Authors: Abhinav Mehrotra and Dr. Biswanath Gupta*
For the last few months, the situation in the Middle East has worsened due to the sudden conflict that started between Israel and Gaza. Due to this long conflict, the political situation in the Middle East is worsening day by day. In an expected line, the war is spreading in different parts of the Middle East. Jordon, Iran, and a few other countries. This war is slowly turning into a major armed conflict in the region. Iran is using their proxies to launch a counter-attack on the US and Israel. These proxies include the Hezbollah and other anti-Israel militia groups. The Hezbollah de facto controls the Lebanese government. As a result, Iranian-backed militant groups have attacked Israeli and U.S. targets across the Middle East in a show of support for Palestinians. While Iran has flexed its muscles in the region since the war erupted in October, Tehran has avoided taking direct military action against Israel and its key ally, the United States. Experts say the Islamic Republic sees a direct war against its archfoes as a threat to its fragile domestic stability and its survival.
In response, the U.S. military’s Central Command confirmed in a statement that it had conducted a unilateral strike in Iraq in response to the attacks on U.S. service members, killing a Kata’ib Hezbollah commander responsible for directly planning and participating in attacks on U.S. forces in the region.The militias and the Houthis all characterize their attacks as support for the Palestinian people amid Israel’s devastating war with Hamas in the Gaza Strip, which shows no signs of abating anytime soon.
Both US and Iran are using force because of the war in Gaza. Therefore, the question that arises whether a third country can use force to help its ally or not in a situation when the ally did not ask for support, whether in such case the use of force is justified in international law or not.
Under International Law, Article 2(4) of the UN Charter deals with the use of force. It prohibits the threat or use of force and calls on all Members to respect the sovereignty, territorial integrity, and political independence of other States. The only situation in which the use of force is justified under the UN Charter is under Article 51 under Chapter VII which deals with Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression. Through Article 51, the inherent right of individual or collective self-defence in case of an armed attack is safeguarded until the Security Council has taken measures necessary to maintain international peace and security.
However, the question arises when a state is not directly involved in the use of force but aids or assists the commission of an internationally wrongful act , this transition from complicity in use of force to joint commission of use of force is a matter falling within the realm of primary norms of Jus Contra Bellum which means the law against war . In the past, in the case of Nicaragua (The Republic of Nicaragua v. The United States of America) where the International Court of Justice held that the U.S. had violated international law by supporting the Contras in their rebellion against the Sandinistas and by mining Nicaragua’s harbors. The point that the ICJ emphasized was that the assistance to rebels in the form of weapons or logistical support was intentional and contributes towards carrying out the direct violence that ensues.
In this context, the support provided by Iran to the anti Israel militias specifically the Hezbollah meets the criteria of having aided or assistance in the commission of an internationally wrongful act under Article 16 of Draft Articles on State Responsibility. Under Article 16, State which aids or assists another State in the commission of an internationally wrongful act is internationally responsible for doing so if that State does so with knowledge of the circumstances of the internationally wrongful act; and the act would be internationally wrongful if committed by that State.
Going forward, the need of the hour is to prosecute Iran under International Law as was done in the Nicaragua Case .
*Dr. Biswanath Gupta is an Associate Professor at O.P. Jindal Global University. His research interests include International Law, Air and Space Law.
