Opinion Israel’s attack on Iran has little backing in international law

Article 2(4) of the UN Charter states, “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state or in any other manner inconsistent with the Purposes of the United Nations.” Israel’s attacks indeed violated the territorial integrity and political independence of Iran. They were likewise inconsistent with the Purposes of the United Nations. Article 1 of the Charter outlines four purposes of the UN: Maintain international peace and security, develop friendly relations among nations, achieve international co-operation, and harmonise the actions of nations in the attainment of these common ends. Yet, Israel justified the operation as “a preemptive, precise, combined offensive to strike Iran’s nuclear programme”.

Article 51 states: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.” Israel used both “individual and collective self-defence” arguments to justify its attacks. At the collective level, Israeli Prime Minister Benjamin Netanyahu said, “[W]e are defending the free world from terrorism and barbarism that Iran fosters and exports across the globe.” With respect to Israel’s self-defence, he pointed out that the attack was aimed at “rolling back the Iranian threat to Israel’s very survival.” Given empirical realities, the very basis of the “self-defence” argument must be scrutinised.

There are three aspects to the invocation of “self-defence”. One, states have the right to self-defence if an attack has already occurred or is occurring. Two, even in the absence of any attack, a state can use force to prevent any existential threat. Three, a state has the right to attack to thwart any future threat that is imminent.

On the first aspect, Iran did not initiate an attack that could justify Israel’s response as self-defence. To be fair, Israel did not even claim so. But it invoked the second and third aspects: “Existential threats” and “threat imminency”. Regarding the actuality of “existential threats”, the Israeli Defense Minister asserted: “Iran is more exposed than ever to strikes on its nuclear facilities. We have the opportunity to achieve our most important goal — to thwart and eliminate the existential threat.” On the “imminency of threat”, Prime Minister Netanyahu postulated: “We can’t leave these threats for the next generation. If we don’t act now, there will not be another generation. If we don’t act now, we simply won’t be here.” Iranian leader Ayatollah Ali Khamenei’s recent outburst that “… the Zionist regime, which is the lethal cancerous tumor of the region…. has to be uprooted, and it will be uprooted for certain” was interpreted as an apocalyptic call.

Legally, both the “existential” and “imminent” nature of the threats fall short of justification. Nuclear weapons do pose existential threats, but Iran is yet to have one. Iran is a signatory to the Treaty on the Non-Proliferation of Nuclear Weapons and has opened its nuclear facilities for inspection by the International Atomic Energy Agency. Of course, Iran has not been fully transparent in this regard, which remains a concern. For instance, the IAEA in its resolution on June 12 pointed out Iran’s “non-compliance with its obligations since 2019”, leading to the former’s inability “to verify that there has been no diversion of nuclear material required to be safeguarded.” The IAEA also pointed out a “rapid accumulation of highly enriched uranium by Iran, the only State without nuclear weapons that is producing such material.”

Iran should not have given space for such irresponsible situations, and its leaders could be more careful in their public pronouncements. However, Tehran’s tactical withdrawal from nuclear inspections and the statements by its rabble-rouser leaders are nothing new and do not necessitate the use of such a magnitude of force employed by Israel. Talks, anyway, were underway between Iran and the United States.

We might even go to the extent that Israel’s attack also constituted a violation of international humanitarian law for two reasons. One, the attacks did not separate civilians from combatants. And two, a possible fallout of nuclear contamination due to an attack on nuclear facilities. According to the IAEA itself, “…any military action that jeopardises the safety and security of nuclear facilities risks grave consequences for the people of Iran, the region, and beyond.”

But the fact of the matter is that Israel found this juncture a particularly opportune moment to attack Iran. Iran’s non-state allies like Hezbollah and Hamas are at their weakest, and Syria’s Assad has long been marginalised. At their best, the Houthis of Yemen pose a nuisance to Israel. The US under Trump registered no objection to the attack. Thus, opportunities are seized regardless of legality. The law is as strong as its implementation.

The author is Director, Centre for East Asian Studies, Christ University, Bengaluru