By Mohamed Hanipa Maidin**
Malaysia - The legal issues surrounding the use of force, known to international lawyers as jus ad bellum, have once again been thrust into the legal limelight as a result of “Israel’s” unprovoked attack against Iranian consulate in Damascus, Syria as well as Iran’s counter attack against "Israel".
When “Israel” decided to launch a deadly strike on the Iranian consulate in Damascus, Syria, that took place on April 1, many argue that the “Israeli” government should have expected a retaliatory attack by Iran.
As duly expected on April 13, Iran finally launched hundreds of drones and missiles at “Israel” in retaliation for such a deadly “Israeli” strike on its consulate in Syria. “Israel's” initial and unprovoked attack killed Iranian General Mohammad Reza Zahedi [Also known as Hassan Mahdawi]. He was a senior commander in the Iranian Islamic Revolutionary Guard [IRG] Quds Force in Syria and Lebanon.
His death occurred while he was in a building adjacent to Iran’s consulate in Damascus – a location the Iranians claimed is still protected by international law. Apart from Hassan Mahdawi, the “Israeli” attack had also killed seven Iranians, including two veteran commanders.
Under international law, Iran consulate in Syria and all the people therein are duly protected under Vienna Convention on Consular Relations 1963 as well as under Vienna Convention on Diplomatic Relations 1961. Who violated these laws? Iran or “Israel”? The deafening silence on the part of many western powers, especially “Israeli” allies on such a flagrant violation of international law has been mind boggling.
According to “Israeli” narratives, Hassan Mahdawi was allegedly responsible for attacks against “Israel” and the arming of Iranian proxies in the region. Hence, the attack against the Iranian consulate in Damascus, Syria- according to “Israel”- was justified under the so-called doctrine of “preemptive or anticipatory self-defense”. But such a questionable self-defense has never been legally recognized by the International Court of Justice [ICJ] in any of its judgements. Ergo under international law such a defense, strictly speaking, never exists. We may say that this ipse dixit lacks any judicial recognition especially from the ICJ.
We argue that only the ICJ is the authoritative body which has the sole right to interpret the scope and real meaning of self-defense under the UN Charter.
Anyway, “Israel” finally managed to provoke Iran to react this time around. Historically speaking “Israel’s” attacks against Iran include numerous attacks on Iranian nuclear sites, assassinations of scientists within Iran, and actions against Iranian proxies in Syria, Lebanon, Iraq and Yemen. And despite those deliberated provocations, Iran’s counter-strikes against “Israel” had been minimal or insignificant. Some argue even Iran’s response to the US assassination of Iranian General Qassem Soleimani in 2020, for instance, was perceived to be feeble.
Iran’s ambassador to the United Nations [UN] - Saeid Iravani- vigorously defended his country’s drone and missile attack against “Israel”. He maintained that such a counter attack was legally justified as Iran was merely exercising its inherent right to self-defense. And to Iran's credit, Iravani also told the UN Security Council that Iran has no intention of escalating conflict in the region. Be that as it may it would be fair to conclude that the act of self-defense exercised by Iran against “Israel” was reasonable and proportionate hence legal.
As expected the US and other countries in the West swiftly rallied to support Israel. Despite perceived tensions between “Israeli” Prime Minister Benjamin Netanyahu and US President Joe Biden are high due to the ongoing war in Gaza, Washington still strongly and unequivocally stands by “Israel”.
A barrage of criticism against Tehran’s alleged “aggression” has unfortunately continued unabated in the West.
British Prime Minister Rishi Sunak, for instance, condemned “in the strongest terms the Iranian regime’s reckless attack against “Israel”. Sunak categorically stated that Iran’s attack showed that the country was “intent on sowing chaos in its own backyard”. Never mind it was “Israel” who started the aggression against Iran.
Other western leaders also joined the chorus. Hence the Czech Ministry of Foreign Affairs and Canadian Prime Minister Justin Trudeau whined about Iran’s “disregard for peace and stability in the region”, and regurgitated that old, tired slogan about “‘Israel’s’ right to defend itself”.
Germany’s Ambassador to “Israel”, Steffen Seibert unashamedly proclaimed in a social media that German solidarity “with all ‘Israelis’ tonight whom Iran is terrorizing with this unprecedented and ruthless attack”.
The Western response to the intercepted Iranian missiles and drones explains a curious double standard. Sunak’s pathetic claim that “no one wants to see more bloodshed” reaffirms the hypocrisy of the West- as long as it’s Palestinian blood, it’s all totally fine.
Such irresponsible responses by those western leaders beg this question: was Iranian retaliatory attack against “Israel” legally defensible under international law?
Article 51 of the UN Charter legalizes the use of arms in any armed conflict which is otherwise illegal under Article 2 (4) of the same Charter. It is legally permissible under the doctrine of self-defense.
Article 51 of the Charter of the United Nations reads " Nothing in the present Charter shall impair the inherent individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security."
It seems that the legal validity of Iran’s reliance on Article 51 of the UN Charter seems to be a slam dunk conclusion. The factual matrix of the case clearly supports the action taken by Iran. Apparently, there was an occurrence of an armed attack by “Israel” against Iran or its interest. It is never disputed that “Israel” launched the first armed attack against Iran. Hence Iran has an inherent right to respond to such an attack by resorting to an individual self-defense under Article 51 of the UN Charter.
The International Court of Justice [ICJ] has taken a rather restrictive view of Article 51 and the customary norms associated with it thus prohibiting self-defense against attacks that do not reach a certain level of gravity or whose source is not identified by convincing evidence.
Some argue that Iran has lost such a right to self-defense due to the fact it had failed to exercise such a right immediately after the “Israeli” attack. Thus, its counter attack against “Israel” on April 13 was not considered to be instant hence Iran’s right to self-defense should have been duly forfeited. Implicit in this argument is that the counter attack by Iran was no longer necessary-an important ingredient constituting a valid self-defense.
Truth be told there is merit to this argument. In the words of Daniel Webster in the famous Caroline incident, the counter attack by Iran was arguably not a “necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment of deliberation”.
However, in my view, the issue of delay in exercising the right to self-defense is essentially a question of fact to be determined on a case-by-case basis. Given the nature of modern warfare and considering the nature and strength of “Israel's” military power, it would be absurd for Iran to simply launch its retaliatory attack against “Israel” without sufficient preparations. Hence such elements ought to be duly factored in in assessing the issue of delay.
And to its credit Iran has openly declared that after its counter attack on April 23, its military operation against “Israel” can be duly considered terminated. Apparently, Iran seeks to contain the situation by declaring that its score with “Israel” has duly settled.
Iran, in my view, has also made a strong case by arguing that its retaliatory attack could have been avoided if the Security Council took a proactive and prompt action by bringing the perpetrator of the crime/attack against the Iran consulate to justice.
As Iran has duly advocated that its counter attack was made within the parameters of international law some international law lawyers argue that whether or not “Israel” sees it in the same way will depend entirely on a telephone call between Netanyahu and Biden.
** Mohamed Hanipa Maidin is a former deputy minister of law. He has a master degree in international law.
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