Weapons of Legal Justification: The Pretext of Preemptive Self-Defence in the Israeli Strikes Against Iran(مقاله علمی وزارت علوم)
منبع:
حقوقی بین المللی سال ۴۳ بهار ۱۴۰۵ شماره ۸۱
303 - 334
حوزههای تخصصی:
This article critically evaluates the legality of pre-emptive self-defence under contemporary international law, focusing specifically on Israel’s June 2025 airstrikes against Iran. By analyzing the legal framework established by Articles 2(4) and 51 of the UN Charter, the central argument contends that pre-emptive force remains unlawful absent an actual armed attack. However, an incremental accumulation of scholarships and national military manuals, primarily limited to certain western States, has fostered a self-referential cycle. This cycle projects the misleading appearance of an emerging customary norm authorizing pre-emptive or preventive use of force. This doctrinal ‘snowball effect’, whereby successive publications uncritically cite and amplify predecessors, generates an artificial sense of legal evolution. Nevertheless, rigorous analysis drawing on doctrine, International Court of Justice jurisprudence, general practice of States and even the Caroline criteria itself, often invoked by States justifying pre-emptive self-defence, reveals a clear distinction: lawful self-defence is strictly confined by necessity and proportionality, while anticipatory or preventive self-defence falls outside accepted legal boundaries. The article concludes that Israel’s justification, based on non-imminent and speculative threats, fails to meet even the lower threshold of the Caroline doctrine for pre-emptory self-defence – let alone the stricter contemporary jus ad bellum standards under the UN Charter. Recognizing a unilateral right to pre-emption would gravely undermine the jus cogens character of Article 2(4), erode the UN’s collective security system, and incentivize destabilizing unilateral initiatives and resorts to force. Consequently, absent Security Council authorization or a manifest armed attack, pre-emptive self-defence remains fundamentally incompatible with the current international legal order.