Professor Alexander Orakhelashvili
UK Government has published its legal position on the legality of defensive action in respect of Iranian regional attacks, by allowing USA to use British bases to that end. The document is rather brief, but its letter and underlying spirit is a significant improvement if compared to previous instances where the Government published or relied on legal advice, for instance Iraq invasion in 2003, on “imminent” attacks in 2017, and “humanitarian intervention” in 2018. Unlike those earlier instances, this current document is more nuanced and a better attempt to avoid arguments that would be both overstretched and implausible; and it also focuses on the situation where the UK has been genuinely affected through hostile activities and the legal as well as moral case for some action to be taken is relatively greater.
The document does not expressly touch upon the legality of US-Israel attacks on Iran. It the argument of self-defence under Article 51 of the UN Charter and relies on the correct criterion that “The UK and its allies are permitted under international law to use or support force in such circumstances where acting in self-defence is the only feasible means to deal with an ongoing armed attack and where the force used is necessary and proportionate” (emphasis mine). This much is indisputable and amounts to the outer limit within which the forcible action could be taken. That context also might be an indication that the Government does not consider US-Israel action as lawful, because the latter action is plainly beyond the limits stated in the document, and its legal justification would be beyond reason in any case.
A similarly restrictive and nuanced language is used to the effect that UK military assets are used “to intercept drones or missiles targeting countries not previously involved in the conflict”. It is stated that “the UK is acting in the collective self-defence of regional allies who have requested support” Here it would have been useful to provide a detail on whether military assistance it was requested informally or through a written communication. This would have been useful, as the requirement of request is stated by the International Court of Justice on rather strict terms (here, para.199): “In the absence of a request” there is no right to collective self-defence, so it is up to the requested State to demonstrate that the request has been issued by the victim State. This is not to doubt that what the Government is saying is in fact the case, but a greater clarity on detail would have made the argument even more persuasive.
Overall, the (collective) self-defence would in principle justify use of force against “drones or missiles targeting countries not previously involved in the conflict”. However, the Government’s position goes further and includes a reference to “specific and limited defensive action against missile facilities in Iran which were involved in launching strikes at regional allies” (emphasis mine). That is plainly beyond what the right to self-defence allows any State to do in such circumstances. While it may be lawful to attack a missile facility while it is launching a missile on the State or its armed forces, what is stated in the above passage is more akin to collective reprisal than collective self-defence. This is beyond the scope of what Article 51 of the UN Charter or corresponding customary international law allows any State to do.
On the whole, one can agree that the announced forcible action is limited and specific, and more plausibly tied to the UK’s legitimate security interests than some of the earlier above legal positions were. However, one cannot avoid noticing how the media coverage presented Prime-Minister’s announcement on this matter as part of the (rapidly) changing situation on the ground. This evokes the memory of how the changing situation led to change of legal position and manipulation of legal argument in the context of Iraq war (discussed in detail here, Ch.5). Initially the US-UK position was that Security Council resolution 1441 included no automatic trigger of the use of force, but when they lost hope that the new resolution containing such authorisation would be adopted, they began insisting as though the first resolution did contain such authorisation, and invaded Iraq on that basis. Who could rule out that there would be another drive towards such eccentricity, if political situation were to become more pressing? Or, as is rather fashionable in multiple today’s situations, someone might as well recommend bringing in international humanitarian law and proclaim an ongoing or semi-perpetual war between Iran and the West. This would certainly gratify some political and ideological tastes and, who knows, not even ICRC might have an objection.