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.
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.