After a week of rumors and doubts, the prime minister of Israel, Benjamín Netanyahu, has managed to involve the United States in its particular military campaign in the Middle East. As announced by the American president, Donald Trump, the United States has attacked Iranian nuclear facilities of Fordow, Natanz and Isfahan, using B-2 poachers and Tomahawk missiles launched from submarines.
The participation of the United States was essential to carry out this attack, since these aircraft are the only ones that can transport a unique weapons, the GBU-57 bombs, with the capacity to destroy especially protected underground bases.
The use of military force according to international law
One of the fundamental norms in international relations is the prohibition of threatening or making use of force against another State, collected in article 2.4 of the United Nations Charter. This prohibition applicable to all states of the international community is only recognized two exceptions.
The first is the authorization of the United Nations Security Council. The constitutive treaty of the international organization recognizes in article 42 the possibility that the Council decides to use force in situations that constitute a threat or breakdown of international peace and security in order to restore or maintain this peace.
Although the Security Council has gathered to treat previous Israeli attacks and the crossing of blows that have followed it, has not approved any resolution to condemn Israel’s action, much less to establish some measure. In fact, this attitude contrasts with the convictions of the General Assembly and the Security Council received by Israel in 1981 for the bombing against the Iraqi nuclear reactor of Osirak. They were other times.
The second exception is the right to legitimate defense, enshrined in customary international law and in article 51 of the United Nations Charter. In this way, before an imminent or ongoing armed attack of a state – or a non -state actor controlled by that State – against another, the necessary and proportional armed actions can be carried out with the sole purpose of stopping said aggression.
This right is not configured as a right of retaliation or intervention without limit, but as a provisional and subsidiary measure until the Security Council takes the necessary measures to maintain peace and security. The inaction of the organ, as with Russian aggression to Ukraine, allows the armed attack to resort to military force.
At this point it is important to note that the armed attacks that justify the legitimate defense must be producing at the time of responding or being imminent. While there is no consensus on what is understood as imminence, the most widespread positions understand that it would be a concrete action close over time. That is, it cannot be a threat of a future attack or a general threat.
Illicit preventive attacks of Israel (and United States)
Israel has declared that its objective, at least the formal, is to destroy the Iranian nuclear program in fear that “in a short time” will be done with the atomic bomb. In this sense, the International Atomic Energy Agency declared a few days ago that Iran was breaking its obligations on nuclear non -proliferation by verifying that it was not cooperating in the inspections provided for in the nuclear agreement since 2019. That year, President Donald Trump withdrew the United States from the international treaty.
However, the mere violation of an international obligation does not justify resorting to the use of military force. Even accepting the Israeli hypothesis that Iran were chasing the nuclear weapon, as we have advanced, I would not have the right to launch a military offensive.
There has been no authorization from the Security Council, nor an armed attack by Iran. In this sense, the existence of evidence that points to imminent aggression can be ruled out. In fact, if the exchange of April 2024 attacks is examined, both illicit, any kind of doubt is destined. The save of missiles and drones launched by Iran in “response” to the murder in Tehran in July of that year of the then leader of Hamas, Ismail Haniya, and also the illegal attack against the Iranian embassy in Syria, was characterized by its containment and performative character.
In recent days, Israel has tried to refine its argument by pointing out, among other things, that its armed attack would be justified by Iran’s substantial involvement in the actions of its proxiessuch as Hezbollah or the hutis Yemenís.
However, the Iranian control of these groups does not reach the degree of effective control required by the International Court of Justice; They are far from acting as a transmission belt from Iran.
In fact, if that degree of control would have existed, operations would continue to be illicit because they would not be necessary to stop the attacks of the aforementioned groups. How does the launch of drones stop from Yemen by bombing Iran’s nuclear power plants?
In short, the action is nothing more than a “preventive” attack – and, therefore, illicit – in the face of an uncertain future threat. It is a case comparable to the American aggression of Iraq of 2003.
The current threat to international peace and security
Everything indicated is applicable to the United States, insofar as it was attending Israel. American and Israeli bombings constitute crimes of aggression that violate Iranian territorial integrity and sovereignty.
If the will to get a nuclear weapon, a desire that has surely rooted in the Iranian elite after these actions, constituted a threat to international peace and security, the truth is that, today, the only holder of nuclear weapons in the region is Israel.
Thus, as a victim of an armed attack, it will be the one who would have the right to defend himself. However, to the extent that attacks on US bases in Iraq and Qatar as an objective of opportunity are not necessary to stop an aggression already completed or there is the threat of an imminent attack, we would be faced with reprisals forbidden by international law.
It is time for the international community to force the aggressors to silence the weapons and to redirect the conflict.
Aritz Obregón Fernández, researcher and professor of international law, University of the Basque Country / Euskal Herriko Unibertsitatea
This article was originally published in The Conversation. Read the original.
