Is Israel's Attack on Iran legal?
On what probably is an irrelevant question.
As the Israel-Iran war has worn on, there has been a lot of hand-wringing about whether Israel’s attack on Iran was preemptive or preventive. The former is “legal” and the latter is not under modern theories of international law.
I don’t think the distinction really matters in large part because I’m a skeptic of international law, which I tend to see as little more than retroactive moralizing rhetoric by preening Western liberal powers. But in this case, I’d extend my argument even further: That this distinction no longer matters points to a deeper reality: whatever else happens in this war, international law as we know it is one of its most significant casualties.
Critics usually go after me by pointing out that functionally international law exists. They point out that Israel itself is going to some lengths argue that it’s preempting — that Israel is acting to save itself from an overwhelming threat and is not striking opportunistically while Iran is at a historic weak point. Clearly therefore international law is real because it matters to Israel, a hard-headed practitioner of realpolitik, how its attacks are judged.
And while to the United States, the United Nations is either a punchline or a cudgel (depending on context), for smaller countries — even small ballsy aggressive countries with nuclear arsenals — getting tied up in knots by an army of lawyers in international institutions obviously has consequences. The fact that the United States has to shield Israel in international fora, critics argue, is also proof that international law is “real”. While the norm of international law may be imperfect and not binding on superpowers, it clearly exists somehow — and will continue to exist, no matter what happens in this war.
So let me reply in a similarly functional way.
There has always been plenty of overt hypocrisy when it comes to international law. It was particularly amusing1 to see the Biden administration go into high dudgeon about Russia launching missiles into cities, but then tie itself into knots over how Israel’s razing of Gaza was a different case altogether. But as
has argued in the past, the hypocrisy was itself useful. The United States may be incoherent in its arguments, but it still paid lip service to the idea of international law even if it sought to apply it unevenly. Most in the so-called Global South have followed Shadi, long sneering at our two-faced brazenness while nevertheless clinging to our hypocritical commitments to universals in hopes of taming our excesses.What sets this moment apart from the Biden contortions is one Donald J. Trump. Trump’s political superpower has always been not only flaunting norms, but gleefully pointing out that all those that pay lip service to them are somehow hypocritical. His tacit argument to voters is that his amoral stance is simply more honest. And in international affairs in particular, he has not just flaunted norms, he has not even acknowledged they may exist.
There’s good reason to suspect that throughout the run-up to the Israeli strikes, the U.S. bureaucracy (aka the “deep state”) has been completely uninvolved in decision-making. There are likely zero lawyers whose counsel Trump would even have to dismiss as he contemplates how to handle the war. When confronted by journalists about DNI Tulsi Gabbard’s assessments about Iran not being close to getting a nuke, Trump didn’t quibble with the assessment but rather imperially dismissed the question: “I don’t care what she said. I think they were very close.” The kinds of factual determinations international law requires — like whether Iran posed an imminent threat — are irrelevant to Trump, and thus moot in practice.
Fine, critics might say. But the United States was always ambivalent about international law, and this final abandonment by Trump, while damaging, may not be fatal to the entire project. Surely the so-called middle powers in Europe are still committed to upholding international norms.
To which I’d reply, “Don’t be so sure.” Just today, via the great Bojan Pancevski on X:
German chancellor @_FriedrichMerz said he was grateful Israel was acting against Iran: “This is the dirty work that Israel is doing for all of us.” Germany, Merz said, is also affected by the regime that has “brought death and destruction to the world, with attacks, with murder and manslaughter, with Hezbollah, with Hamas.”
“I can only say I have the greatest respect for the Israeli army, the Israeli leadership, having the courage to do this. Otherwise, we might have seen months and years of this regime's terror — and then possibly with a nuclear weapon in their hands.”
The Economist’s Shashank Joshi followed up by tweeting, “Merz is not the only official in Europe who feels this way; he’s the only one saying it out loud.”
Now it may be true that evidence of a renewed Iranian sprint for the bomb emerges in the coming days, making Israel’s attack retroactively justifiable within the confines of international law. But short of that, the Europeans’ emerging stance indicates to me that even for them, international law is always a question of convenience and usefulness. They just never had the courage to say so.
And yes, amusing and not disgraceful. Recall, dear reader, I see it all as moralizing rhetoric, not as anything real.
Well said, Damir. I see international law as a tool: one option among many, that states big and small can point to when it suits their interests.
So much of what we in the West think of as universal values or obligations only appear that way because the country that came out on top in 1945 said they were universal. And it's not like immediate-post-World War II Westerners really, truly, thoroughly believed in universal human rights. The US was still rife with segregation, Europeans still subjugated Africans, etc.
There's nothing inherently wrong with prioritizing some human lives over other human lives. That's what humans do. Humanity sucks that way. The sooner liberals realize that, the better.
I think this question doubly doesn't matter because it's not actually a question of international law as such but rather a pseudo-legalistic framing on what is actually a moral and prudential question: should Israel have attacked Iran's nuclear sites, rather than can Israel do so under international law. Preemption and prevention are questions of jus ad bellum or "right to war." Iran and Israel were already at war on June 12/13. That threshold had already been crossed.
The war between Israel and Iran began, arguably, On October 8, 2023 when Hezbollah joined in the attacks in Israel. There is, as yet, no hard evidence Iran knew what Hamas was planning on October 7th but they certainly had a hand in Hezbollah's subsequent involvement, an act of war to which Israel, at least arguably, had a right to respond. One can debate the prudence of escalation by directly striking Iran when it is acting through proxies but even that argument fell by the wayside after Iran attacked Israel from its own soil on October 1 of last year. The two states have very clearly been in a state of war since then, at least. Thus, the question of preemption vs prevention, which is fundamentally a jus ad bellum question, does not come into play here. It is merely an attempt to lend a veneer of legalistic credibility to an argument over whether Israel should have taken this particular action in a war it was already engaged in.
If we take international law seriously at all then we are in the realm of jus in bello, or the 'law of war' where the proper questions to ask are about military necessity, distinction, proportionality etc. These too are terms of art that often get abused in public discourse to lend a false sense of legal credibility to what are really moral and prudential arguments, but I digress.... I think we need to acknowledge that the answers to questions like this can't always turn on the minutiae of some minor point of law like the distinction between prevention and preemption. In the Wisdom of Crowds tradition, we need to dig deeper and interrogate first principles rather than appealing to misapplied legal frameworks that (at least) a significant portion of WoC doesn't believe in anyway.