Iran, Israel and the right to self-defence

It is extraordinary that the West still buys into the idea that it was necessary and proportionate for the defence of Israel to destroy Gaza

The UN Charter which was adopted in 1945 prohibits the use of force by member states “in order to save future generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind.”

Although international law prohibits the use of force against the territory and political independence of other states, it expressly preserves their inherent right (droit naturele) of self-defence in the event of armed attack.

The right inheres in sovereign states in the sense that it is natural for states to be entitled to protect their population from external aggression just like it is natural for individuals to be entitled to defend themselves if attacked.

For obvious reasons it is necessary to say something this week about the nature of the right of self-defence because Iran and Israel both invoked this right in support of their military operations against one another.

Israel has now retaliated for Iran’s attack last Sunday that itself was in retaliation for Israel’s attack on the Iranian consulate in Damascus on April Fool’s day 2024. The attack on the Iranian consulate was a particularly egregious escalation of tension in the region as it was an armed attack on diplomatic premises in Syria that are deemed inviolate Iranian territory under international law.

The best-known time a state invoked the right to self-defence in response to an attack on diplomatic premises was in August 1998 when Osama Bin Laden’s terrorist organisation Al-Qaeda bombed two American embassies in East Africa killing 250 and the US responded by launching cruise missile attacks against Al-Qaeda in Afghanistan and Sudan.

But it is a misuse of the right of self-defence to invoke it in order justify retaliatory action for the purpose of political propaganda. Under customary international law the need for the use of force in self-defence depends on an immediate and overwhelming danger to the state, always provided the means used to meet it are necessary and proportionate to the gravity of the threat or danger.

Although the passing-off of the right of self-defence as if it were the right to retaliate is illegitimate, there is an overlap in fact even if in law the two are distinct – retaliation or the threat of retaliation is usually motivated by a mixture of revenge and deterrence, which is illegal unless done in lawful self-defence.

The two most controversial aspects of self-defence are anticipatory self-defence where an attack is imminent and preventive self-defence where an attack is not imminent but military action is taken to forestall future attacks. Anticipatory self-defence can be lawful under customary international law if an armed attack is imminent. Preventive self-defence, however, is unlawful.

The buzz words of the current crisis are interesting for their relationship to self-defence jargon of immediacy, necessity and proportionality. Take the win, President Biden told the Israelis after they successfully defended their country against Iran’s multiple drone and missile attack last Sunday. There is also a rumour – a conspiracy theory even – that members of the Biden administration used back-channels to communicate with Iran to calibrate its attack on Israel to ensure it would be repulsed. Israel for its part also seemingly calibrated its response so as not to provoke a further retaliation from Iran. Are Iran and Israel engaged in a kind of phoney war? Time will tell.

Fingers crossed, however, both countries acted to de-escalate and protected their populations from harm which is the whole point  of self-defence. The right wing nationalist Israeli Security Minister Itamar Ben-Gvir branded Israel’s response on Friday as pathetic, but he subscribes to the madman theory of international relations in the Middle East and likes to indulge in bravado and braggadocio.

What concerns those of us who hate war and injustice is that while Iran and Israel have been playing war games on their computer screens, the killing of Palestinians in Gaza continues unabated and the West, led by the US, betrayed the Palestinian people yet again by vetoing a resolution by the UN Security Council for the General Assembly to admit Palestine as a member state.

It is extraordinary that the West still buys into the idea that it was necessary and proportionate for the defence of Israel to destroy Gaza and its Palestinian population. Equally extraordinary is the lip-service paid by the West to a two-state solution while doing absolutely nothing to help bring it about.

The American ambassador to the UN raised his hand to veto the proposed UN Security Council resolution, arguing that the US objection was that the requirements for membership in article IV of the Charter were not met. As he did not give particulars, the world had to wait for the didactic US foreign minister Anthony Blinken to explain that although the US is committed to a Palestinian stare it had to be done by diplomacy rather than imposition. It is difficult to disagree with the Russian ambassador at the UN who said that “for Washington the Palestinians do not deserve to have their own state. They are only a barrier towards realising the interests of Israel. “

Alper Ali Riza is a king’s counsel in the UK and a retired part time judge