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Home EJIL Analysis UK Government Rejects Pre-emptive Self Defence With Respect to Iran

UK Government Rejects Pre-emptive Self Defence With Respect to Iran

Published on October 26, 2012        Author: 

The Guardian reports that the United Kingdom has denied a United States request to use UK military bases in Cyprus as well as in the Atlantic and Indian Oceans for a buildup of military forces in the Gulf. Apparently, the US requests have been made as part of ‘routine’ contingency planning for potential military action against Iran. In rejecting the US requests, British Ministers are reported to have acted on legal advice from the UK Attorney General to the effect that preemptive military action would be unlawful under international law.

According to The Guardian:

‘[British Ministers and Downing Street]have pointed US officials to legal advice drafted by the attorney general’s office and which has been circulated to Downing Street, the Foreign Office and the Ministry of Defence.

It states that providing assistance to forces that could be involved in a pre-emptive strike would be a clear breach of international law on the basis that Iran, which has consistently denied it has plans to develop a nuclear weapon, does not currently represent “a clear and present threat”.

“The UK would be in breach of international law if it facilitated what amounted to a pre-emptive strike on Iran,” said a senior Whitehall source. “It is explicit. The government has been using this to push back against the Americans.”

Sources said the US had yet to make a formal request, and that they did not believe an acceleration towards conflict was imminent or more likely. The discussions so far had been to scope out the British position, they said.’

A rejection by the UK government of a right to act preemptively is consistent with positions previously taken by the UK government. In the lead up to the Iraq war in 2003, the then UK Attorney General, Lord Goldsmith consistently advised that international law only permits force in self defence where there is an actual or imminent attack. In advice to the Prime Minister on 30 July 2002, he made it clear at the time that “The development of WMD is not in itself sufficient to indicate such imminence.” What he looked for was evidence of imminent use of WMD by Iraq. See also the AG’s advice to the Defence Secretary on 28 March 2002.  In 2004, Lord Goldsmith, stated in Parliament that:

‘It is therefore the Government’s view that 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 threat that is more remote. However, those rules must be applied in the context of the particular facts of each case. That is important.

The concept of what constitutes an “imminent” armed attack will develop to meet new circumstances and new threats.’

So it should not come as a surprise that the UK has continued to reject the view that there is a legal right to use force where there is no imminent attack in view. In my view, this remains the correct position under international law, though I also accept that the concept of imminence is not necessarily limited to attacks one knows will occur in the immediate future. It may be that where a State or group is known to have an intention to attack, has the capability to do so and is taking active steps in preparation for an attack, this is sufficiently imminent.

The UK is also right to consider that if it were to provide bases for an unlawful attack, the UK would bear responsibility under international law. Article 16 of the International Law Commission’s Articles on State Responsibility (2001) provides that:

‘A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if:

(a) that State does so with knowledge of the circumstances of the internationally wrongful act; and

(b) the act would be internationally wrongful if committed by that State.’

Indeed the ILC’s commentary on that provisions notes that:

‘The obligation not to use force may also be breached by an assisting State through permitting the use of its territory by another State to carry out an armed attack against a third State.’

In short providing assistance for an unlawful attack would itself be a breach of the prohibition of the use of force, and probably also an act of aggression that could lead to individual criminal responsibility under the amended provisions of the Statute of the International Criminal Court, if this is in force and applicable to the UK at the relevant time.

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3 Responses

  1. Quite correct re: “pre-emptive” versus “anticipatory” self-defense, and I would still follow the strictures of the language in Article 51 of the Charter by requiring that at least a process of “armed attack” commence. http://ssrn.com/abstract=1798582 Israel has not claimed responsibility, but if Israel targeted the weapons factory in the Sudan last week, neither self-defense in case of an armed attack nor anticipatory self-defense would justify such a targeting, given Nicaragua v. United States — that the mere supply of weaponry to a non-state actor like Hamas by Sudan (assuming that Sudan has done such instead of a mere private weapons manufacturer) would not result in attribution of non-state actor armed attacks to Sudan or imputation so that Israel could engage in responsive self-defense against Sudan unless Sudan was in “control” of the non-state actor armed attackers.
    If Israel (or the United States) took out Iranian nuclear capability because of Iran’s conduct in supplying weaponry to non-state actors who have engaged in processes of armed attacks against Israel (or the United States or its embassies, military, or other nationals abroad), it would appear the Israel (or the U.S.) is (or are) in no better position.

  2. And Dapo: what you suggest “may” be appropriate could be close to a broader view of when a process of armed attack has actually started (e.g., one does not need to wait until the bullet is fired if there is intention, capability, active preparation and, for example, the gun is aimed). I am a strict constructionist in terms of the need for an “armed attack” (the exact phrase in Article 51 afterall), but process-oriented and more open than some with respect to when a process of armed attack has actually begun.
    Choice points.

  3. ==It may be that where a State or group is known to have an intention to attack, has the capability to do so and is taking active steps in preparation for an attack, this is sufficiently imminent.==

    This means that if there is a US-UK buildup of military force, Iran it is legal for Iran to attack the US-UK?