Law on self-defence is caveat pre-emptor

With the release of the US National Intelligence Estimate on Iran it was widely reported that Iran abandoned its nuclear weapons program in 2003. What was omitted from most analysis of Iran’s nuclear intentions is that the intelligence estimate also reported that the leading intelligence agencies have only “moderate confidence” that Iran has not resumed its nuclear weaponisation program.

This unsatisfactory state of affairs has increased speculation about whether the US is contemplating launching pre-emptive military strikes on Iran’s nuclear facilities which are reported to be continuing to produce highly enriched uranium and weapons grade plutonium. These facilities, it is clear, operate in direct violation of the Nuclear Non-Proliferation Treaty to which Iran is a signatory.

The US administration, for its part, submits that Iran poses a direct threat to regional and global security. And they may be right. Iran’s President Mahmoud Ahmadinejad has repeatedly called for Israel to be “wiped off the map”.

Iran also sponsors terrorism in southern Lebanon, the Gaza strip and elements of the insurgency in Iraq.

Notwithstanding, any pre-emptive military strike by the US or its allies against Iran would be a clear violation of international law prohibiting the use of force by states.

In the wake of World War II, the international community vowed to end the scourge of war and promote international peace and security through proper adherence to principles of justice and international law.

The UN Charter embodies this commitment. Article 2(4) of the Charter calls upon states to refrain from the threat or use of force against other states and is considered such an integral aspect of international law that no state has the right to depart from it.

International law provides only two exceptions which permit the lawful use of force by states. First, the Security Council can authorise the use of military force in response to a threat or breach of the peace in order to maintain international peace and security. Second, Article 51 of the Charter provides that every nation has the right to defend itself against an armed attack.

The right of self-defence has always allowed countries to act in self-defence in anticipation of armed threats that are imminent and credible. Obviously there will be occasions when it is difficult to determine with absolute certainty that an armed attack is imminent. However, the right of anticipatory self-defence is limited at international law to situations where there is an overwhelming necessity to act in self-defence.

This is important because the nature of modern weapons of mass destruction, chemical, biological and nuclear, means that states must have the capacity to defend themselves before an actual armed attack. The notion of self-defence at international law would otherwise be rendered meaningless.

Although international law recognises anticipatory self-defence, it does not go as far as recognising pre-emptive self-defence. This occurs when a state acts in purported self-defence against some threat that is not imminent and, as a corollary, may not even be credible.

The concept of pre-emptive self-defence is incorporated in the US National Security Strategy which was used, in part, to justify the intervention in Iraq.