Context:
- In light of Israel's unprecedented military strikes against Iran, the international community faces a critical legal question—whether such acts are permissible under international law.
- This needs to be evaluated particularly in the context of Article 2(4) and Article 51 of the UN Charter, and evolving doctrines of self-defence.
Legal Framework Governing Use of Force:
- Prohibition under the UN Charter:
- Article 2(4): Prohibits the use of force in international relations.
- Article 51: Provides a narrow exception—self-defence in the event of an armed attack, governed by necessity and proportionality.
- Defining self-defence:
- As per international law scholar Marko Milanovic, the right to self-defence activates only when an actual armed attack occurs.
- Since there was no direct armed attack from Iran or its proxies attributable to Iran, Israel’s current use of force lacks legal justification.
Pre-emptive and Anticipatory Self-Defence:
- Israel’s claim of pre-emptive self-defence:
- Israel argues that Iran’s advancement toward acquiring nuclear weapons warrants pre-emptive action to prevent existential threats.
- This form of self-defence remains controversial and unsupported by Article 51, which requires an ongoing or imminent attack.
- The Caroline Doctrine and conditions for pre-emptive action: Originates from the Caroline incident (1837), it sets stringent criteria:
- Necessity must be instant, overwhelming, leaving no choice of means, and no moment for deliberation.
- The response must be proportionate.
Interpreting 'Imminent' in International Law:
- Two competing interpretations:
- Restrictive/ narrow: Imminence implies an attack is about to occur—temporally proximate.
- Expansive/ broad: Imminence can include hypothetical or distant future threats.
- Legal preference for the narrow view:
- Broad interpretation risks abuse by powerful states acting on conjecture (guess), contradicting the spirit and letter of the UN Charter.
- The Caroline doctrine supports a narrow interpretation, emphasizing urgency and lack of alternatives.
Application to Israel’s Strikes:
- Israel’s justification, based on Iran’s nuclear progress, falls under a broad and unsupported interpretation of imminence.
- No evidence shows an immediate Iranian attack, hence the conditions for lawful anticipatory self-defence are unmet.
Importance of International Legal Norms:
- Upholding accountability:
- Despite its limitations, international law remains the only global framework for assessing the legitimacy of state actions.
- Disregarding legal norms undermines global order and emboldens unilateral aggression.
- Need for legal advocacy: Even amid violations, invoking international law is vital to hold states accountable, preserve legitimacy, and prevent impunity.
Conclusion:
- Israel’s military strikes on Iran, lacking evidence of an imminent armed attack, do not meet the stringent criteria of lawful self-defence under international law and thus risk being classified as acts of aggression.
- Upholding the UN Charter and established legal doctrines remains essential to preventing the erosion of global norms and deterring unilateral uses of force.
