The American-Israeli Strikes on Iran are (Again) Manifestly Illegal

After weeks of threats, the United States, joined by Israel, has launched military strikes against Iran. It remains to be seen whether these strikes will be fairly limited, or are the opening of an extended conflict. Whatever happens, though, one thing is clear – that this use of force by the US and Israel is manifestly illegal. It is as plain a violation of the prohibition on the use of force in Article 2(4) of the UN Charter as one could possibly have.

The analysis here is not really much different than with regard to the strikes these two states have conducted against Iranian nuclear facilities in June last year. I will not rehearse these arguments here; for more, see here and here. The main point here is that neither Israel nor the US can reasonably claim to be exercising their right to self-defence against Iran, pursuant to Article 51 of the Charter, either individually or collectively. Iran did not attack the US or Israel, at least not recently. Whatever threat that any earlier attack may have posed has long dissipated. There was no ongoing armed attack by Iran that could justify resort to force in self-defence. It is therefore only the prevention of some future attack by Iran on the two states, nuclear or otherwise, that could possibly be relevant here, under some theory of anticipatory self-defence in response to an imminent attack. But even on the broadest plausible such theory, a use of force against Iran would be lawful only if (1) Iran had the intent (i.e. its leadership decided) to attack the US/Israel; (2) it had the capability to do so; (3) and it was necessary to use force today, because today would be the last window of opportunity to prevent this future attack.

None of these conditions are met here, just like they weren’t met last summer. If anything, the anticipatory self-defence argument is even weaker today, because the strikes last summer substantially degraded Iran’s capability to build a nuclear weapon – President Trump had even stated that Iran’s nuclear program was ‘obliterated.’ No evidence was presented to show that since last summer somehow Iran reconstituted its programme, had the intent to build a weapon, put it on a ballistic missile, and then use it against the US or Israel. On the contrary, various statements by US officials in that general direction that have been made in recent days are either false or unproven. And attacking Iran while negotiations were ongoing is hardly a defensive act that was strictly necessary.

In short, there simply was no imminent armed attack by Iran against these two states, nuclear or otherwise. This is again on the broadest possible approach to self-defence against an imminent attack, which is not necessarily the correct approach. Under a narrower view that an imminent armed attack is one that is about to occur, there plainly was no such attack. And of course there are the positions of those states and scholars that deny any possibility to respond in self-defence against an attack that is yet to occur. It’s only if one says that it’s lawful to preventively use force against any perceived future threats that some kind of argument could be made, but this is not self-defence – it is the complete evisceration of the jus ad bellum.

So we are where we are. It simply cannot reasonably be argued that these strikes are lawful under the Charter. The theory that somehow this is the continuation of a pre-existing armed conflict is equally implausible, for the reasons I’ve given previously. Maybe, maybe, something good will come out of this – I will certainly shed no tears for Iran’s dictator and his murderous regime – although I very much doubt it. It is far more likely that many innocent people are about to die, in Iran and possibly in Israel, and that their deaths will be for nothing. Legally, though, this is irrelevant as a matter of the jus ad bellum. The violation of the Charter here is simply as plain as it could possibly be.