Introduction

US-Israel attack on Iran has been justified by the US-Israel as an exercise of the right of collective self-defence in international law, with respect to the threat faced by Israel from Iran’s nuclear and missile capabilities. The US representatives have not stated it exactly like this, but if the matter goes to a legal forum, I believe this is how the US-Israel attack on Iran would be advised to be articulated. Here-in-below, I am analysing the above claim of the right of self-defence in international law, ignoring other possible defences that US-Israel may take up like defending the right to life of the citizens of Iran from their “tyrannical” rulers.

Right of Self-Defence under United Nations Charter

There is a misconception that United Nations (UN) charter grants a positive right of self-defence in international law under Article 51 of the charter. Article 51 appears under chapter VII of the charter dealing with “Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression”. The United Nations Security Council (UNSC) has been mandated with the above stated responsibility under the charter. Article 39 provides for the UNSC’s jurisdiction to determine such conditions as stated above and to make recommendations or to take measures under Article 41 and 42 for maintaining or restoring international peace.

Article 51 also appears in the same chapter VII creating an exception of inherent right of self-defence restricted in its application to only those cases where an armed attack has occured. However, Article 51 doesn’t create any right of self-defence. It only recognizes the inherent right of self-defence and makes its application restricted against the UNSC’s authority under the UN charter.

The above means that even when the UNSC has already determined that there exists a threat to international peace with or without the determination of the act of agression by anybody and it is already taking or can take corrective measures to maintain or restore international peace, a country or group of countries can still take actions in their self-defence without prejudice to the UNSC’s authority but only in those cases when the armed attack has occured.

However, if the UNSC has not even made any determination under Article 39, there is no occasion for restriction of the inherent right of self-defence in international law, and a country can exercise its right of self-defence in all cases including in the cases of threat without any actual attack.

Inherent Right of Self-Defence in International Law

The inherent right of self-defence in international law is a corollary to the right to life of a nation. However, the right to life is better understood with respect to persons. The right to life of a person can have both strict and broad intrepretation. The strict intrepretation puts a restriction from depriving existence of a person through a direct action like by murdering him. The broader interpretation puts restrictions from creating situation that can lead to gradual extinction like by deprivation of food. The still broader intrepretation puts restriction even on taking such actions which are against good life like denying social associations.

There is no doubt that the inherent right of self-defence co-exists with the strictly intrepreted right to life, including in the cases of threats. The realistic threat perception is more important than its imminence. A snake immediately reaches its survival state on any threat perception irrespective of remoteness, but a snake bite can only be called self-defence, not an attack. A person is also more likely to take a pre-emptive action against a bear than a street dog. Thus the source of threat is also relevant.

In the cases of broader interpretation of the right to life, the categorisation of right of self-defense as a corollary of the right to life, is tricky. The broadest interpretation could mean that the uprising of a rebellion against a tyrannical or a corrupt rule is an exercise of right of self-defence. A Nepal like Gen Z uprising can be termed as collective self-defence of persons, and any intervention by an external force including nations to support the same could be justified thereof. However, as stated above, I am not discussing any other possible reason for US-Israel attack on Iran except the stated reason of the right of collective self-defence in international law.

In a less broader interpretation, depriving a nation of its lifeline could be considered as an attack on its existence, calling for exercise of the right of self-defence in international law. For example, Pakistan’s assertion that India’s apprehended blocking of Pakistan’s water flowing through the Indus River System would be an act of war, can also be articulated as giving right of self-defence in international law to Pakistan. Whether such an alternative assertion of right of self-defence in international law would find traction leading to recognition of such a right of self-defence under international customary law is, however, doubtful.

The international customary law, as intrepreted by the International Court of Justice (ICJ) in Nicargua v. United States of America, is rather strict. The ICJ ruled that the international customary law with respect to the right of self-defence in international law has been recognised as existent in the occurence of the phrase “inherent right” in Article 51 of the UN charter and expressed its opinion in the cases of self-defence under armed attack only. The discussion in the judgment, however, indicates that the inherent right of self-defence under the international customary law is deemed to be available as a proper corollary of the strict interpretation of the right to life only.

Analysis of the US-Israel Attack on Iran as a Right of Self-Defence

There can be no doubt that the US had no threat perception with respect to Iran. However, since I have modified the reason for the US-Israel attack on Iran as collective self-defence, it’s only necessary to analyse Israel’s claim of self-defence with respect to Iran.

Israel’s threat perception is artificial. The biggest reason for that is Israel’s possession of nuclear weapons. Nuclear weapons are an ultimate deterrence against any kind of traditional warfare or even nuclear warfare. The threat perception of Israel has also to be seen contextually. There is enough public information that Iran, in its recent negotiations with the US, agreed to zero stockpiling of enriched uranium, elimination of existing stockpiles, irreversibility, and verification by International Atomic Energy Association (IAEA).

The above practically removed all threats of nuclear weapon possession by Iran. If Israel continued to harbour threat perception, it is paranoi, not reasonable threat perception for identification of the right of self-defence. Furthermore, the threat perception was unreasonably remote, for Iran doesn’t possess any nuclear weapons presently. This is not the first instance of such an exercise of right of self-defense by Israel. It also attacked Iraqi nuclear reactor, Osirak, in 1981, claiming self-defense even though Iraq had not developed any nuclear weapon.

The attack was unanimously condemned by the UNSC with a 15-0 vote vide Resolution 487. The UNSC also called upon Israel to urgently place all its nuclear facilities under IAEA safeguards, which Israel has not done till date obviously because it has nuclear weapons. Resolution 487 was a political as well as a legal judgment of the international community. Israel is precluded from re-agitating such unreasonably remote self-defence claims, irrespective of one permanent member of the UNSC, i.e. the US, on its side now.

The threat perception from the missile capabilities of Iran is also non-existent because Israel, with the US support, is a monster standing in front of a minnow. Iran can hardly cause any harm threatening Israel’s existence. Moreover, there was neither any assault on nor any use of force against Israel by Iran in the recent past. A person displaying his licenced gun doesn’t become a threat to every member of the public. Only the one on whom the person points the gun is assaulted thus creating threat perception against him. There was no such pointing of gun on Israel by Iran, even in the recent past leave aside the immediate past.

Even if we were to derive Israel’s right of self-defence in international law from the broadly interpreted right to life, there was no occasion for exercise of right of self-defence in international law. Iran has no diplomatic relation with Israel. It is one of the most sanctioned country in the world, but imposes no sanction on Israel for it just doesn’t recognises Israel. If at all, Iran itself could have exercised its right of self-defense against Israel, deeming it as an agent of the US, for the sanctions that have been imposed on Iran by the US.

Undoubtedly, there is no justification for the US-Israel attack on Iran by invoking the right of collective self-defense in international law. I have not discussed other justification possibilities here, but this attack is so disproportianate and so outrageous that no devil’s advocate can justify it in any legal forum using whatever legal arguments.

Also checkout Thailand Cambodia Conflict: Focus on Legal Aspects and More