Despite what many pundits assert, even if it were established through irrefutable evidence that Iran was indeed behind the foiled plot to assassinate the Saudi’s ambassador to Washington, International law would still not grant the U.S or Saudi Arabia a right to armed reprisal. In fact, even if the assassination attempt had been carried out successfully, it would still have been quite difficult for the State Department’s Legal Adviser to assert ground for a lawful use of force against Iran.
Long are gone, indeed, the days when the assassination of a certain Archduke Franz Ferdinand sufficed to emblaze an entire world in the flames of war.
Today, we live in a post-WWII world where international relations are supposed to be governed (at least from a legal standpoint) by a stringent regime established by the United Nations Charter. Under the current legal order, armed reprisals – like all other forms of unilateral recourse to force – are strictly prohibited. The only situation in which retaliatory use of force is permitted is if it is conducted as an exercise of the right to self-defense (Article 51 of the U.N Charter). And the right to “self-defense” (or collective self-defense) can only be invoked if the victim-State has been subject (or is imminently about to be subject) of an “armed attack” conducted by another state.
An armed attack is, of course, a type of large-scale armed aggression conducted directly by a State or indirectly by armed bands, groups, irregulars and mercenaries sent by or acting on behalf of that State. cites as examples of acts of aggression serious acts along the lines of invasion, military occupation, bombardment, large-scale attacks on ships and aircrafts, blockade of ports or coasts and any other such very grave forms of use of force.
This means that the right to self-defense is triggered only under certain restricted conditions (that conventional military forces are more likely to be able to create), and not automatically by just any violation of international law, be it the assassination plot (and a foiled one too) of a high-ranking foreign dignitary.
The International Court of Justice in quite clear on this point too. In its famous Nicaragua judgment, the Court clearly stated that:
“Whether self-defense be individual or collective, it can only be exercised in response to an “armed attack”. In the view of the Court, this is to be understood as meaning not merely action by regular armed forces across an international border, but also the sending by a State of armed bands on to the territory of another State, if such an operation, because of its scale and effects, would have been classified as an armed attack had it been carried out by regular armed forces. The Court quotes the definition of aggression annexed to General Assembly resolution 3314 (XXIX) as expressing customary law in this respect.”
Furthermore, in order to engage the Iranian State’s legal responsibility – which requires attributing the criminal conduct of the suspected individuals to Tehran – the United States needs to clearly demonstrate that the person or group of persons in question were in fact acting on the instructions of, or under the direction or control of Iran.
This demonstration is no easy task. International jurisprudence and customary rules of State Responsibility require the demonstration of an “effective control” (and not just mere provision of means) exercised by the State (Iran) over the private agents carrying out the specific operation. So far, the relatively of the statements issued by various American officials on day one, and the initial information released about main suspect (background, place of residence, time spent in the U.S, etc.) don’t seem to be even remotely meeting this high threshold at first impression.
Moreover, it’s also important to note that according to Article 11 of the International Law Commission’s Draft Articles on State Responsibility factual acknowledgement and even endorsement of private acts by the accused State are not sufficient to engage its legal responsibility. For the actions to be attributable to States, they must explicitly recognize the private conduct as their own.
Ironically, this is a principle that was reaffirmed by the International Court of Justice in yet another standoff opposing Iran to the United States at The Hague in 1980 over the fate of The United States Diplomatic and Consular Staff in Tehran. In this case, the ICJ ruled that mere approval of the actions of the hostage-takers was insufficient to trigger Iran’s legal responsibility under international law. It concluded however that the policy of not ending the hostage ordeal and the subsequent compliance thereto by Iranian government officials transformed the private occupation of the American Embassy into an act of the Iranian State.
In the present case though, Iran is neither approving the act, nor implicitly appropriating it, nor asserting any sort of responsibility with its regard. On the contrary, it is “categorically and in the strongest terms” condemning the allegations of involvement (that it founds political in nature and unfounded) and firmly reiterating its position on such acts that it officially equates to “terrorism”. It’s therefore safe to say that this time around, the Iranian government’s denunciatory reactions to the accusations are significantly different form the approbatory position it took during the 1980 hostage taking –and this fact alone would make it a tad more challenging for the United States to implicate Tehran solely on legal grounds.
