongoing conflict in Iran violates the UN Charter’s prohibition on aggression and does not constitute lawful self-defence against an armed attack by Iran, as it was not authorised by the UN Security Council (UNSC) under the Charter’s Chapter VII, Articles 39 and 42. Article 51 also requires states to report self-defence actions to the UNSC. The US President, Donald Trump, did not obtain authorisation from the US Congress. Lastly, preventive disarmament, counter-terrorism, and regime change constitute aggression.

Jarrod Agen, executive director of the White House’s National Energy Dominance Council, said Washington wants Iran’s oil reserves removed from terrorist control, while US Secretary of State Marco Rubio confessed that Washington was aware Israel was going to attack Iran and that Tehran would retaliate against US interests in the region, so US forces struck pre-emptively.

The Pentagon informed Congress that there was no intelligence suggesting that Iran was going to attack the US first. The head of the International Atomic Energy Agency (IAEA), Rafael Grossi, stated that there is no evidence that Iran is developing a nuclear bomb. However, the UNSC has adopted a resolution condemning Iran’s attacks on Gulf countries and Jordan, demanding that Tehran immediately halt hostilities.

The ongoing conflict in Iran is testing the international legal order to address the question of state sovereignty and self-defence, but whether it will answer these questions remains to be seen.

© The Friday Times