‘If the law stops us waging war, maybe the law is wrong?’

International law treats war as acceptable only when every other option is exhausted. Launching airstrikes while negotiations were still ongoing was bad faith, and disastrous for international relations.

Few experts consider the war launched by the US and Israel against Iran to be legal. Without the approval of the United Nations Security Council – which was not sought – only self-defence could have justified such a sudden and massive use of force.

In spite of Israel’s decades-long efforts, ‘preventative self-defence’ is not recognised in international law. Some experts in international law have tried to promote a new concept – ‘pre-emptive’ military action in response to an ‘imminent threat’ that could only be addressed by military means. But, subtle semantic manoeuvres aside, the law is the law: in the absence of an imminent and unstoppable existential threat leaving no solution other than ‘anticipatory’ war, the use of force is strictly prohibited. Olivier Corten, author of a seminal work on the laws of armed conflict and professor at the Free University of Brussels, points out that since 1945 treaties and judicial decisions have consistently upheld a strict definition of self-defence as a response to armed aggression. Unleashing airstrikes on Iran in the midst of diplomatic negotiations shows the bad faith of those who claim that the war has a legitimate legal basis.

But maybe the law is wrong? This is the position taken by Denys de Béchillon, a law professor at the University of Pau, who is troubled by a ‘legal idealism’ that denies ‘the complexity of reality’ and is blind to ‘hard facts’.

Béchillon appeals instead to morality: ‘Can we really limit ourselves to [the law], as many commentators do, and be satisfied with that one lens? Imply by default that something is wrong because it’s illegal, and indeed condemn an armed intervention, with no other process, on the same grounds? I don’t think so. This would imply that something is wrong because it is illegal, and might lead to a reflexive condemnation of armed intervention on the same grounds.

‘To put it simply, I fear that this is an absolutist stance that will prove fragile (…)

Full article: 1 395 words.

(2) Olivier Corten, The Law against War: The Prohibition on the Use of Force in Contemporary International Law, Hart, Oxford, 2023.

(4) Winston S Churchill, My Early Life, London, Odhams Press, 1958.