It is difficult to frame the US strikes on Iran as ‘collective self defence’ under international law

THE UNITED STATES’S STRIKES ON THE IRANIAN NUCLEAR SITES, including Fordow, Natanz, and Esfahan, have led to major regional escalation in West Asia. According to Trump, “… A full payload of BOMBS was dropped on the primary site, Fordow. All planes are safely on their way home. Congratulations to our great American Warriors.” The objective of the U.S strikes was to thwart Iran’s alleged nuclear enrichment facilities. In response, Iran has called upon the United Nations Security Council (UNSC) to endorse the U.S and Israel as the initiators of the 12-day war. The Iranian foreign minister, Abbas Araghchi, made the request to the UN Secretary-General, Antonio Guterres, and the president of the Security Council, Carolyn Rodrigues-Birkett. U.S. Defence Secretary Pete Hegseth reiterated that- “The president authorised a precision operation to neutralise the threats to our national interest posed by the Iranian nuclear program and the collective self-defence of our troops and our ally Israel.” Ambassador Dorothy Shea, the acting U.S. Representative to the United Nations, remarked, “[T]his operation sought to eliminate a longstanding but rapidly escalating source of global insecurity, and to aid our ally Israel in our inherent right of collective self-defence consistent with the UN Charter.”In the aftermath of the strikes, scholars have written extensively on the legality of the U.S strikes from the standpoint of use of force, individual self-defence and aggression; however, scant attention is paid to the aspect of collective self-defence. In this article, I attempt to reveal the contours and legitimacy of the collective self-defence argument of the U.S, considering the repeated use of the phrase at international forums. .Collective self-defence: A forgotten doctrineThe doctrine of self-defence has emerged as a seminal doctrine in contemporary international law. It has evolved from being an inter-state conception into myriad dimensions like its use against non-state actors, anticipatory self-defence, and peremptory self-defence. Moreover, it gained traction in the Russia-Ukraine conflict, India-Pakistan dispute, Syrian conflict, etc. However, these examples represent one State invoking self-defence against another State, ie, individual self-defence. As James A. Green opines, collective defence is “…the use of military force by one or more states (co-defending State) in response to an external attack that has occurred or is occurring against another state.” Historically, collective self-defence was a continuity of the mutual defence treaty, for example, the 1815 Treaty of Alliance and Friendship drafted in the wake of Napoleon's defeat by the European powers failed to provide the specific contents or contours of collective self-defence. Although today it is an integral part of Article 51 of the UN Charter, it is seldom triggered in the inter-state discourse and thus remains undertheorised. The Nicaragua case (Merits) (1986) confirmed that the requirement of individual self-defence equally applied to collective self-defence in addition to the customary international law prerequisite of ‘request’ from the victim State. .Some insights from the US strikes in Iran: Aggression and the limits of self-defence.As the ICJ has succinctly observed, “[T]here is no rule in customary international law permitting another State to exercise the right of collective self-defence on the basis of its own assessment of the situation” (Para. 195). Interestingly a closer scrutiny of the case reveals that the ICJ fixed a higher yardstick for invoking collective self-defence over individual self-defence. Accordingly, it considered mere supply of arms to the Salvadorian armed opposition by Nicaragua, was insufficient and instead required armed attack by Nicaragua on EL Salvador, as the ICJ noted El Salvador did not ‘request’ the U.S for the exercise of collective self-defence. Judge Jennings in the said case regarded collective self-defence as a novel doctrine and warned against its abuse as the co-defending State(s) may act in its own interest. Therefore as observed in Lauterpacht's edition of Oppenheim's International Law, “… a Member of the United Nations is permitted to have recourse to action in self-defence not only when it is itself the object of armed attack, but also when such attack is directed against any other State or States whose safety and independence are deemed vital to the safety and independence of the State thus resisting or participating in forcible resistance to the aggressor”U.S strikes and collective self-defence standardsThe strikes by the U.S, in addition to targeting nuclear facilities, were also carried out in the words of U.S Ambassador to the United Nations Dorothy Shea, “…to aid our ally Israel in our inherent right of collective self-defence consistent with the UN Charter.” Further, she points out that the Iranian government has called for “Death to America” and “Death to Israel”; the Ambassador made constant reference to the plight of Israel because of the Iranian attack with hundreds of ballistic missiles against Israel. Hence, it is conspicuous that the U.S attacks are a combination of both individual and collective self-defence. Prof. Donald Rothwell, in his recent post for ‘The Conversation’, regards the U.S strikes as a classic case of collective self-defence. However, he fails to go beyond this categorisation. First, the initial attacks were launched by Israel targeting the nuclear programme, military leadership and scientists; the attacks, as rightly pointed out by Prof. Marko Milanovic, were aimed at deflecting any future armed attack from Iran. It is true that non-state actors like the Houthis have attacked Israel, but the present strikes are solely to prevent Iran from future attacks. Thus, Israel becomes an aggressor and not a victim of an armed attack to set off collective self-defence. .Second, assuming Israel is the victim State, there is a clear absence of ‘request’. It should be noted that in a televised speech by Netanyahu thanked President Trump for acting to deny the world’s most dangerous regime, the most dangerous weapon. U.S. President Trump has firmly asserted in Truth Social that, “The US had nothing to do with the attack on Iran, tonight…” hence, it is evident that Trump acted independent of Israel’s operation Rising Lion, albeit the objective was to obliterate the nuclear sites. Third, the threshold for proportionality and necessity is not fulfilled to exercise collective self-defence. The ICJ in Legality of the Threat or Use of Nuclear Weapons (1986) highlighted the customary international law nature of these criteria. In the Nicaragua Case (Merits), it rejected the claim of both necessity and proportionality with respect to ‘the aid received by the Salvadorian armed opposition from Nicaragua’ (para. 237) and the covert activities directed against Nicaragua, thereby holding that the U.S violated the principle of use of force. In the Oil Platforms Case (2003), despite the U.S submitting extensive evidence indicating the Iranian oil platforms were being used as a military base to justify necessity and proportionality, this was rejected as it was not proportional to the initial attacks on USS Samuel B. Roberts and Sea Isle City by the U.S. While it is true that there are several apprehensions regarding Iran's motive to develop nuclear technology, this cannot be a ground for triggering collective self-defence, as evident in the Oil Platform case, even prior armed attacks were not sufficient for successfully arguing collective self-defence. ConclusionThe high threshold for activating collective self-defence is justified because it brings to the equation a third State and hence is more prone to abuse. Moreover, the ‘request’ criteria make it distinct from individual self-defence under customary international law. It is unclear whether Netanyahu requested the U.S to attack Iranian nuclear installations, as Trump appears to have acted on his own intuition. Moreover, the existing jurisprudence leaves questions like to whom the request needs to be addressed or the timing of the request. As I have argued, the U.S claim of collective self-defence cannot be justified legally because Israel is not a victim of armed attack. Instead, it carried out the attacks in self-defence. Also the language of the request (if any) is ambiguous, and the requirement of proportionality and necessity are not met.

It is difficult to frame the US strikes on Iran as ‘collective self defence’ under international law

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