United States President Donald Trump is considering joining Israel in what it claims are its efforts to destroy Iran’s nuclear programme, based on its stated belief that Iran is “very close” to developing a nuclear weapon.
Israel argues that it has carried out attacks on Iran’s military and nuclear sites over the past week in anticipation of an Iranian nuclear attack. But is this a valid justification?
The United Nations Charter, which is the founding document for states’ rights since World War II, outlaws aggressive war, allowing military action only as self-defence.
Only the UN Security Council is empowered to decide if military action is justified, once countries have tried and failed to resolve their differences peacefully.
If a country is attacked while the UNSC deliberates, that country still has the “inherent right of individual or collective self-defence”, however.
The question of the legality of Israel’s strikes on Iran, therefore, revolves around whether Israel – and any allies coming to its aid – can justify its attacks on Iran as “anticipatory” self-defence.
Are Israel’s attacks on Iran’s nuclear facilities justified as self-defence?
Many experts say they are not.
“This is not a situation in which Israel is allegedly responding to an Iranian attack occurring now, whether directly or through proxies such as the Houthis,” wrote Marko Milanovic, a professor of public international law at Reading University who has served on the International Criminal Court (ICC), in the European Journal of International Law, which he edits.
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Israel cannot make the case that an attack is imminent, argued Milanovic.
“There is little evidence that Iran has irrevocably committed itself to attacking Israel with a nuclear weapon, once it develops this capability,” wrote Milanovic.
“And even if such an intention was assumed – again, it would be for Israel to provide any further evidence of such intention – I don’t see how it could plausibly be argued that using force today was the only option available.”
“Even if the broadest possible [legally plausible] understanding of anticipatory self-defence was taken as correct, Israel’s use of force against Iran would be illegal,” he concluded.
The United Kingdom’s chief legal counsel, Richard Hermer, advised Prime Minister Keir Starmer against getting involved in any attack on Iran, “unless our personnel are targeted”, according to Sky News.
“The possibility of acting in self-defence in view of an attack that might be coming is illegal in international law and we’re all very, very clear about that,” agreed Maria Gavouneli, a professor of international law at Athens University.
She said nuclear weapons have been discussed in international legal circles as a special case.
“There might be a chance for anticipatory self-defence, in other words, an exception to the rule, when we have clear evidence that there is a nuclear weapon being built,” Gavouneli told Al Jazeera.
Israel might try to make the case that its “continued existence was at stake and they had to act”, she said. To make this case, Israel would need “warranties, some kind of evidence offered by the International Atomic Energy Agency”, the UN’s nuclear watchdog.
Has the IAEA provided evidence that Iran is building a bomb?
The IAEA has said that it cannot verify what Iran is doing. But it has not clearly suggested that Iran may be building a bomb.
Iran stopped cooperating with the IAEA in February 2021 after Trump annulled a key agreement during his first term that obliged it to do so.
That agreement – the Joint Comprehensive Plan of Action (JCPOA) – had been negotiated by Trump’s predecessor, Barack Obama, in 2015.
On June 9, IAEA Director-General Rafael Grossi said Iran’s failures to comply with reporting obligations had “led to a significant reduction in the agency’s ability to verify whether Iran’s nuclear programme is entirely peaceful”.
He said Iran had “repeatedly either not answered, or not provided technically credible answers to, the agency’s questions” regarding the presence of man-made uranium particles at three locations – Varamin, Marivan and Turquzabad – and had “sought to sanitise the locations”.
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Grossi also described Iran’s “rapid accumulation of highly-enriched uranium” as a “serious concern”.
He was referring to 60 percent pure uranium enrichment facilities at Fordow and Natanz, and the IAEA’s discovery of 83.7 percent pure uranium particles at Fordow in 2023. Weapons-grade uranium is at least 90 percent pure. Under the JCPOA, Iran was to have uranium at no higher than 5 percent purity.
On June 12, just before Israel launched its assault on Iran’s military and nuclear sites, the IAEA approved a resolution declaring that Tehran was not complying with its commitment to international nuclear safeguards.
However, this week, Grossi emphasised that the IAEA had found no evidence of Iranian nuclear weapons production. “We did not have any proof of a systematic effort to move into a nuclear weapon,” he said.
Iran has responded that it is a signatory of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), under which it has agreed not to develop or acquire nuclear weapons, and the discovery of highly enriched particles at its sites may be the result of sabotage or malicious acts.
On Monday, Iran’s Ministry of Foreign Affairs announced that lawmakers were preparing a bill to withdraw Tehran from the NPT, in light of the Israeli attacks.
Has ‘anticipatory self-defence’ been used as justification for attacks before?
In 1981, Israel attacked and destroyed Iraq’s unfinished Osirak nuclear reactor, which was being built by French commercial interests, invoking anticipatory self-defence.
But the UNSC Resolution 487 (PDF) strongly condemned the attack as a violation of the UN Charter and the “inalienable and sovereign right of Iraq and all other States, especially the developing countries, to establish programmes of technological and nuclear development to develop their economy and industry for peaceful purposes”.
It also noted that Israel is not a signatory to the NPT. Israel is currently believed to possess 90 nuclear bombs.
Then-President George W Bush also invoked the argument of preemptive self-defence when justifying the 2003 US war against Iraq. He suggested Iraq might one day “cooperate with terrorists” to deliver a weapon of mass destruction on US soil, even though UN weapons inspectors said there was no hard evidence Iraq was developing such a weapon.
The UNSC refused to endorse Bush’s war, but he went ahead anyway with a “coalition of the willing”. Once in control of Iraq, foreign troops discovered no weapons of mass destruction.
In 2018, Israel revealed it had bombed a Syrian reactor 11 years before, apparently only just before it became operational, believing it to be part of a plan of the then-government of Bashar al-Assad to acquire nuclear weapons. Under Operation Outside the Box, it destroyed the North Korean-built plutonium reactor in Deir Az Zor in September 2007.
Israel’s justification was, again, that it was anticipating a Syrian nuclear attack.
Can attacks on individuals ever be justified under international law?
Israel killed several top Iranian physicists working on Iran’s nuclear programme on June 13. It is suspected of having been involved in several more assassinations of Iranian physicists and engineers since 2010.
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Milanovic said scientists who were enlisted in the armed forces of Iran could be considered fighters and targeted. However, he said, “scientists who are civilians – and most probably are – cannot lawfully be made the object of an attack. Simply working on a weapons programme as a researcher does not entail direct participation in hostilities that could remove civilian immunity from an attack”.
Both countries have been criticised for carrying out attacks on each other’s hospitals. About 70 people were injured when Iranian missiles hit the Soroka Medical Center in Beersheba in southern Israel on Thursday.
Israel accused Iran of a “war crime”, but Iran said the hospital was close to a military site, which was the real target. Foreign Minister Abbas Araghchi claimed the missile attack hit an Israeli military and intelligence centre located near Soroka hospital, causing only “superficial damage to a small section” of the health facility.
Meanwhile, Israel itself has damaged or destroyed the vast majority of hospitals and medical centres in the Gaza Strip since its war on the Palestinian territory began on October 7, 2023. In many cases, it has argued that Hamas was using those sites as cover for its operations.
But it is not permitted to strike hospitals and medical facilities under international law.
The International Committee of the Red Cross, referring to international humanitarian law, states: “Under IHL, hospitals and other medical facilities – whether civilian or military – enjoy specific protection that goes beyond the general protection afforded to other civilian objects. This elevated protection ensures that they remain functional when they are needed most. These protections were put in place by the Geneva Conventions for the Protection of War Victims in 1949.”
Israel also struck the Iranian state broadcaster IRIB, interrupting a live broadcast on Monday. TV anchor Sahar Emami denounced the “aggression against the homeland” and the “truth” as a blast went off and smoke and debris filled the screen. The footage then showed her fleeing the studio as a voice is heard calling, “God is greatest”.
Israel has also targeted and killed more than 200 journalists and media workers in Gaza since October 2023. In 2021, a building housing the offices of Al Jazeera and The Associated Press news agency in Gaza was destroyed in an Israeli strike.
Media professionals do not have special protections under the Geneva Conventions, but they are protected under the same clauses that protect all civilians in armed conflict, according to the British Institute of Comparative and International Law.
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