It has been reported recently that discussions have taken place between the United States (US) and the United Kingdom (UK) concerning the use of British military bases in Cyprus, the Ascension Island and Diego Garcia in the event of possible military action against Iran. In the past, these particular military bases were used by the US to conduct long-range missions during the invasion of Iraq. However, a spokesperson for Downing Street has refused to comment on reports that the British Government has declined a request by the US for its armed forces to use these strategic military bases.

However, she did state that the issue of the military bases had been discussed by both parties:

Contingency planning is something which we do as a matter of routine … Obviously we are working closely, for example with the United States, as we have done in the past, regarding the use of UK bases. We routinely speak to our counterparts in the United States. We don’t get into details of those discussions, but we have in the past co-operated on the use of UK bases.

In declining the request of the US, the British Governmen reportedly relied on legal advice drafted by the Attorney General, Dominic Grieve, who concluded that pre-emptive military action against Iran would be unlawful under International Law on the grounds that Iran, who has always maintained that it does not intend to develop a nuclear weapon, does not pose an imminent threat.

 

The Attorney General’s conclusion that a pre-emptive armed attack by the US on Iran would be unlawful under International Law is also in keeping with a literal interpretation of the UN Charter. Article 2(4) of the UN Charter as supplemented by Article 51 provides strict limits on the state’s right to use force. In particular, Article 2(4) affirms the fundamental principle underlying the UN Charter that disputes between states must be resolved by peaceful means:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

There is no ambiguity in Article 2(4) as it clearly provides that the threat or use of force by one state against another state is in direct contravention of the fundamental principle of international peace and security underlying the UN Charter. Therefore, pre-emptive military action by the US against Iran is arguably prohibited under International Law.

 

It is also important to note that the legal advice of the Attorney General is in line with the position previously adopted by the British Government. For instance, in 2002, the then Attorney General, Lord Goldsmith, advised the Prime Minister that “[t]he development of … [weapons of mass destruction] is not in itself sufficient to indicate such imminence.” Therefore, the argument can be made that International Law only allows the use of force in the event of an actual or imminent armed attack. However, it remains unclear what constitutes an “imminent” armed attack. The statement of Lord Goldsmith in Parliament in 2004 has done very little to alleviate this ambiguity:

[I]nternational law permits the use of force in self-defence against an imminent attack but does not authorise the use of force to mount a pre emptive strike against a threat that is more remote. However, those rules must be applied in the context of the particular facts of each case … The concept of what constitutes an ‘imminent’ armed attack will develop to meet new circumstances and new threats.

It would therefore seem that there must be evidence to suggest that an armed attack by Iran against the US is imminent. However, the definition of the term “imminent” with regard to armed attacks remains unclear. Would an armed attack be classified as “imminent” if Iran expressed a clear intention to carry out such an attack? Or would the use of force by the US only be permitted if Iran had taken concrete steps towards carrying out an armed attack? Without clear criteria of what constitutes an “imminent armed attack” states could potentially be left vulnerable to attack from states and other entities who interpret the concept too widely.

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Written by Anna Marie Brennan

Anna Marie Brennan is a PhD Candidate in International Criminal Law at University College College and an IRC Government of Ireland Scholar. She was previously a visiting scholar at Harvard Law School and the University of Cambridge and has worked on the defence team of Radovan Karadzic at the International Criminal Tribunal for the Former Yugoslavia..