Israel has the right of self-defence. That's not the end of the matter
Michael Byers holds the Canada Research Chair in Global Politics and International Law at the University of British Columbia.
Last Thursday, the International Atomic Energy Agency decried Iran's 'many failures to uphold its obligations' concerning undeclared nuclear materials and enrichment sites. The agency further reported that it was unable 'to verify that there has been no diversion of nuclear material … to nuclear weapons or other nuclear explosive devices.'
Hours later, Israeli jets were dropping bombs on a uranium enrichment plant at Natanz, Iran, and killing military leaders and nuclear scientists in Tehran.
Israeli Prime Minister Benjamin Netanyahu claimed the strikes were necessary to 'roll back the Iranian threat to Israel's very survival' and that, 'if not stopped, Iran could produce a nuclear weapon in a very short time.'
'It could be a year. It could be within a few months,' he said.
Every country has the right of self-defence, which has long been recognized as including pre-emptive action – if there is a 'necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment of deliberation.'
But that raises the question: was Iran's nuclear program an imminent threat to Israel last Thursday?
Several precedents suggest that it did not rise to this level. In 1981, Israeli jets dropped bombs on Iraq's Osirak nuclear reactor, which was under construction on the outskirts of Baghdad. The Israeli government claimed pre-emptive self-defence, on the basis that a nuclear-armed Iraq would pose an unacceptable threat.
The UN Security Council unanimously condemned the strike, with the United States, led by then-president Ronald Reagan, notably voting in favour of the resolution, rather than vetoing or abstaining on it. And in the British House of Commons, then prime minister Margaret Thatcher said that an 'armed attack in such circumstances cannot be justified. It represents a grave breach of international law.'
The problem, you see, was that the nuclear reactor was only under construction.
Analysis: For the U.S., the crisis in Iran is the latest episode in a long, tortured history
Two decades later, U.S. president George W. Bush argued that the right of pre-emptive self-defence should include an element of prevention. 'We must take the battle to the enemy, disrupt his plans, and confront the worst threats before they emerge,' he said.
The Bush administration invoked pre-emptive self-defence to justify the 2003 invasion of Iraq. 'We don't want the smoking gun to be a mushroom cloud,' then-U.S. national security adviser Condoleezza Rice said in September, 2002, arguing that uncertainty about Iraq's possession of weapons of mass destruction was no reason for holding off on military action. Then, in February, 2003, U.S. secretary of state Colin Powell insisted to the UN Security Council that Saddam Hussein had already acquired weapons of mass destruction - a claim that was, of course, completely discredited after the war.
So again, the question at the heart of the situation is this: was Iran's nuclear program an imminent threat to Israel last Thursday?
Just three months ago, on March 26, U.S. director of national intelligence Tulsi Gabbard delivered the Annual Threat Assessment of the U.S. Intelligence Community. She reported that the CIA and related agencies continued 'to assess that Iran is not building a nuclear weapon and Supreme Leader Khomeini has not authorized the nuclear weapons program that he suspended in 2003.'
Israel strikes Iranian state broadcaster as Tehran presses Trump to push for ceasefire
It is possible that Israel has better intelligence than the United States, but if that's the case, the evidence has yet to be made public. And in the absence of any evidence of an imminent threat, it is difficult to conclude that the Israeli strikes were legal.
Now here's the thing: If the Israeli strikes were illegal, Iran had every right to exercise its right of self-defence in response. (Whether the missile salvos directed at Israel comply with the criteria for self-defence, namely necessity and proportionately, is a separate question.) But instead of treating the Iranian response as potentially legitimate and ceasing its own attacks, Israel is now targeting oil and gas facilities in an apparent attempt to cripple Iran's economy.
Ultimately, it may not matter so much whether Israel's initial strikes were illegal. As former U.S. State Department legal adviser Harold Hongju Koh has said, a military action can be 'lawful but awful.'
In the absence of explicit evidence otherwise, Israel appears to have taken the Middle East beyond the right of self-defence and into a full-blown armed conflict, with all the human suffering and geopolitical instability that can result.
Whether Israel's strikes were pre-emptive or preventive, what is most important now is what happens next. An immediate ceasefire is necessary – and while it has said that it is not willing to negotiate while under attack, that is what Iran has called for.
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