On Friday, Israel militarily struck Iran in “retaliation” for Iran’s massive ballistic missile attack that occurred on October 1, and which itself was conducted in “retaliation” against a previous Israeli action on Iranian territory. The latter was the Israeli targeting of Hamas leader Ismail Haniyeh near Tehran – itself part of Israel’s response to the October 7 attacks. Hence, the chain of responses and counter-responses continues ad infinitum.
The details of Friday’s attack will surely trickle out in the upcoming days, although at least immediately after, the Iranian government seems to be largely downplaying its significance, perhaps signaling a potential end to this round (but only potentially as hardliners have called for a response). What we do know is that Israel’s air force reportedly attacked 20 military sites in three regions of Iran as well as air defense systems in Syria. According to some reports, Israel warned Iran on Friday in advance of the attack and the targets were limited to military sites that were involved in Iran’s most recent ballistic missile strike on Israel – further signs that this round may end soon. As readers of Just Security probably recall, this is in fact the second round of direct tit-for-tat attacks between Israel and Iran, after the previous round, in April, ended with a somewhat symbolic Israeli response on April 19th. The United States, in its response to Friday’s attack, called it a “proportionate” act of “self-defense,” while others, such as quite notably Saudi Arabia, condemned it as an unlawful “violation of [Iran’s] sovereignty.”
During the previous round of retaliation, I answered a few questions for Just Security about the international law on the use of force as it applied to the situation. In general, that analysis remains relevant almost verbatim today. However, Friday’s attacks accentuate some of the problems that I identified back in April.
The legal point of departure then, as now, is that international law allows force in self-defense, and strictly prohibits punitive force (“reprisals”) – meaning, force as means of retribution, revenge, or for the sake of deterrence absent an ongoing or imminent threat. As I highlighted in April, the tricky part is that if we accept the lawfulness of preemptive self-defense against an imminent threat, it’s rather easy for States to argue that a previous attack “proves” the imminent threat of further attacks, and in this way to justify as “defensive” attacks that take place after the previous one was completed. In other words, turning what would otherwise seem to us as punitive into defensive actions and in line with the UN Charter. In fact, the IDF spokesperson, in his statement following Friday’s attack alluded to this logic, when he claimed that the attacks were “thwarting immediate threats” to Israel.
However, the same statement referred to sending a message that those who “threaten the State of Israel … will pay a heavy price,” echoing similar declarations by Netanyahu in the past that Iran “will pay” for its attacks. This exemplifies how the doctrine of preemptive self-defense facilitates the intermingling of defensive and punitive language, which increasingly casts doubt on the effectiveness of the legal prohibition against reprisals. Defense and punishment are also intermingled in the concept of “deterrence,” which the United States invoked in support of Israel’s attack (a term used by the United States also when justifying its own forcible responses in the region including in letters to the UN Security Council).
The current round also casts light on Israel’s and Iran’s opposing political strategies in relation to the current conflict in general, which have significant legal implications when assessing Friday’s attacks. As I wrote back in April, Israel’s political strategy is to lump together Iran and its affiliated non-State actors as one unitary body, against which Israel is involved in a regional conflict (we can call this the conflation strategy). The legal implication of the conflation strategy is that Israel does not seem to view attacks within this framework as reprisals under the jus ad bellum, since they are part of an ongoing conflict with a unitary group of actors. In other words, these are simply attacks during war, rather than forcible reprisals which only make sense outside of an active war.
Israel’s response in April was never formally admitted – and thus whether this was actually its logic was mostly my speculation – but now the IDF’s statement concerning Friday’s attack reveals that this is indeed the case. In its justification of the strikes, the Israeli government claimed that “[t]he regime in Iran and its proxies in the region have been relentlessly attacking Israel since October 7th—on seven fronts—including direct attacks from Iranian soil.” The upshot of this reasoning is that Friday’s strike is not a response to an isolated attack directly from Iran that took place on October 1, but is part of an ongoing exchange as part of the broader conflict. Of course, even if we do accept this reasoning, at least in my view, this does not exclude the evaluation of these attacks under other constraints of jus ad bellum, since this body of law continues to apply even during active war.
Iran’s political strategy, conversely, is to admit that it supports the “axis of resistance,” yet to maintain that each of the actors comprising it enjoys sufficient autonomy to allow Iran plausible deniability – and in the language of international law, to deny legal attribution for their actions. Politically, the separation strategy of course helps Iran to distance itself from the same type of imperialism it claims to oppose. Indeed, this clash of strategies was evident earlier this month, when a Hezbollah drone launched from Lebanon struck Benjamin’s Netanyahu’s private residence. While Netanyahu and other Israeli officials blamed Iran for the attack, Iran was adamant that it was not involved and the attack was “carried out by Hezbollah.” Legally, the separation strategy makes it easier for Iran to claim that Israel’s attacks against it would be unlawful reprisals; yet, paradoxically, it also complicates Iran’s own ability to “justify” its retaliations against Israel as part of an ongoing conflict. In any case, complicating the separation strategy is when Iran occasionally proclaims– at least rhetorically– that it will retaliate against Israel for Israeli strikes against Hezbollah leaders who have been killed outside of Iranian territory.
That said, this current round exemplifies the problematics of applying the legal concept of reprisals in the context of lingering conflicts, involving multiple actors and proxies, in which much of the operational logic is based on tit-for-tat dynamics to begin with (as was the conflict between Israel and Hezbollah until early October). Nonetheless, this is certainly not a call to abandon the legal assessment of such conflicts under jus ad bellum. Rather, it is a call for a more sophisticated application and development of doctrines such as necessity, proportionality – and the prohibition on reprisals – during such conflicts as well.
At the end of the day, when stripping down all the legal complexities, we remain with two military powers, one nuclear and the other near nuclear, attacking and counter-attacking each other with absolutely no plausible endgame, with no political plan, in the backdrop of catastrophic suffering across the region. The escalatory dynamics and the potential political opportunism of these attacks cut through all legal analysis, and, however we analyze them, they represent a massive failure of international law and politics.