Introduction
Israel’s pre-emptive strikes, also referred to as Operation Rising Lion, against Iran have once again underscored the fragility of the United Nations (UN) and International Law in terms of ensuring a rules-based world order characterised by peace, prosperity and stability. The reason for carrying out the strikes, as alleged by Israel, is the anticipation of the threat of nuclear attack on its land by Iran, amidst constant efforts by Iran to enrich uranium. Israel alleges that Iran is enriching uranium to the extent of weapons-grade material capable of developing nuclear warheads. This allegation is denied by Iran, who instead asserts that the enrichment of uranium is to support the growing domestic energy needs and that there is no intention of possessing nuclear weapons. These attacks came after a resolution was passed by the board of International Atomic Energy Agency (‘IAEA’), declaring Iran to be non-compliant with its non-proliferation obligations. These unilateral strikes by Israel could stalemate the negotiations mediated by Oman to reach a nuclear deal between Iran and the United States of America (‘U.S.’). The blistering exchange of fires by both sides has fuelled geopolitical uncertainty, caused civilian casualties, and potential disruption of global oil prices.
In this backdrop, it is essential to discern whether such unprovoked unilateral pre-emptive military attacks are lawful under International Law, and if it is lawful, whether there are any standards/criterion to be observed. The aim of this article is to scrutinize the lawfulness of Israel’s Operation Rising Lion in light of the existing status of International Law and suggest a few measures.
Self-Defence under International Law
The establishment of the UN was premised on the promise to ensure global order, peace and security and to prevent succeeding generations from the scourge of war. To achieve this goal, the U.N. Charter provides for Article 2(4) which asserts that States must desist from the use of force or threat to use force against the territorial and political independence of any state. However, one of the key exceptions to Article 2(4) is Article 51 of the Charter. Article 51 recognizes the ‘intrinsic freedom’ of states to use force for self-defence in case of an armed attack until the United Nations Security Council (‘UNSC’) intervenes and takes cognizance of the situation and begins efforts to resolve the issue. Self-defence is not an unfettered exercise of power but must be exercised with restraint i.e., driven by necessity and proportionality (this will be addressed in greater detail when analysing pre-emptive strikes).
Existence of an Armed Attack
The International Court of Justice (‘ICJ’) in the case of Nicaragua v. United States asserted that existence of an armed attack is sine qua non for the purpose of exercising self-defence. Some scholars share the view of the ICJ and argue that the unambiguous wording of Article 51 leaves little room for interpretation in favour of an anticipatory self-defence.
A plain reading of Article 51 underlines the existence of an armed attack, however there is no clarity with regards to the definitive meaning of armed attack. The ICJ in Nicaragua referred to the scale-and-effects doctrine to determine the occurrence of an armed attack. The ICJ points out that only a grave form of aggression would amount to an armed attack. Minor border skirmishes, provision of arms or logistical support, do not meet the threshold unless they reach the required level of gravity. Scholars argue that armed attack can be discerned from the actual or imminently manifest deployment of force that results, or is expected to result, in significant consequences such as substantial loss of life, injury, or destruction of property. In the absence of a conclusive definition with regards to the definition of armed attack, however, it is reasonable to assume that self-defence cannot be resorted to unless there is a use of force of sufficient gravity against the victim state.
Pre-emptive Self-Defence
Pre-emptive self-defence is the anticipatory use of force by a state to repel an armed attack that is imminent but has not yet materialized. Before the adoption of the UN Charter, customary international law generally recognized pre-emptive force as a valid form of self-defence with the Caroline case serving as the classical example. In the Caroline case, British forces destroyed the American ship Caroline, which was allegedly aiding Canadian rebels. The U.S. protested, leading to an exchange where it was agreed that self-defence is only lawful when the necessity is imminent, overwhelming, leaving no choice of means, and no moment for deliberation. From this, two key principles of necessity and proportionality emerged, forming the legal foundation for anticipatory self-defence under Customary International Law. Despite the restrictive language of Article 51, there is a general consensus that CIL embraces pre-emptive or anticipatory self-defence, provided that it is in response to an imminent threat. Furthermore, in 2005, the UN Secretary-General affirmed that imminent threats fall fully within the scope of Article 51, thereby upholding the inherent right of states to defend themselves against armed attacks.
Preventive Self-Defence or Infamous Bush Doctrine
Preventive Self-Defence can be described as a military defence taken to avert an anticipated threat of an attack which is set to transpire in an unspecified future. Unlike pre-emptive strike/self-defence, preventive strikes are based on conjectures and surmises regarding the possibility of an assault. This concept attained a legal sanction by the U.S. in the aftermath of the 9/11 terror attacks in its National Security Strategy of 2002, wherein it was asserted by the Bush Administration that “the greater the threat, the greater is the risk of inaction—and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack.” This allowed the US to invade Iraq in 2003 apprehending that Saddam Hussien was in possession of Weapons of Mass Destruction (‘WMD’), however miserably failed to find any traces of WMD. This unjustifiable invasion that caused severe consequences for the global order and was particularly condemned by the international community.
It has been argued by few scholars that the nature of WMD and terrorism poses new levels of dangers which the current paradigm of international law is ill-suited to address and thus it is profitable to annihilate the known nuclear facilities or terrorist infrastructure that are considered as a threat to a nation’s sovereignty. While this lacuna to address the threat posed by WMD and terrorism persists in international law, without clear standards, such preventive self-defence where there is no consideration regarding the necessity, proportionality and imminence of the danger purported to be anticipated gives states carte-blanche to use force that cannot by any standard of international law be regarded as legitimate. This criteria of self-defence which allows usage of force even in cases of non-imminence of the potential threat can be used as a proxy to wage a unilateral military attack against the other state and coerce it to submit to its demands.
Exploring the Legality of Israel’s Operation Rising Lion
The ambiguity surrounding the doctrine of pre-emptive or anticipatory self-defence should not be viewed as a legal constraint, especially in light of contemporary geopolitical realities. Modern warfare has shifted from the conventional deployment of capital assets like tanks, aircraft, and submarines to the use of advanced weaponry such as missiles and unmanned aerial vehicles (drones), capable of inflicting catastrophic damage within moments. In this context, expecting a state to wait for an actual attack before responding is both impractical and dangerous, as the first strike may render any retaliation ineffective. While international law on the use of force remains unsettled, there is growing global receptivity towards the concept of pre-emptive self-defence provided it strictly adheres to the principles of necessity and proportionality, as articulated in the Caroline case, and the threat is demonstrably imminent, leaving no moment for deliberation.
Operation Rising Lion against Iran by Israel targeting nuclear facilities such as Natanz mirrors Israel’s strikes against Iraq carried out in 1981. Israel’s Operation Opera involved an airstrike by Israeli fighter jets that targeted and demolished Iraq’s Osirak nuclear reactor. Israel asserted that the reactor was intended to produce weapons-grade nuclear material for the development of nuclear weapons that could potentially be used against it. Israel’s actions were condemned by the UNSC, observing that Israel’s use of force lacked immediate necessity, violated Iraq’s sovereignty, and had no justification under international law or the UN Charter.
Judging from a purely legal perspective, Operations Rising Lion would meet the same fate as Operation Opera. Irrespective of the legal position regarding self-defence in terms of strict requirement of an armed attack as observed by the ICJ or lawfulness of pre-emptive strikes, would elicit only one picture i.e., Operation Rising Lion is illegal and violative of UN Charter and International Law. As Israel’s strikes are unprovoked unilateral military offensives. Whatever may be the interpretation of armed attack, it is verifiably objective that there was no demonstrable existence of the use of force or initiation of an armed attack by Iran against Israel. Furthermore, the current strikes do not meet criteria of necessity. Given that negotiations between Iran and the U.S. were taking place to arrive at a nuclear deal, mediated by Oman, it is unreasonable to justify strikes as the only last option available with Israel to avert the threat of a potential nuclear attack.
Conclusion
Israel’s strike against Iran is an opportunity for the global community to address the lacuna pertaining to the right of nations to exercise self-defence against anticipated threat of a potential usage of WMD. The UN must adapt itself to dynamics of warfare and provide certainty regarding the measures that states can employ lawfully to defend its sovereignty and political independence. There cannot be an omnibus censuring of pre-emptive strikes against the threat of WMD. However, to ensure stability and prevent possibility of a small dispute morphing into a full-fledged war, it is essential that the state must provide all the evidence and rationale in relation to the threat that it apprehends to be impending to the UNSC before undertaking pre-emptive strikes. As K. Gray notes, a pre-emptive war is justified only when an enemy attack is already underway or is unquestionably imminent. The UNSC must then take appropriate measures to address the concerns of the state, and a possible peaceful resolution of the dispute. The role of IAEA could be enhanced to report periodically to the UN regarding each state’s engagement with atomic energy and associated items. It is pertinent to note that it is the responsibility of the UN to ensure that international law is used to promote peace, prosperity and stability and not a political tool to make incursions into the affairs of other states.
Devang Kala is a 4th-year student at West Bengal National University of Juridical Sciences.
Picture Credit: Unsplash/Anita Filabi