In turn, Israel was not exercising self-defence against Iran in the initial consulate strike because Iran’s armed forces were not then directly attacking Israel. Israel did not provide any legal justification for its strike or report it to the Security Council, as required by the UN Charter.
There is also a right of self-defence against a foreign country that “sends” a non-state armed group to attack, meaning that the foreign state directs or controls those attacks. While Iran supports Hezbollah, Iran does not typically control individual Hezbollah operations. Hezbollah largely calls its own shots. This is not enough to permit Israel to attack Iran itself.
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Of course, all countries, including Syria and Iran, have a duty to refrain from supporting terrorist acts against civilians and to prevent the use of their territories for terrorism. To prevent dangerous escalation like that of the past month, international law promotes solutions other than crudely bombing state sponsors of terrorism, including Security Council action, sanctions, criminal co-operation, international adjudication, and diplomacy. In part, this is because bombing prematurely, when there is no actual attack, is a recipe for unpredictable escalation.
Israel’s consulate attack was not only a prohibited use of force against Iran, but also against Syria, on whose territory the force was used. It is also part of a larger pattern of undeclared extrajudicial executions by Israel in its own war on terror. In recent years, Israel has conducted hundreds of secret, deterrent strikes in Syria against Hezbollah and Iranian targets, without reporting any of them as legitimate self-defence.
Israeli officials responsible for the consulate attack, which contained the Iranian ambassador’s residence, may also have committed crimes under a 1971 international treaty to protect diplomats. It is an offence to violently attack the official premises or private accommodation of a diplomat where it is likely to endanger them. Iran, Israel and Syria are all parties to the treaty and all have criminal jurisdiction over such offences. Military attacks on sacrosanct diplomatic premises are a shocking new low in the disregard of international law.
This latest round of violence was predictably fuelled by decades of impunity for state violations of a most fundamental global rule – the prohibition on the use of force. The rule was adopted in 1945 after the catastrophe of World War II, which killed 80 million people, precisely to avoid the tit-for-tat ignition of uncontrollable conflagrations.
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To do its good work, the law has to be taken seriously and not applied selectively and based on political double standards. Israel and Iran are both aggressor states, both are violating the UN Charter, and both are betraying the peaceful aspirations of humanity.
Both countries should be met with the full force of international law. The Security Council must effectively respond without irresponsible vetoes blocking action. Countries such as Australia should unilaterally impose sanctions on the leaders of both countries, to isolate and stigmatise them and to compel them to recommit to law and peace.
Ben Saul is Challis Chair of International Law at The University of Sydney and the United Nations Special Rapporteur on human rights and counter-terrorism.
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