Reactors and regime change

As a regional hegemon, it has both the capacity and will to retaliate asymmetrically

- By Kusum Wijetilleke

ISRAEL'S recent attacks on Iran’s nuclear infrastructure constitute a clear violation of international law, according to scholars Amichai Cohen and Yuval Shany. Writing for JustSecurity.org, they argue that if force was used "in anticipation of a non-imminent future threat; nuclear or conventional, there is good reason to deem it unlawful.

This is indeed how the Security Council approached the 1981 Israeli attack against the Osirak reactor in Iraq”.

Marko Milanovic, editor of the European Journal of International Law, argues that “Israel’s use of force against Iran is, on the facts as we know them, almost certainly illegal.” Cohen et al note that Israel has yet to offer a coherent legal justification for Operation Rising Lion under international law. Although the IDF framed the operation as preemptive, its statement avoided legal language; there was no reference to the right to self-defence under Article 51 of the UN Charter, nor did Israel submit the required Article 51 notification to the UN Security Council. Under Article 51, self-defence requires an actual or imminent attack. Israel cannot pass the “Caroline Test,” which demands that self-defence must be necessary and leave “no moment for deliberation”. The Israeli strike, intended to forestall a future threat, fails the urgency and proportionality tests required for lawful anticipatory self-defence.

Milanovic explains that anticipatory self-defence is highly contested. A restrictive view sees “imminence” as temporal, an attack about to happen. A broader view interprets it causally; ‘a state is preparing for an attack in the future and must be stopped now’. Yet even this broadest view fails to justify the Israeli strike: Iran cannot reasonably be expected to launch a nuclear weapon it does not currently possess.