The legality of Israeli actions under international law
While many nations may demur from taking a clear position on the legality of Israel's unparalleled military strikes against Iran for a multitude of reasons, an inescapable question confronting the global community is whether these strikes are legal under international law. It is axiomatic to state that Article 2(4) of the UN Charter prohibits the use of force in international relations, allowing narrow exceptions such as self-defence under Article 51, which permits a state to use force 'if an armed attack occurs', adhering to necessity and proportionality. According to international lawyer Marko Milanovic, the legality of a country's use of force hinges on the legal conception of self-defence. If self-defence is limited to repelling armed attacks, Israel's current use of force is illegal, as there was no armed attack from Iran or non-state actors whose actions were attributable to Iran. Consequently, as per this interpretation, Israel's use of force is illegal and would amount to aggression, which is a war crime under international law.
Pre-emptive self-defence
What about the contention that Israel's military actions against Israel can be justified under pre-emptive self-defence, i.e., the right of the states to use force against an 'armed attack' that is yet to occur? The argument is that Iran is close to acquiring the capability to develop nuclear weapons, and once it receives the said capability, it will destroy Israel, as its leaders have vowed. Indeed, Israel justifies its war against Iran by claiming that its actions are pre-emptive self-defence against Iran's nuclear programme.
Pre-emptive self-defence in international law is contentious because arguing for the use of force against an anticipated armed attack contradicts Article 51. On the other hand, international lawyers such as Rosalyn Higgins argue that requiring a state to wait for an armed attack to occur before it can defend itself would be impractical.
Notwithstanding the disputable nature of pre-emptive self-defence, for the sake of argument, let us assume that such a right exists. The question, then, is how to define it, keeping in mind that an overtly broad articulation of such a right would violate not only the letter but also the spirit of the UN Charter. Arguably, a country has a right to pre-emptive self-defence if an armed attack has not occurred but is imminent. A better phrase for this is anticipatory self-defence. Support for this proposition is often drawn from the famous Caroline incident of 1837. This incident involved a pre-emptive strike by British forces in Canada against the American ship, Caroline. This ship was used by Americans who empathised with the rebels fighting British rule in Canada to ferry arms to the rebels. Over the years, this incident led to the emergence of what is known as the Caroline doctrine for the use of force. As in this doctrine, a state claiming pre-emptive self-defence would have to show that the necessity of self-defence was 'instant', 'overwhelming', 'leaving no choice of means, and no moment of deliberation'. Further, the force used should be proportionate. In simpler terms, a valid use of force as part of pre-emptive (or anticipatory) self-defence would require an armed attack that is imminent.
Meaning of imminence
However, there is no consensus on the meaning of 'imminent'. As Milanovic argues, the first meaning of 'imminent' is a restrictive one that has a temporal dimension. In other words, an 'imminent' attack means one that is temporally proximate, i.e., about to happen. The second meaning is expansive, where an attack may occur at some point in the future. Allowing a state to use pre-emptive self-defence, relying on the expansive meaning of imminent, would imply giving a licence to powerful states to act unilaterally merely based on conjecture. It would be an open invitation to armed aggression, which would surely defeat the very objective of forbidding the use of force under the UN Charter. Moreover, this broad meaning would also not be consistent with the Caroline doctrine, which amply limits the use of pre-emptive self-defence through qualifiers such as 'instant', 'overwhelming', and 'leaving no room for deliberation'. In short, there is abundant support for a narrower interpretation of 'imminent'.
Applying this legal understanding to Israel's use of force, it is clear that for Israel to make a credible case for pre-emptive self-defence, it must demonstrate that an attack from Iran was imminent, meaning an attack was about to occur. The argument that Israel acted in pre-emptive self-defence because Iran is closer to acquiring nuclear weapons, which could pose an existential threat to Israel, relies on a broader interpretation of 'imminent', which is not supported by international law.
It is the primary framework
Cynics might argue that this debate is futile in a world where there is scant respect for international law. After all, international law has failed abjectly to stop wars despite the adoption of the UN Charter eight decades ago. However, international law remains the primary framework for determining the legitimacy of state conduct. It is the only means by which state power can be held accountable internationally. Thus, it is essential to invoke and marshal international law in the teeth of its gravest violations by regimes that believe they can act with impunity.
Prabhash Ranjan is Professor and Vice Dean (Research) at the Jindal Global Law School. The views expressed are personal
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