International Law and the Legality of Pre-emptive Military Strikes:A Critical Analysis of the Recent US–Iran Conflict

Abstract

The pre-emptive military attack issue in modern international law continues to be the most controversial and far reaching disputable branch in international relations and the legal community. Against this background, the paper will critically address the legal provisions surrounding the use of force among the states, especially focusing on the current tensions and confrontations between the United States and the Islamic republic of Iran, using the armed forces of the states. This paper challenges the possibility of the concept of anticipatory self-defense to give a valid legal justification to a pre-emptive military action by relying on the United Nations Charter, customary international law, the Caroline doctrine, and the developing practice of states. Basing on the United Nations Charter, the customary international law, the Caroline doctrine and emerging state practice, the paper goes ahead to express the interrogative of the legal legitimacy of anticipatory self-defense. Specific attention is paid to the persisting tensions and military conflicts between the Islamic Republic of Iran and the United States which give an excellent basis on implementing these doctrines. This discussion highlights how the interaction between state practice and normative framework that is entrenched in the international legal texts influence the legal debate. The attempted assassination of the Iranian Major General Qasem Soleimani in January 2020 can be used as the main case study because it provides a possibility to conduct a strict assessment of the opposing legal arguments by the states and the reaction of the international community on it. Through the analysis of the factual context of the operation, as well as by looking at the applicable jurisprudence, the paper shows how the US has attempted to conceptualize its action as an act of anticipatory self-defense, and how this has been challenged by other states. The review indicates that there is a disturbing disconnect between the firm no-fly zone regulations within the UN Charter and the broad-brush dogma that is being used more and more by the influential countries in justification of unilateral military intervention. This detachment brings out a growing divide that is threatening to undermine the principles of the international legal order since states take advantage of unclear understandings of self-defense to implement pre-emptive attacks. Concluding the paper, it is possible to state that the international law provides limited opportunities to resort to self-defense, but these opportunities have been pushed to the extremes and the borders of legitimate use of self-defense become serious dangers to the pillars of the international legal order. This is why it is critical to conduct a reassessment of the doctrines and renew the prohibitive approach of the Charter to maintain the rule-based system that promotes global peace and security.