Retaliation is not self-defense. Why does this matter? - opinion

Following the Israel strikes on Iran on October 26, many media outlets reported it as a retaliation. In the following days, it was reported that the Iranian foreign minister stated that Iran is entitled to the right of self-defense. 

This kind of narrative not only deprives international law of its principles and content but also strengthens the anti-Israel bias. From a legal point of view, there is a crucial difference between the two concepts – the latter indicates a lawful response, and the former means a violation of international law. In fact, the correct description of the events is the opposite: Israel responded legally by using force against Iran – due to an illegal armed attack against it – in accordance with the rules of Article 51 of the UN Charter.

While the prohibition of the use of force is one of the principles of the charter, it allows only a single exception: the natural right of self-defense. Chapter VII, which deals with threats and breaches of international peace and security, regulates the right of self-defense in Article 51. “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations until the Security Council has taken measures necessary to maintain international peace and security.”

This means that the main requirement for the granting of the right to self-defense is the occurrence of an armed attack – as indeed happened on April 13/14, the night of the first Iranian attack, and on October 1, with the launch of 201 ballistic missiles against Israel. On the other hand, when an Iranian consulate was targeted by an Israeli airstrike in Damascus on April 1, it is doubtful whether this could give rise to any right of self-defense. Instead, Iran could pursue a peaceful settlement of conflicts by resorting to the Vienna Diplomatic and Consular Conventions.

EVEN THOUGH Iran and Israel do not maintain diplomatic relations, both are member states that are parties to these conventions. The targeting of Hezbollah leader Hassan Nasrallah, in Lebanon, does not constitute a justification for the use of the right to self-defense; neither does the assassination of Hamas leader Ismail Haniyeh, for which Israel did not take responsibility, and regarding which no investigation was conducted – and it was reportedly carried out by internal elements and not by an armed attack launched from outside Iran.

The disproportionate responses of Iran against Israel in April and October were retaliation, meaning illegal use of force, which in turn gave rise to Israel’s right to self-defense. The idea of retaliation is inconsistent with the inherent right to use-of-force, in response to an armed attack. It is a punitive term related to revenge, which was the exact word Iran used repeatedly, and is prohibited by international law.

Further, the Iranian missile attacks constitute a classic (and rare) case of self-defense in response, when it is preceded by the direct use of force. This is unlike the war on terror, in which it is difficult to create a direct link between a terrorist organization and the supporting state associated with it, where the right to self-defense becomes more complex to justify and more difficult to prove.

In the case of Iran and Israel, there are two states that can be held accountable for their actions. There is no need to question whether there may be active terrorism support – which falls into the category of indirect use of force, as in the case of Iran and the Houthis – or passive terrorism support, which refers to failure of the duty of due diligence, as in the case of al-Qaeda and Afghanistan.

What does the law say about self-defense?

THE LAW refers to self-defense even against an armed attack that has not yet been committed, if it can be proven that such an attack is about to occur; and this while distinguishing between several modalities of self-defense according to the degree of concreteness of the preparation for the attack. These controversial types include preventive self-defense, which occurs even before an attack is carried out: for example against infrastructures, such as weapons factories, preemptive self-defense, which occurs close to a concrete attack – as Israel did in the 1967 war – and anticipatory self-defense which occurs right at the moment of the attack: for example against missile launchers and launch units. Interceptive self-defense differs from the anticipatory kind, meaning that the armed attack is already underway – then its target may be the projectiles that have already been launched.

However, when the armed attack has already taken place, there is no dispute regarding the right of the attacked country to self-defense. The failure to distinguish retaliation from self-defense means blurring the line between who is the aggressor and who is the victim. It may have pervasive effects, benefiting the axis-of-resistance narrative. In addition, Iran has been constantly resorting to the language of international law in a manipulative manner.

Israel, in turn, tends to ignore these kinds of arguments, which are indeed a misuse of the law. Yet, the cynical Iranian attempt to invert the rules of the UN Charter impacts global public opinion. No matter how absurd the Iranian arguments are, Israel shall be less apathetic. To claim retaliation or self-defense does make a lot of difference, even intuitively, which makes the arena of international law another front to fight on.

The writer is a legal consultant on strategic international advocacy. She is a former senior lecturer on international law in Brazil and a Zvi Meitar Center for Advanced Legal Studies fellow researcher at Tel Aviv University.