The Erosion of Authority: The IAEA, Preemptive Attacks, and the Nuclear Dilemma in a Fragmented World

[Naomi Masumy is a PhD candidate at Maastricht University, specializing in dispute resolution with a focus on energy and investment disputes, and previously a research fellow at Deakin University.  

Zeynab Malakouti is a visiting research fellow at the Middle East Institute, National University of Singapore (NUS). She served as an assistant professor at the Research Centre and UNESCO chair for Human Rights, Peace and Democracy in Iran. She holds a PhD in international law from the University of Leeds, UK.]

Israel’s military strikes against Iran, characterized and justified by some as pre-emptive actions, have raised significant questions about the IAEA’s effectiveness and sparked debates over the legitimacy of pre-emptive military intervention in nuclear disputes. This post argues that these strikes undermine the IAEA’s credibility as an international organization and set a dangerous precedent by endorsing pre-emptive action, encouraging nations to weaponize preemption as a means of asserting dominance.

The weakening of IAEA authority represents a notable shift from the global nuclear governance framework established in the 1950s. The agency was created in 1957 following President Eisenhower’s 1953 “Atoms for Peace” speech, with the mission to oversee nuclear development, prevent weapons proliferation, and promote peaceful nuclear applications.

Recent Israeli and U.S. military actions against Iranian uranium enrichment facilities highlight growing tensions in international nuclear governance. While both nations publicly supported the IAEA’s resolution condemning Iran’s nuclear program as “necessary and overdue,” they ultimately chose to bypass the agency’s diplomatic framework in favor of direct military strikes. This approach raises fundamental questions about whether established international oversight mechanisms can effectively address nuclear threats when nations opt for unilateral action over multilateral diplomacy.

Although the legality of these attacks remains questionable under international law, they create significant environmental and nuclear safety risks extending far beyond Iran’s borders. The strikes have compromised safety protocols at Iranian facilities, damaging critical infrastructure including electricity systems at the Natanz enrichment site, the Fordow underground facility, and the Isfahan conversion plant. This degradation creates concerning possibilities for radiological and chemical contamination from uranium isotopes and hazardous substances like Uranium Hexafluoride. Most concerning is the potential threat to operational facilities like the Bushehr Nuclear Power Plant, where an attack could trigger catastrophic radioactive releases requiring mass evacuations across hundreds of kilometers, potentially affecting neighboring countries.

The IAEA’s Diplomatic Approach to Non-Compliance: A Pathway to Resolution

The IAEA follows a clear escalation process when countries violate nuclear agreements. IAEA inspectors first identify violations and report them to the Director General, who presents findings to the 35-member Board of Governors. The Board initially asks the violating country to fix the problem. If diplomacy fails, the IAEA refers the case to the UN Security Council for potential sanctions. This process worked successfully in 2003 when Libya voluntarily dismantled its secret nuclear weapons program with IAEA assistance.

The UN Security Council has given the IAEA specific reporting duties regarding Iran’s nuclear program under the 2015 nuclear deal (JCPOA). The IAEA must confirm when Iran completes technical requirements and report when it concludes that all nuclear material is being used for peaceful purposes. The agency provides ongoing reports to both its Board of Governors and the UN Security Council about Iran’s compliance, and must report immediately if there are credible concerns about violations. This creates a direct reporting line from IAEA inspectors to the UN Security Council for enforcement decisions.

The IAEA operates through a carefully designed multi-step enforcement system that prioritizes diplomacy over force. When violations occur, the agency employs reporting, investigation, consultation, and potential UN Security Council referral—a framework that has successfully prevented nuclear conflicts for decades. This multilateral approach recognizes that nuclear security requires sustained international cooperation, not unilateral military action. Director General reports, such as S/2022/472 from May 2022, demonstrate how this systematic oversight maintains global nuclear stability through accountability rather than aggression.

Iran’s Nuclear Crisis: When Diplomacy Meets Military Force

Iran’s nuclear program exemplifies how military strikes derail diplomatic solutions. The IAEA Board found Iran non-compliant for the first time in two decades, prompting new enrichment plans. Iran now possesses over 400kg of uranium enriched to 60% purity. However, both Iranian officials and U.S. intelligence confirm Iran doesn’t currently possess nuclear weapons.

Israeli and U.S. attacks on Iranian uranium facilities have disrupted IAEA enforcement mechanisms. The agency suspended inspections since the strikes, relying on satellite imagery instead of hands-on verification. The IAEA’s General Conference states “armed attacks on nuclear facilities should never take place,” warning of “radioactive releases with grave consequences.” Under international humanitarian law, these attacks raise complex questions regarding Article 56(1) of Additional Protocol I to the Geneva Conventions. While this provision prohibits attacks on nuclear electrical generating stations, it creates a conditional prohibition that only applies “if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population.” The analysis would need to demonstrate that the particular attacks could reasonably cause such release and resulting civilian casualties. Moreover, neither Israel nor the US has ratified Additional Protocol I, significantly undermining any direct treaty-based claim. To maintain this argument, one would need to establish that Article 56(1) has crystallized into customary international law through sufficient state practice and opinio juris, binding both states despite non-ratification. However, the customary law status of Article 56(1) remains contested in international legal scholarship, making this a weaker foundation for the legal argument.

The Contested Legal Framework of Pre-emptive Military Action: A Conceptual Reframing

The elusive nature of pre-emptive strikes is dismantling the international order, replacing decades of diplomatic consensus with military force. This dangerous precedent encourages nations to weaponize preemption as a tool of dominance. When unilateral strikes replace transparency and verification, the fragile trust that underpins nuclear cooperation crumbles—already evident as Iran threatens to abandon the NPT entirely.

The main legal question is whether a military strike against Iran’s nuclear sites by Israel or the U.S. can be considered an act of self-defence under international law—a view that Marko Milanovic has examined and concluded to be illegal, while Michael Schmitt has argued it could be lawful. However, according to Article 2(4) of the UN Charter, all Members shall refrain in their international relations from the threat or use of force. The only exception to this prohibition is found in Article 51, which permits self-defence if an armed attack occurs against a Member of the United Nations. Here, the distinction between an actual and an imminent armed attack becomes crucial. The UN Charter refers explicitly to an actual armed attack (or an armed attack occurs), whereas Israel and the U.S. have sought to justify their actions based on the notion of an imminent threat – a justification that may be accepted under certain legal conditions.

Pre-emptive attacks in response to an imminent threat can be traced back to the ‘Bush Doctrine’ following the 9/11 terrorist attacks, which expanded the concept of ‘imminence’ in relation to the right of self-defence, allowing the US to justify acting pre-emptively or even preventively. (A detailed discussion of preventive attack is beyond the scope of this post.) The notion of imminence is a key element here and is historically linked to the Caroline incident in 1837, which established the standard of “a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation.” It must bear in mind that, at that time of Caroline incident, there was no explicit prohibition on the use of force under international law. However, applying this 19th-century standard to modern pre-emptive scenarios presents significant interpretive challenges.

The constitutive components of pre-emptive self-defence doctrine rest on two primary pillars derived from the Caroline precedent: necessity and proportionality. Necessity requires that the threat be so immediate and overwhelming that no alternative diplomatic or defensive measures remain viable, while proportionality demands that the pre-emptive response be commensurate to neutralizing the anticipated threat. However, these seemingly clear principles become deeply problematic in practice because they rely on predictive assessments of future actions rather than responses to completed acts. The necessity criterion becomes obscured when states must justify why diplomatic engagement, economic sanctions, or other non-military alternatives were insufficient to address a threat that has not yet materialized. Similarly, proportionality becomes nearly impossible to calibrate when the response must be measured against a hypothetical future attack whose scale, timing, and methodology remain speculative.

As the Caroline incident occurred nearly a century before the adoption of the UN Charter, it is not practical to rely on it as a primary legal source in this context. Instead, a more contemporary and authoritative analysis is provided by Michael Schmitt, who outlined three essential criteria for pre-emptive self-defence: intent, capability, and the last opportunity to act. These elements, when satisfied collectively, distinguish anticipatory self-defence from unlawful preventive use of force. 

Intent: Schmitt argues that, based on statements made by Iran’s Supreme Leader and other officials calling for the destruction of Israel, there is a long-standing Iranian intention to attack Israel. However, we contend that such an inference of intent cannot be drawn solely from selected political rhetoric. Many of these statements are intended for domestic political consumption and should be interpreted within the specific socio-political context of Iran and the broader Middle East—a nuance that is often overlooked by external observers. Statements made by political figures do not necessarily constitute clear or definitive evidence of intent. A broad interpretation of such statements as indicative of intent can be problematic at the international level, particularly given that calls for regime change in Iran have also been repeatedly expressed by officials in other countries—statements which, under similar reasoning, might be construed as intent to intervene, in potential violation of the UN Charter. 

Capability: The attacking State must possess the capability to carry out the alleged threat. However, the argument that Iran may, at some point in the future, acquire nuclear weapons and subsequently use them against Israel is highly speculative and lacks a solid legal foundation. First, Iran does not currently possess nuclear weapons. Second, while Iran’s recent non-compliance with its obligations under Treaty on the Non-Proliferation of Nuclear Weapons—following two decades of compliance—and the IAEA’s inability to definitively verify the peaceful nature of its program raise concerns, these factors alone do not constitute conclusive evidence that Iran has attained or is imminently capable of attaining nuclear weapons (Unless intelligence services possess concrete evidence—which, to date, has not been made publicly available—such claims remain speculative). Even if Iran were to become capable of producing nuclear weapons in the future, this does not necessarily imply an intention to use them. Anticipatory self-defence cannot be justified on the basis of a hypothetical or remote possibility. Moreover, if statements by Iranian officials are cited as evidence of intent, then consistency demands that other official declarations be taken into account when evaluating capability—most notably, the Supreme Leader’s fatwa prohibiting the acquisition, development, and use of nuclear weapons. 

Last Opportunity: Israel might argue its operational window to preempt Iranian attack was closing, since anticipatory action becomes nearly impossible once nuclear weapons are stored underground. However, force is a last resort requiring exhaustion of peaceful means. The “last opportunity” claim lacks persuasion as Iran and the US were actively negotiating, potentially for months. Iran’s new administration has been determined to reach peaceful resolution. Imminent threat justifying pre-emptive force requires official threats, nuclear weapons possession, explicit weapon threats, and failed peaceful alternatives. In addition, as argued by Kevin Jon Heller, the “last opportunity” test is not currently lex lata (the law as it is), as it lacks sufficient state practice and opinio juris to qualify as customary international law, being accepted only by four countries: the UK, the US, Australia, and Israel.

Accepting Israel’s rationale would create dangerous precedent. If states can justify military action based on long-term strategic concerns rather than imminent threats, the prohibition on the use of force becomes meaningless. The strikes violate the UN Charter’s prohibition on force except in self-defence, as pre-emptive attacks cannot be justified when diplomatic alternatives remain available. 

The views expressed in this piece are those of the authors and do not necessarily reflect the official position of any institution.