The debate about when and if Israel should bomb Iran’s nuclear facilities from a national security point of view is constantly in the news. But on what grounds can Israel attack under international law? According to Prof. Yuval Shany, this is a difficult question.

In a recent interview with The Jerusalem Post, the new Hebrew University Law School dean and leading international law expert analyzed a number of dilemmas facing Israel in the realms of international law and security, including in potential future conflicts with Iran and Egypt.

Even when it comes to nuclear weapons, international law would appear only to permit an attack on Iran when an armed attack from Iran is at least imminent, said Shany.

The UN Security Council is supposed to be responsible for security issues that are short of an armed attack, he explained, and “states are not supposed to take things into their own hands” preemptively unless an attack is imminent.

On the other hand, he commented, the Security Council “has failed to perform this duty in many cases” – and in the case of Iran in particular, as none of the international efforts to date have managed to stop what many believe is Iran’s clandestine push for nuclear weapons.

Also, the practice of nations, or what nations do regardless of what conventions actually say – something that often comes up in determining questions of international law – has shown that both Israel and other nations have taken matters of their security into their own hands even prior to an imminent attack when they believed it was necessary, said Shany.

Click here for full Jpost coverage of the Iranian threat

While this past practice does not necessarily make such actions legal – especially since some of the actions have been criticized – as the actions have not brought any real punitive action from the UN Security Council beyond some condemnations, the HU law expert implied that it was hard to say these actions were far beyond the pale.

At the end of the day, Shany, choosing his words carefully, said that although as a lawyer he could not currently say that a preemptive strike on Iran would be lawful, “as someone who lives here,” he could not say that under all circumstances the leadership must refrain from seriously considering such action.

He also discussed seemingly more theoretical conflict scenarios regarding Egypt – theoretical in the sense that both governments, for the moment, appear to be trying to maintain at the very least a cold peace both in public statements and in action.

However, news reports have stated that the IDF has made contingency plans in the event that any conflict with Egypt escalates. In an escalating situation of conflict, how would international law apply? According to Shany, nothing short of an imminent attack by Egyptian armed forces – a seemingly remote possibility as of now – would justify an attack by the IDF.

A few voices have claimed that the IDF could take military action in the Sinai based on Egyptian violations of the peace treaty – namely sending in heavy weaponry prohibited by the treaty without notifying Israel.

But the government appears pleased that the Egyptians are confronting terrorist elements in the Sinai, and Shany says that nothing in the treaty gives Israel the right to attack Egyptian forces for those kinds of violations.

Israel can file a complaint with Egypt, the multinational forces supervising the treaty, or the UN Security Council, he said. But as none of Egypt’s forces have come remotely close to attacking Israel, and Egypt says it is responding to a need (which Israel at least generally encourages) to confront terrorists with heavy weaponry, this violation is more of symbolic value than anything else.

The fact that the treaty may have been violated “does not grant Israel an extra right to attack under international law where it would not normally have such a right,” he added.

On the other hand, he noted that it was important to protest violations so Egypt could not make any legal claims later that Israel had acquiesced to a new status quo by accepting the violations in practice.

Shany also briefly addressed the question of “hot pursuit,” or to what extent the IDF can respond to crossborder attacks from Egypt by returning fire across the border and, even if only briefly, pursuing the attackers into the part of Egyptian territory right next to the border.

The conventional military argument justifying hot pursuit is that if the state from which the attackers came cannot or is not stopping the attacks or apprehending the attackers, then a targeted and temporary pursuit into the neighboring state should be permitted in order to neutralize the attackers. Otherwise, the argument goes, the attackers are being rewarded with immunity for attacking from another country.

However, Shany said that the right to hot pursuit was severely limited.

“Unless it is in immediate self-defense,” he explained, IDF soldiers can’t shoot into foreign territory, much less put their boots on foreign soil, under international law.

There was an implication that there could be some unusual “strained cases” in which immediate self-defense might justify a very limited hot-pursuit right, but Shany did not identify any of the recent attacks on the border as meeting those criteria.

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