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Md. Siam Shafi |
Jus ad bellum, in international law, is the legitimate reason under which
states may engage in war or conflict with other states. Jus ad bellum is a broader body of law that suggests when force can
be used, while Article 51 of the UN Charter is the specific rule within that
body which recognizes the inherent right of individual or collective
self-defence in response to an armed attack. Self-defence is one of the exceptions to the
prohibition against the use of force under Art. 2(4) of the UN Charter. Article
51 of the UN Charter is a key component of jus
ad bellum, balancing the prohibition on war with the legitimate need for
self-defence. Article 51 of the UN Charter states as follows:
“Nothing in the present Charter shall impair the inherent
right of individual or collective self-defence if an armed attack occurs
against a Member of the United Nations, until the Security Council has taken
the measures necessary to maintain international peace and security. Measures
taken by Members in the exercise of this right of self-defence shall be
immediately reported to the Security Council and shall not in any way affect the
authority and responsibility of the Security Council under the present Charter
to take at any time such action as it deems necessary in order to maintain or
restore international peace and security.”
In addition, Chapter VII of the UN Charter authorizes the United Nations
Security Council (UNSC) to maintain international peace and security, including
through the use of force when required. Thus, the UN Charter permits the use of
force only under two specific circumstances: 1) self-defence; and 2) authorized
by the UNSC. Jus ad bellum requires
the fulfillment of certain criteria, such as just cause, proper authority,
right intention, proportionality, reasonable chance of success, and last
resort, as specified by scholarly opinions. Iran waged war with Israel on April
13, 2024, by launching more than hundreds of drones and
missiles on Israeli land. Some legal scholars opined that Iran’s unprecedented
attack against Israel failed to meet the essential conditions of jus ad bellum. On the other hand, many
scholars have opined that these criteria are not absolute.
Firstly, a just cause is always required for a state to
engage in war. This principle asserts that there must be a legitimate reason
for a state to wage war. An Israeli airstrike destroyed the Iranian embassy in Damascus on 1 April 2024. As
discussed, the UN Charter (Art. 51) allows for self-defence in response to an
armed attack. Any attack on the embassy is considered a direct attack
against the state. Self-defence ensures an inherent right for a state to use
its force in response to an armed attack. So, the destruction of Iran’s embassy
in Damascus by Israel legitimizes Iran’s attacks on Israeli land. Secondly, the
principle of proportionality in jus ad bellum stipulates that the use of force must be proportional
to the attack suffered.
Thirdly, the proper authority principle asserts that war must
always be declared by a sovereign authority. This principle holds that only
recognized sovereign states can lawfully wage war. Being a member of the UN,
Iran technically qualifies as a legitimate authority to respond to the
destruction of the Iranian embassy in Damascus due to the inherent right of
self-defence as outlined in Art. 51 of the UN Charter.
Fourthly, the principle of right intention posits that the purpose of war
should not be exclusive to the pursuit of the national interests, but should
also include the reconstruction of justice. Israeli bombardment has resulted in
the deaths of over 40,000 Palestinian civilians. Further,
Israeli attacks in Lebanon have killed over 3,900 civilians over the last year.
Various scholars hold differing opinions about the legitimacy of Iran's
intentions. Some scholars argue that Iran's intention to wage war is heavily
driven by political considerations. Being a Shia-majority nation, Iran has less acceptance
among Sunni and Arab communities. Scholarly opinion suggests that Iran is
seeking greater acceptance among Sunnis and Arabs by engaging in war with
Israel. The current Israeli government poses a threat to civilians living in
neighboring countries surrounding Israel. Furthermore, Iran’s large-scale
missile/drone attack after Israel’s consulate falls under the proportionality
principle of jus ad bellum remains
debatable. Although Iran’s engagement in war with Israel may be seen as
politically driven, it can also be interpreted as a genuine effort to uphold
the rights and dignity of the Palestinian people.
Fifthly, the reasonable chance of
success
principle asserts that the State must have a reasonable likelihood that the
actions will achieve the desired outcomes. In the context of the Iran-Israel
war, the reasonable chance of success is a complex issue due to military,
geopolitical, and strategic uncertainties. Ray Takeyh, an Iranian-American Middle East
scholar) and Reuel Marc Gerecht, an American writer and political
analyst) argued that Israel is only focusing on short-term approaches, while
Iran is succeeding in its long-term plan through proxy groups (Hezbollah and
Hamas) and developing their secret plan that will gradually weaken Israel’s
security. Finally, the last resort principle obliges states to use
peaceful and non-violent actions before engaging in war. It can be argued that
Iran’s act of engaging in war with Israel before exhausting diplomatic options
violates this principle.
To conclude, the jus ad bellum
conditions have not been fully met for Iran to wage war against Israel.
However, their actions are still legitimate since they were carried out in the
exercise of the right to self-defence.
Md. Siam Shafi, currently working as a Legal Research Intern at Sattar & Co. Also an Apprentice Lawyer, District and Sessions Judge Court, Dhaka, Bangladesh. Have completed LL.B (Hons.), from School of Law, BRAC University.