14 No. 76 JUSTICE Iranian scientific breakthrough that brought the country to within a very short timeframe, perhaps even less than the two weeks some Israeli officials had said publicly, of assembling at least ten nuclear bombs.17 Then, on June 12, 2025, the International Atomic Energy Agency (IAEA) adopted an unprecedented, strongly worded Resolution condemning Iran for breaching its obligations under the Nuclear NonProliferation Treaty, lying about its nuclear program and refusing to cooperate with the agency.18 This was the first IAEA condemnation of Iran in two decades. Israel launched Operation Rising Lion the next day. Iran’s Ballistic Missile Program Israel also had been concerned for many years about Iran’s aggressive pursuit of a ballistic missile arsenal capable of wreaking havoc on Israel and delivering nuclear weapons against Israel. The JCPOA did nothing to curb Iranian ballistic missile aspirations, and indeed the JCPOA helped fund those aspirations by releasing more than $100 billion of frozen Iranian cash back to the regime. By early 2024, Iran had amassed an arsenal of thousands of missiles, some with a range capable of hitting eastern and central Europe, but most aimed directly at Israel. The United States Institute of Peace reported on April 12, 2024 (only one day prior to the first Iranian drone and missile attack against Israel) that “Iran has the largest and most diverse missile arsenal in the Middle East.”19 Legality of Israel’s First Strike Israel’s attack against Iran on June 13, 2025, was justified as an act of anticipatory self-defense against the imminent threat to Israel posed by Iran’s nuclear and ballistic missile programs. Abundant evidence existed that Iran was perilously close to producing several nuclear warheads as of early June 2025. The mere existence of those warheads, given Iran’s ambitions and stated policies, would have constituted an existential and imminent threat to Israel. Israel had a moral obligation to its people not to wait for Iran to assemble nuclear bombs before taking action to remove the threat. But was Israel’s first strike legal? International law regarding anticipatory self-defense is murky. Although there is some uncertainty about what the rules are, it is widely agreed that the jus ad bellum allows States to take anticipatory or preventative action against the threat of an imminent attack. Article 51 of the UN Charter expressly preserves to States their “inherent” right to self-defense, meaning longstanding customary rules of international law regarding self-defense. The reference to “inherent” rights of self-defense would suggest Article 51 was not intended to supersede preexisting customary international law, including the Caroline doctrine.20 International custom and practice have long permitted anticipatory self-defense in circumstances where an armed attack appears imminent. The concept derives from the so-called Caroline Doctrine. The Caroline was a privately owned American steamboat attempting to transport supplies to Canadian insurgents. A British force intercepted the Caroline in United States waters on December 29, 1837. The British force fired on the Caroline, forcibly seized it and set it on fire, and sent it plunging over the Niagara Falls. Two Americans died in the attack.21 Britain, in an exchange of letters with U.S. Secretary of State Daniel Webster, defended the attack on the Caroline as a justified act of self-defense or selfpreservation. Webster, however, rejected Britain’s assertion of a broad, peremptory right of anticipatory self-defense. He argued Britain had failed to demonstrate the Caroline posed an “instant, overwhelming [threat], and leaving no choice of means, and no moment for deliberation.” Webster emphasized Britain had failed to demonstrate any necessity for the attack. Nor had Britain acted in proportion to whatever threat it perceived from the Caroline’s activity.22 17. David Horovitz, “How Close was Iran to the Bomb, and How Far Has Israel Pushed it Back?” TIMES OF ISRAEL, June 18, 2025, available at https://www.timesofisrael. com/how-close-was-iran-to-the-bomb-and-how-far-hasisrael-pushed-it-back/ 18. U.N. Doc. GOV/2025/38 (12 June 2025), available at https://www.iaea.org/sites/default/files/25/06/gov202538.pdf 19. The United States Institute of Peace, “Iran’s Missiles: Infographics and Photos,” THE IRAN PRIMER, April 12, 2024, available at https://iranprimer.usip.org/blog/2021/ feb/17/iran%E2%80%99s-missiles-infographics-andphotos 20. Malcolm Shaw, INTERNATIONAL LAW 994 (Cambridge Univ. Press, 9th ed. 2021). 21. M. Rogoff & E. Collins Jr., “The Caroline Incident and the Development of International Law,” 16 BROOK. J. INT'L L. 493, 494-95 (1990). 22 Id. at 497-98.
RkJQdWJsaXNoZXIy MjgzNzA=