Legalities of warfare
The recent hostilities between the United States, Israel and Iran has triggered a debate within the international legal community about the legality of the war.
With American and Israeli forces launching strikes inside Iranian territory and Iran retaliating against Israel and targets in Gulf States hosting U.S. forces, the crisis raises questions about the rules governing the use of force in international law and the application of international humanitarian law.
At the heart of the debate is the United Nations Charter, which forms the cornerstone of the modern international legal order governing the use of force between states.
Article 2(4) of the Charter prohibits states from using force against the territorial integrity or political independence of another state.
There are only two exceptions: when force is authorised by the United Nations Security Council or when a state acts in self-defence under Article 51 of the Charter.
In the present conflict, the United States and Israel initiated military strikes on Iran without obtaining authorisation from the UN Security Council.
Several legal experts argue that the strikes may constitute a violation of the UN Charter’s prohibition on the use of force.
Washington and Tel Aviv have defended the strikes by claiming they were necessary to prevent Iran from developing military capabilities that could threaten their security.
Israel in particular has framed the operation as a “preventive” or “pre-emptive” action aimed at stopping a future Iranian attack.
Traditional legal interpretation of Article 51 allows self-defence only when an armed attack has already occurred or is imminent.
For a claim of pre-emptive self-defence to be valid under international law, the threat must be instant and overwhelming.
Critics argue that there has been little available evidence that Iran was on the verge of launching an immediate attack against either the United States or Israel.
As a result, many legal analysts believe the justification for self-defence may not meet the strict threshold required by international law.
Questioned
Some political leaders and governments have openly questioned the legality of the operation.
European officials have warned that such actions risk undermining the rules-based international order, while some governments have described the strikes as violations of international law.
If the initial use of force is legally questionable, the next issue is the legality of Iran’s response.
Iran has launched retaliatory attacks against Israel and against U.S. military installations and allied facilities in several Gulf States.
Under Article 51 of the UN Charter, a state that is the victim of an armed attack has the inherent right of self-defence.
In principle, therefore, Iran may argue that it is exercising its right of self-defence against the states that attacked it.
International law experts acknowledge that Iran may lawfully respond with proportionate force directed against the attacking states.
However, the legality of Iran’s retaliation becomes more complicated when the targets include the Gulf States.
If those states directly participated in the attacks on Iran or allowed their territory to be used as operational bases, they could be regarded as lawful military targets under the law of armed conflict.
On the other hand, if they were not active participants in the initial strike, attacking them could be seen as an unlawful expansion of the conflict.
War
Beyond the legality of initiating the conflict, international humanitarian law regulates how the war is conducted.
All parties are bound by fundamental principles such as distinction, proportionality and necessity.
These rules require belligerents to distinguish between military targets and civilians, to avoid disproportionate attacks that cause excessive civilian harm and to ensure that military operations are necessary only for achieving legitimate military objectives.
Reports of civilian casualties, destruction of infrastructure and strikes on oil facilities illustrate the humanitarian consequences of the conflict and raise concerns about compliance with these rules.
Even if a party claims lawful self-defence, it remains bound by the humanitarian principles governing warfare.
Conflict
Ultimately, the conflict highlights the fragile nature of the international legal order governing war.
The prohibition on the use of force established after the Second World War was designed to prevent exactly such interstate conflicts.
When major powers bypass the mechanisms of collective security or adopt expansive interpretations of self-defence, the credibility of that system is weakened.
Whether the strikes by the United States and Israel or the retaliation by Iran can ultimately be justified under international law will remain the subject of debate.
What is clear, however, is that the unfolding war represents a profound test of the effectiveness of international humanitarian law and the global commitment to a rules-based international order.
The writer is a lawyer.
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