It’s a story we have witnessed before; just the characters are changing. Once, it was the USA protecting the world from weapons of mass destruction in Iraq. Then it was Russia invading Crimea to save Russian speakers and later marching into Ukraine to save itself from NATO.
On one side, we had India crying self-defence, flying over Pakistani soil. On the other, we see Turkish attacks over Syria as self-defence against Kurdish groups.
Now it’s Israel’s turn to repeat the tale and raise the cry of “self-defence” — this time to justify its use of force in order to shatter Iran’s nuclear dream.
The doctrine of self-defence in international law isn’t something vaguely defined that is being exploited by states across the globe to justify their illegally achieved military objectives.
Rather, it is a well-defined doctrine, anchored in Article 51 of the UN Charter, which limits a state to exercising self-defence only when an armed attack occurs against it.
In the ongoing Iran-Israel conflict, a crucial question is being raised: if Iran did not attack Israel, then how is Israel claiming self-defence? Well, the self-defence invoked by Israel in this case is pre-emptive, a concept in international law that has long been the subject of debate and controversy.
The Caroline Test serves as a benchmark, outlining the criteria to judge the actions taken in the veil of self-defence as:
“A necessity of self-defence, instant, overwhelming, leaving no choice of means and no moment for deliberation”
It doesn’t require one to be a judge of the International Court of Justice to analyse the standard set in the Caroline Test. The criteria are clear, and their application to the current conflict raises some serious legal questions.
The Caroline Test requires that, in order to justify pre-emptive self-defence, there must be an instant, imminent, and overwhelming threat from one state against another. The threat must be such that if it is not extinguished, it would cause unavoidable damage. Therefore, a pre-emptive attack in self-defence becomes the only available option.
In the current case, however, there was no concrete indication of such an instant or overwhelming attack by Iran on Israel against which such action could be taken.
However, even if it was necessary for the Israeli side to attack Iran, that alone is not enough to invoke self-defence. There must be an imminent threat from the opposing side — such a threat that requires immediate action, leaving no choice of means and no moment for deliberation.
In addition to imminence, international law also demands that the pre-emptive strike be the only available remedy and a measure of last resort. Furthermore, it was held by the ICJ in the Oil Platforms Case (2003) that the invoking state must prove that the use of force was not only necessary but also that no other means of redress were available.
A mere evaluation of the Iran-Israel conflict makes it evident that these requisites were not fulfilled — as not only was there an absence of an imminent threat from nuclear weapons that have not even been built by Iran yet, but also that there were more options available for Israel rather than invoking self-defence.
The presence of non-violent alternatives makes Israel’s strikes invalid in the eyes of the law, as Iran is a member of the Non-Proliferation Treaty (1968), which obliges it not to develop any nuclear weapons.
Israel had the option to take legal action against Iran and compel it to follow its legal obligations. But instead, Israel chose the violent option of launching missiles over Iranian nuclear sites.
In addition to being invalid in the eyes of the law, Israel’s strikes also fail to fulfil the criterion of proportionality, as the reasoning given by Israeli officials behind the attack is Iran’s nuclear ambitions.
The attack launched was not only limited to the nuclear sites but also extended to the killing of Iranian high command officers, including IRGC generals and prominent nuclear scientists.
The Israeli side, to justify their pre-emptive self-defence, relied on Iran’s nuclear ambitions — declaring them to be a threat to Israel’s right to exist. In the words of the Israeli Prime Minister:
“If we don’t attack, then it’s 100 per cent that we will die.”
Israel has long been haunted by the prospect of an Iranian nuclear bomb, which now seems like a possibility in the near future, as Iran reportedly has acquired more than 400 kg of 60% enriched uranium.
As per IAEA reports released earlier this month, Iran has the capability to produce enough 90% enriched uranium for a nuclear warhead in as little as two or three days. Moreover, a total of nine nuclear warheads could be developed by Iran within three weeks.
This concerns Israel highly, because if Iran successfully accomplishes its nuclear ambitions, it will not only alter the power balance in the Middle East but also solidify Iran’s position in the region. Whether this will lead to a future with less American involvement in the region or more dependence of Gulf states on the USA against Iran is yet to be seen.
Even though sounding logical, this stance of Israel behind invoking the pre-emptive self-defence doctrine fails the test of law. It fails to fill the legal gaps that are there.
Israel’s narrative is not unprecedented, as examples are available even within Israel’s own history — as in 1981 when Israel attacked Iraq to prevent Iraq from obtaining nuclear power.
The 1981 attack was also condemned internationally and was widely deemed illegal. The UN Security Council (UNSC) passed a resolution condemning the unprovoked attack unanimously.
By taking such unilateral illegal action, the state of Israel has violated a plethora of international laws — including the UN Charter, Customary International Law, International Humanitarian Law, including the Geneva Conventions, and the Rome Statute of the ICC.
In an ideal world, some of the actions under international law that might have been taken against Israel would include resolutions of condemnation and demands of immediate restraint by the UNSC, ICC investigations, diplomatic sanctions, and legal proceedings at the ICJ. In reality, however, Israel seems to be untouchable due to America’s support.
Israel’s invocation of self-defence fails to fulfil the legal test, as it not only fails the standard set by the Caroline Test but also violates the principles of necessity and proportionality. Action must be taken against Israel not only to uphold accountability but also to set a precedent to prevent such violations in the future.
