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Israel and Iran have both broken the rules

The tail-spin of violence between Israel and Iran is a bitter lesson on what happens when we let the law of the jungle smother the rule of law. Israel’s latest missile attacks on Iran followed the latter’s largely ineffective barrage of 300 missiles and drones against Israel over a week ago, which severely injured a seven-year-old child and damaged a military base. Iran’s strike was a response to Israel’s killing of two Iranian generals and eight others at an Iranian consulate in Syria earlier this month, seemingly to deter Iran’s support for Hezbollah.

Both countries have snubbed calls from world leaders to deescalate. Both claim to be the victim of the other. These retaliatory strikes are a frightening escalation of conflict in a region already on a knife-edge over Gaza and must cease immediately.

Much western political and media commentary has been partisan, reflexively taking Israel’s side over Iran’s. In contrast, international law does not take political sides, but applies the rules equally to all countries. When respected and enforced, international law is designed precisely to prevent retaliatory spirals of violence like the one the world is now trapped in.

All of these strikes are illegal under international law. A country can only use military force where it is necessary in self-defence to repel a continuing armed attack. Where there is no right of self-defence, military attacks violate the strict ban on the use of military force under international law and the United Nations Charter. They may also constitute the international crime of aggression by the civilian and military leaders who order them, as well as violations of the human right to life of the victims.

Israel’s latest attack was not self-defence because Iran’s earlier unlawful armed attack had decisively concluded, on the same day it was launched, over a week ago. Israel had every right to defend against that attack when it was occurring, as Israel did with assistance from allies.

Once an attack is finished, it is unlawful to continue to use military force to retaliate or punish, or to deter future speculative, non-imminent threats. Self-defence must be purely defensive. Israel and its allies had successfully intercepted most of Iran’s missiles and drones on the same day and Iran signalled that no more were in-coming.

Iran’s earlier barrage against Israel was not self-defence for a similar reason. Israel’s attack on Iran’s armed forces and consulate in Syria was a single, completed attack. It was therefore unnecessary to use force where there is no ongoing attack to repel.

In turn, Israel was not exercising self-defence against Iran in the initial consulate strike because Iran’s armed forces were not then directly attacking Israel. Israel did not provide any legal justification for its strike or report it to the Security Council, as required by the UN Charter.

Israel’s consulate attack was not only a prohibited use of force against Iran, but also against Syria, on whose territory the force was used. It is also part of a larger pattern of undeclared extrajudicial executions by Israel in its own war on terror. In recent years, Israel has conducted hundreds of secret, deterrent strikes in Syria against Hezbollah and Iranian targets, without reporting them as self-defence.

Israeli officials responsible for the consulate attack, which contained the Iranian ambassador’s residence, may also have committed crimes under a 1971 international treaty to protect diplomats. It is an offence to violently attack the official premises or private accommodation of a diplomat where it is likely to endanger them. Iran, Israel and Syria are all parties to the treaty and all have criminal jurisdiction over such offences. Military attacks on sacrosanct diplomatic premises are a shocking new low in the disregard of international law.

This latest round of violence was predictably fuelled by decades of impunity for state violations of a most fundamental global rule – the prohibition on the use of force. The rule was adopted in 1945 after the catastrophe of World War II, which killed 80 million people, precisely to avoid the tit-for-tat ignition of uncontrollable conflagrations.

To do its good work, the law has to be taken seriously and not applied selectively and based on political double standards. Israel and Iran are both aggressor states, both are violating the UN Charter, and both are betraying the peaceful aspirations of humanity.

Both countries should be met with the full force of international law. The Security Council must effectively respond without irresponsible vetoes blocking action. Countries like Australia should unilaterally impose sanctions on the leaders of both countries, to isolate and stigmatise them and to compel them to recommit to law and peace.

Ben Saul is Challis Chair of International Law at The University of Sydney and the United Nations Special Rapporteur on human rights and counter-terrorism.

Article link: https://todayspaper.smedia.com.au/smh/shared/ShowArticle.aspx?doc=SMH20240421&entity=Ar03901&sk=87FE5AA2&mode=text
Article source: Sydney Morning Herald | Ben Saul | 21 April 2024

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