For all Australia’s breezy talk of a “rules-based international order”, it doesn’t take much for our politicians to question that order to shield Israel.
The Australian foreign affairs minister, Penny Wong, on Sunday extraordinarily referred to Israel’s “right to self-defence” after it pre-emptively attacked Iran’s nuclear enrichment program. Australia’s defence minister, Richard Marles, affirmed that statement to the ABC on Monday. The opposition leader, Sussan Ley, made the same call over the weekend. While Marles and Wong rightly urged de-escalation, and Ley urged caution, they also failed to condemn Israel’s attack on Iran, along with a few other outliers like France and Germany.
Israel claims that its attack is necessary to prevent Iran acquiring nuclear weapons and using them in the future. The problem is that under international law, a country may only defend itself from an actual or imminent armed attack by another country.
Iran is obviously not attacking Israel with nuclear weapons. It is also not about to attack Israel, given that it has not built a single nuclear weapon, let alone indicated a specific threat to use one. Inflammatory and even genocidal rhetoric by Iranian officials over the years does not equate to a concrete plan to launch an imminent nuclear attack, particularly when Iran knows Israel has many more nuclear weapons and is backed by the US arsenal. Hossein Salami, the Iranian Revolutionary Guard chief killed by Israel in the latest attack, had vowed in 2019 to “wipe the Zionist regime” off the political map.
There is no wider legal right of “anticipatory” self-defence against a speculative, more distant future threat, to prevent another country acquiring weapons, or to disarm a country. Israel’s lawless attack hands Iran the legal right of self-defence.
When Israel attacked an Iraqi civilian nuclear reactor being built in 1981, the UN security council condemned it. When Israel bombed a Syrian nuclear reactor in 2007, it received little support. The US-led coalition’s attack on Saddam Hussein’s Iraq in 2003, to dismantle weapons of mass destruction, was denounced by the vast majority of countries. The then UK attorney general warned it could constitute the international crime of aggression by political leaders. Recall too that Russia claimed to invade Ukraine in part because it speculatively feared Nato expansion.
Where there is no actual or imminent attack, there remains time to pursue non-violent means to address the threat, including action by the security council and International Atomic Energy Agency, sanctions, and diplomacy. The US was still negotiating with Iran as Israeli bombs began shredding peaceful dialogue, while the security council and IAEA were still actively monitoring Iran’s nuclear activities.
The current international rules on the use of force were written into the Charter of the United Nations in 1945 by the countries that survived the worst war in history, which killed perhaps 80 million people. Countries deliberately chose to abandon an international order built on brute military force, by limiting self-defence to only the most essential cases when a country is under attack.
The risk of abuse of “anticipatory” self-defence is simply too great, and too dangerous, for the world to tolerate. Many countries have hostile relations with other countries. Allowing each country to unilaterally decide when they wish to degrade another country’s military, even when they have not been attacked, is a recipe for global chaos – and for the unjustified deaths of many innocent people. Would Australia accept, for example, another country’s right to preventively bomb our Aukus program, if they perceived it as a security threat?
Israel’s current aggression against Iran is sadly part of a pattern of unlawful “anticipatory” violence against other countries. Most recently, since the fall of the Assad regime in Syria, Israel has systematically destroyed Syrian military bases and equipment, in the absence of any attack by the new Syrian authorities on Israel. It has thus deprived a sovereign country of its capacity to defend itself and to restore order, including to prevent atrocities against minorities.
The attack on Iran also raises concerns because it is not limited to preventing nuclear weapons, as claimed, but has also involved attacks on oil infrastructure and military bases. This suggests the attacks are a pretext for a wider campaign to weaken Iran. The attack may also have violated international humanitarian law, which regulates the fighting once it begins. The many Iranian nuclear scientists Israel has targeted were not taking a direct part in the hostilities and were thus protected civilians immune from attack.
None of this minimises Iran’s transgressions. Its trajectory towards nuclear weapons has rightly fuelled international concern, albeit in a context where Israel is the only nuclear weapons power in the Middle East, making others feel insecure and fuelling an arms race. Iran’s retaliatory strikes appear to have involved indiscriminate attacks on Israeli civilians, itself illegal. Iran is also well known for illegally sponsoring Hezbollah.
But illegal preventive war is not the answer. By allowing Israeli impunity for alleged international crimes in Gaza, the world has enabled Israel to feel untouchable and commit ever more severe violations. In the present geopolitical moment, every day we witness international law collapse further under the weight of realist politics and historically shortsighted hawks. This moral slide makes international life less stable and predictable, and more violent, for everyone, even the most powerful. It fuels grievances that perpetuate inter-generational cycles of vengeance and extremism.
International law is only law if we demand that our allies, not only our adversaries, obey it. If we apply it selectively, we cannot expect others to respect it, or to respect us.
Ben Saul is Challis chair of international law at the University of Sydney
