Impending Iranian attack on Israel: "No right to reta­lia­tion in inter­na­tional law"

Hier geht es zur deutschen Version des Interviews.

LTO: After the deadly attack on Hamas leader Ismail Haniyeh in Tehran, Iran has announced "retaliation". Now it seems that an Iranian attack on Israel is imminent. Is this permissible under international law? 

Prof Dr Matthias Goldmann: A retaliatory strike by Iran would constitute a wrongful use of force in violation of Article 2(4) of the United Nations Charter (UN Charter). The only possible justification would be the right of self-defence under Article 51 of the UN Charter, which requires an unlawful armed attack by Israel on Iran. In my view, however, this is not the case here, which is why a potential Iranian counterattack would be contrary to international law.

For what reason? Can the targeted killing of the Hamas foreign chief in Iran not be considered an armed attack?

Yes, the killing of Ismail Haniyeh was an unlawful armed attack for various reasons. The attack on Iranian territory violates the principle of non-intervention under customary international law. Haniyeh was not a representative of Iran, but of Hamas, even if there are of course close links. At the same time, the targeted killing by the air strike also constitutes a wrongful use of force in terms of its nature and extent. 

In my view, the killing also violates the rules of international humanitarian law. In an armed conflict, only combatants and military objects may be attacked; all necessary steps must be taken to spare, as far as possible, civilians.

However, one cannot conclude that Haniyeh was a combatant simply because he belongs to Hamas. The decisive question here is whether someone has military command authority. Even if the structures of Hamas are opaque, Haniyeh was probably only the "Hamas mouthpiece" and senior leader of the movement's political bureau and had no executive authority to command combatant forces. As long as it has not been objectively established that someone is a combatant, he must not be attacked. That is why I believe this attack was unlawful. 

The armed attack has already been concluded, which is why Iran is not allowed to attack Israel. International law does not recognize a right to retaliation.

"Right of self-defence must be limited to imminent situations"

Could it not be argued here that there is a kind of "permanent danger" due to the current situation and the ongoing war?

There are indeed voices that understand the prohibition of the use of force differently and define the right of self-defence more broadly. They take the view that the situation of self-defence is perpetuated in such a latent conflict characterized by a constant back and forth, because you have to defend yourself somehow.

In my view, this view contradicts Article 51 of the UN Charter, which states that the UN Security Council's actions have priority. 

Extending the right of self-defence entails the risk of escalation – in such a way that at some point it will no longer be possible to tell permissible self-defence from unlawful retaliation. That is why the right of self-defence must be limited to imminent situations. And this was the case here with the killing of the Hamas foreign leader. Although it is possible that Israel will kill Hamas or Hezbollah officials again, this is not to be expected immediately. And pre-emptive self-defence is unlawful.

However, there are also those who believe that the targeted killing of terrorists is lawful.

Some experts in international law consider such actions to be permissible under certain circumstances, even on foreign territory. In some cases, they see no wrongful use of force because it is not a military operation, but rather a police action against a terrorist. Or they argue that it is a permissible act of self-defence against a non-state actor. However, targeted killings on the territory of another state – as in this case – are in clear breach of the principle of state sovereignty.

"Israel has a right to defend itself – limited by principles of necessity and proportionality"

In your view, Iran cannot invoke its right of self-defence, so that the impending attack would be unlawful. Is Israel then allowed to defend itself against the attack?

If you take the view that I am advocating here, Israel would have the right to defend itself – limited by the principles of necessity and proportionality, of course. If Iran is launching an armed attack, Israel is therefore allowed to defend itself against it. Which measures are permissible depends, of course, on the nature and extent of the Iranian attack.

However, if – as was the case last time – it is a short attack, there is no right of self-defence for an Israeli counterattack due to the lack of an "actual attack". Once the attack is over, Israel would also have to lay down its arms?

Yes, the right of self-defence only exists as long as the attack continues. How long that is, of course, depends on the individual case. The more intensive the attack, the longer the right of self-defence exists. If Iran fires rockets at Israel, to assume that the attack is over requires a clear signal.

While Russia wants to supply Iran with weapons, the USA has vowed Israel "ironclad support". Would such military support be lawful?

In principle, so-called collective self-defence is lawful. Other states can assist the state in defending itself. Of course, this support must be limited to defence against the attack in question. In other words, we must not go any further than self-defence requires.

"Deployment of the Bundeswehr not useful"

Israel's security is part of Germany's reason of state. In Germany, it is discussed whether the Armed Forces (Bundeswehr) should be deployed to protect Israel, and opinions differ widely. Would such a deployment be permissible?

The Basic Law (Grundgesetz, GG) contains the "principle of the Constitution’s openness to international law". Article 87a (2) of the Basic Law stipulates that, apart from defence, the Armed Forces may be employed only to the extent expressly permitted by this Basic Law. Such a provision can be found in Art. 24 (2) GG. According to this provision, the Federal Government "may enter into a system of mutual collective security". This means that – in addition to a mandate from the German Bundestag – either a resolution of the UN Security Council or a NATO resolution would be required. Otherwise, Germany would not be allowed to take part in such a mission. Some scholars argue that the reference to “defence” in Art. 87a (2) of the Basic Law would also include participating in the self-defence of a third state. However, at the time this provision was inserted into the constitution, it was inconceivable that Germany with its army of conscripts would participate in self-defence operations outside of a NATO context. 

Do you think it is useful to deploy the Bundeswehr?

No. First of all, Israel itself has repeatedly violated the ban on the use of force in recent weeks. We should therefore also consider diplomatically whether we want to contribute to further escalation. And we should ask ourselves how we can ensure that it remains an act of defence and that there is no retaliation. It is not yet possible to say what Iran's retaliation might look like. The situation could also be over before the Bundeswehr deploys. Then there will no longer be a defence situation.

Prof Goldmann, thanks for your time.

 

Prof Dr Matthias Goldmann holds the Chair of International Law at EBS University Wiesbaden and is a senior research fellow at the Max Planck Institute for Comparative Public Law and International Law.

This text is a translated and slightly revised version of the interview published in German on 6 August 2024.