Recently,
and quite suddenly, there has been a significant improvement in the overall
mood about the prospects for peace in the Middle East.  One of the constant looming dangers
hanging over the region over the past decade was the prospect of a regional war
triggered by a preemptive strike by certain western nations against Iran’s
nuclear program.  

Iran maintains
that it has the right to develop and utilize the complete nuclear fuel cycle because
it is a signatory to the Nuclear Nonproliferation Treaty (NPT).  Certain states have argued that Iran is
using its status as a signatory of the NPT to covertly develop a nuclear
weapons program.  Let us assume for
sake of argument that Iran was, in fact, developing nuclear weapons.  Would a preemptive military attack on
Iran be legal under international law? 
No.

Article 2(4) of the United Nations Charter
states a bright line rule: “all members shall refrain from the threat or use of
force against the territorial or political integrity of any state.”    The only exception to the
prohibition on the use of force adopted by the Charter is in Article 51:
“Nothing in the present Charter shall impair the inherent right of individual
or collective self-defense if an armed attack occurs against a Member of the
United Nations…”

Taken together, Article 2(4) and
Article 51 stand for the proposition that it is no longer acceptable for States
to use force to achieve political objectives.  The object and purpose of the Charter is to achieve
international peace and security 
by outlawing the use of force. 
As part of this prohibition on the use of force, the Charter affords
individual states the right to respond to an armed attack.    Otherwise, the Charter
could provide no practical deterrence to aggressors who were capable of
accomplishing their military objectives faster than the international community
could respond.  In other words,
without Article 51, Article 2(4) would have the effect of paralyzing
law-abiding states to the advantage of belligerent states.

Thus, the UN Charter is clear: a
state can invoke its right to self-defense once an armed attack has
occurred.  This interpretation
corresponds to the predominant state practice, as a general right to preemptive
self-defense has never been invoked under the UN Charter.    The only question left to
interpretation after considering the text and legislative history of the
Charter is: what constitutes an “armed attack”? 

Customary International Law since 1945 – Defining “Armed
Attack”

Two cases generally considered
real-life illustrations of the use of anticipatory self-defense are the 1967
Israeli-Arab War and the 1981 Israeli strike of the Osirak Nuclear
reactor.  The former is considered
a legitimate use of the right to self defense, the latter is considered an
incorrect use. 

Six Day War – A Legal Use of Force

In anticipation of the Six Day War
of June 1967, Israel bombarded the air forces of Egypt, Jordan and Syria.  Israel claimed an armed attack even
though it probably could have successfully used anticipatory self-defense to
justify attacking Egypt, Jordan and Syria.  In that case, no single measure taken by Egypt, on its own,
qualified as an armed attack. 
However, when all the measures taken by Egypt (i.e. ejecting the United
Nations Emergency Force from the Gaza Strip and the Sinai Peninsula; blocking
the Straits of Tiran; massing Egyptian troops on Israel’s border; and
provocative statements about the impending fighting) were evaluated as a whole,
it seemed obvious that Egypt was bent on an armed attack.  The only question was when, not
whether, war would materialize. 

The invocation of the right of
self-defense must be weighed on the ground of the information available (and
reasonably interpreted) at the moment of action, without the benefit of post
factum wisdom.  In the
circumstances, as perceived in June 1967, Israel did not have to “wait idly by
for the expected shattering blow,” but was entitled to resort to self-defense
as soon as possible.

— Kassem Dakhlallah is a partner with Jaafar & Mahdi Law
Group, P.C.  His practice focuses
on complex litigation including class actions, representative actions,
commercial litigation, civil forfeiture and personal injury. He can be reached
at (313) 846-6400 and kassem@jaafarandmahdi.com.

            Recently,
and quite suddenly, there has been a significant improvement in the overall
mood about the prospects for peace in the Middle East.  One of the constant looming dangers
hanging over the region over the past decade was the prospect of a regional war
triggered by a preemptive strike by certain western nations against Iran’s
nuclear program.  Iran maintains
that it has the right to develop and utilize the complete nuclear fuel cycle because
it is a signatory to the Nuclear Nonproliferation Treaty (NPT).  Certain states have argued that Iran is
using its status as a signatory of the NPT to covertly develop a nuclear
weapons program.  Let us assume for
sake of argument that Iran was, in fact, developing nuclear weapons.  Would a preemptive military attack on
Iran be legal under international law? 
No.

Article 2(4) of the United Nations Charter
states a bright line rule: “all members shall refrain from the threat or use of
force against the territorial or political integrity of any state.”    The only exception to the
prohibition on the use of force adopted by the Charter is in Article 51:
“Nothing in the present Charter shall impair the inherent right of individual
or collective self-defense if an armed attack occurs against a Member of the
United Nations…”

Taken together, Article 2(4) and
Article 51 stand for the proposition that it is no longer acceptable for States
to use force to achieve political objectives.  The object and purpose of the Charter is to achieve
international peace and security 
by outlawing the use of force. 
As part of this prohibition on the use of force, the Charter affords
individual states the right to respond to an armed attack.    Otherwise, the Charter
could provide no practical deterrence to aggressors who were capable of
accomplishing their military objectives faster than the international community
could respond.  In other words,
without Article 51, Article 2(4) would have the effect of paralyzing
law-abiding states to the advantage of belligerent states.

Thus, the UN Charter is clear: a
state can invoke its right to self-defense once an armed attack has
occurred.  This interpretation
corresponds to the predominant state practice, as a general right to preemptive
self-defense has never been invoked under the UN Charter.    The only question left to
interpretation after considering the text and legislative history of the
Charter is: what constitutes an “armed attack”? 

Customary International Law since 1945 – Defining “Armed
Attack”

Two cases generally considered
real-life illustrations of the use of anticipatory self-defense are the 1967
Israeli-Arab War and the 1981 Israeli strike of the Osirak Nuclear
reactor.  The former is considered
a legitimate use of the right to self defense, the latter is considered an
incorrect use. 

Six Day War – A Legal Use of Force

In anticipation of the Six Day War
of June 1967, Israel bombarded the air forces of Egypt, Jordan and Syria.  Israel claimed an armed attack even
though it probably could have successfully used anticipatory self-defense to
justify attacking Egypt, Jordan and Syria.  In that case, no single measure taken by Egypt, on its own,
qualified as an armed attack. 
However, when all the measures taken by Egypt (i.e. ejecting the United
Nations Emergency Force from the Gaza Strip and the Sinai Peninsula; blocking
the Straits of Tiran; massing Egyptian troops on Israel’s border; and
provocative statements about the impending fighting) were evaluated as a whole,
it seemed obvious that Egypt was bent on an armed attack.  The only question was when, not
whether, war would materialize. 

The invocation of the right of
self-defense must be weighed on the ground of the information available (and
reasonably interpreted) at the moment of action, without the benefit of post
factum wisdom.  In the
circumstances, as perceived in June 1967, Israel did not have to “wait idly by
for the expected shattering blow,” but was entitled to resort to self-defense
as soon as possible.

— Kassem Dakhlallah is a partner with Jaafar & Mahdi Law
Group, P.C.  His practice focuses
on complex litigation including class actions, representative actions,
commercial litigation, civil forfeiture and personal injury. He can be reached
at (313) 846-6400 and kassem@jaafarandmahdi.com.