The war on Tehran is entirely legal

laims that international lawyers are unanimous that joint military operations against Iran by the US and Israel are illegal are risible.

Contests of legal claims are as old as the idea of law. A unanimous legal view is heard only in a well-sealed echo chamber.

Foreign Minister Penny Wong says she will leave the legality of the war to the US and Israel. But Greens leader, Larissa Waters, asserts the Iran war is unlawful, and we can’t “bomb our way to peace”. Under the Waters doctrine, Germany would still be Nazi territory. The Iranian ideology is every bit as heinous, absolutist and imperialist as the Nazis.

Those who argue that Operation Epic Fury is unlawful point to Article 51 of the UN Charter, which permits a right of self-defence in response to an armed attack. But it’s argued that the US and Israel didn’t face Iranian armed attacks at a threshold that justified their self-defence.

We would argue, however, that existing international law is more than adequate to justify the action against Iran that is taking place. The conflict didn’t just begin on February 28, when Israel and the US engaged in coordinated joint attacks on various sites in Iran. There has been an existing conflict between the US, Israel and Iran for some time. The US and Israeli joint military action is part of a long and ongoing armed conflict in which Iran is aggressor, instigator, funder and coordinator.

The Hamas attack against Israel on October 7, 2023, for example, was strongly backed by Iran. The Rome Statute of the International Criminal Court defines an act of aggression to include sending armed bands, groups, irregulars, or mercenaries by or on behalf of a state to carry out acts of armed force against another state.

Article 51 of the UN Charter describes the “inherent” right of self-defence. This includes the concept of collective self-defence, which brings in the US. That is apart from the attacks that have been directly engaged in by Iran against the US. The right of self-defence includes the ability to act to eliminate a clear pattern of aggression, even if there are pauses between acts. As we noted, Iran has been conducting armed attacks against Israel and other states for many years. This includes Australia, as Penny Wong has acknowledged: we would, therefore, be well within our rights to actively join Operation Epic Fury.

Pre-emptive self-defence is lawful under the UN Charter when it is necessary to respond to a situation, such as Iran’s continuous preparations for and declarations of hostility and commission of covert acts of war. There’s also the legal concept of a “responsibility to protect”: states are required, with the imprimatur of the UN Security Council, to prevent crimes against humanity in other countries, including massacres of Iranian protesters or genocidal nuclear obliteration of Israelis by Iran.

In the Iran war we’ve already seen several clear breaches of international law by Iran. Exhibit A is the Al Minhad air base in the UAE that was struck by an Iranian drone. It is used by Australian and British defence forces. The drone attack was an unprovoked illegal act. Neither the UK nor Australia had engaged in any attack against Iran.

Exhibit B is Iran’s claim to have closed the Straits of Hormuz, through which 20 per cent of global oil ships by tanker. The closure of an international strait to neutral countries is a breach of international law. Exhibit C is Iran conducting indiscriminate missile attacks using cluster munitions to maximise damage when targeting civilian populated areas in Israel and in third-party countries, which are illegal. So far every Israeli casualty from Iranian missile fire has been a civilian.

The only requirement of the self-defence response is that it be proportionate to the threat, and the laws of armed conflict are adhered to. US and Israeli operations have been surgical and highly targeted against military infrastructure, with significant efforts to avoid Iranian civilian casualties. Tragically, on the first day of the war in what appears to be a US airstrike, working with outdated intelligence, the strike unintentionally hit a school close to a major IRGC compound that was hit multiple times in the same raid. Iran showed the world photos of the school. But it pretended that this was the only target. Sinking an Iranian warship in international waters off Sri Lanka was a perfectly lawful strike: the warship was an enemy combatant. It was legal to kill Ayatollah Ali Khamenei as he was commander-in-chief of Iran’s armed forces.

The way to end the aggression of Iran is regime change, as with the Nazis. That makes the precisely targeted actions of the US and Israel entirely proportionate. Claims that international lawyers are unanimous in their views are never true. Group-think within ivory tower staff rooms doesn’t change that. What might be heard within them are just the echoes of academic conformity.

Greg Rose is honorary professor of international law at the University of Wollongong.

Dr Anthony Bergin is an expert associate at the National Security College.

A version of this article appeared in the Australian Financial Review.