A Military Strike On Iran Would Be Illegal, Regardless Of Its Nuclear Status

Speaking yesterday at the annual United Jewish Communities General Assembly (a tough crowd), Likud chairman and former Israeli Prime Minister Binyamin Netanyahu used apocalyptic language to emphasise the threat posed by Iran, not only to Israel but to the entire world. "Everything else pales before this," he intoned gravely.

He also employed that ever so original tool of persuasion: a Holocaust analogy, stating,

"It's 1938 and Iran is Germany. And Iran is racing to arm itself with atomic bombs...Believe [Iranian President Ahmadinejad] and stop him...he is preparing another Holocaust for the Jewish state."

This is not the first time in recent days Ahmadinejad has been compared to Hitler. In an interview with the Washington Post, PM Olmert made the same analogy, adding that Ahmadinejad is "ready to commit crimes against humanity" and "has to be stopped".

Now, analogies to the Holocaust should not be made lightly, at least not without clarification. Likewise, comparisons to Hitler, whilst an unfortunately popular defamatory device, are usually misplaced and inaccurate. Mahmoud Ahmadinejad is a borderline Holocaust denier and he has made threats against the existence of Israel. But firstly, these threats have been abstract - he has made no direct call to arms or threat of war. Secondly, Ahmadinejad has no power under Iranian law over the nuclear programme or over matters of war. Of course all his talk about the "destruction" of Israel and questioning the Holocaust is disgusting, but it's done in order to increase his popularity with the people of Iran, not because he's actually planning a war. He is a show-figure and not in charge of policy in these matters. Thus, while convenient for Israel and the U.S., all this focus on Ahmadinejad is misleading. There is certainly no danger of a second Holocaust coming from Iran.

Israel, on the other hand, has been ratcheting up the rhetoric recently, making several very real military threats, both veiled and explicit, against Iran. In an interview published Saturday, Olmert pushed the international community to make clear to Iran that it will "pay dearly" if it doesn't stop its enrichment activities. "In other words," said Olmert, "Iran must start to fear." In the same interview, he described a nuclear Iran as "absolutely intolerable" and, when asked whether Israel would consider military action, Olmert refused to answer, saying only that, "Israel has many options."

Others have been more specific. On November 10, Israel's Deputy Defence Minister Ephraim Sneh warned that Israel must prevent Iran's nuclear programme "at all costs" (the "costs", presumably, being Iranian lives). He classified "preemptive military action" as a "last resort", before proclaiming that, "the last resort is sometimes the only resort". Not exactly what you'd call 'subtle'.

Then, of course, there was the appointment of the extreme nationalist and racist Avigdor Lieberman as `Minister for Strategic Threats', whose prime task, apparently, will be to coordinate Israeli strategy on Iran.

Finally, let's return reluctantly to Netanyahu, who has also directly threatened Iran with military force. Pointing out that Israel has "the capability required to eliminate the [Iranian] threat", he argued that stopping Iran requires "preemptive leadership" (in reference to Israel's preemptive strike in the 1967 war). It's been made crystal clear that, while it will go through the diplomatic motions and give Iran the chance to surrender first, Israel is absolutely prepared to launch a military first-strike on Iran.

The United States likewise officially retains the right to launch "preemptive strikes", even if "uncertainty remains as to the time and place of the enemy's attack". The 2006 National Security Strategy of the United States explicitly states the U.S.' right to "act preemptively in exercising our inherent right of self-defense." More recently, President Bush has declared that, with Iran, "all options are on the table".

It's important to note that when Israel and the United States talk of preemption, what they actually mean is prevention. The U.S. cited "preemption" in its case for invading Iraq, but for something to qualify as `preemption' it has to be in response to "incontrovertible evidence that an enemy attack is imminent". What the U.S. meant in the case of Iraq and what the U.S. and Israel mean in the case of Iran is prevention, which is "a war initiated in the belief that military conflict, while not imminent, is inevitable, and that to delay would involve greater risk."

In short, then, Iranians have every reason to feel insecure. Many have lived with the threat and fear of a hostile, nuclear-armed Israel and an aggressive, nuclear-armed United States all their lives. But, evidently, it is only Israel's and the United States' security that matters. Israel's ambassador to the EU, Oded Eran, recently argued that, for the first time since its creation, Israel is facing an "existential threat". He points out that,

"We know from the past the destructive nature of the nuclear weapons and it doesn't matter whether you react or not afterwards because the harm can't be reversed. That's existential threat."

Now, this is the argument that is being and will be used to justify a strike on Iran. The premises are;

  1. A nuclear Iran will be, in Olmert's words, "not just a threat for Israel, but for the whole world."

  2. Israel should not have to tolerate such a threat.

The conclusion, therefore, is that Israel has the right to strike preventively against Iran to stop it getting nuclear weapons.

The first thing to note is the unevidenced assumption that Iran is in fact attempting to develop nuclear weapons. The IAEA has emphasised (though not strongly enough) many times that, although it can't say for definite that Iran isn't pursuing nuclear weapons, neither can it show that it is. In the absence of evidence to the contrary, the working assumption must therefore be that Iran is simply exercising its legal right to enrich uranium and develop a civilian nuclear programme.

But let's, for a moment, assume that Iran is pursuing nuclear weapons. Does it then follow that, as Netanyahu put it, "[the arsenal] will be directed against `the big Satan,' the U.S., and the `moderate Satan,' Europe"? Let's look at the current nuclear club. Has Israel ever used nuclear weapons on anyone? Has France? Has the U.K.? No; the only country ever to drop a nuclear bomb on another nation is the United States. They dropped two on Japan - a non-nuclear state. There has never been an instance of a nuclear attack on a nuclear state. The reason for this is obvious: an attack on a nuclear state would result in a retaliatory nuclear strike and states don't commit suicide. There is thus no reason at all to think that a nuclear Iran would actually use nuclear weapons on anyone. As historian Martin van Crevald writes, "[Israel] has long had what it needs to deter an Iranian attack...Should deterrence fail, Jerusalem can quickly turn Tehran into a radioactive desert -- a fact of which Iranians are fully aware."

But even if we assume that Iran is developing nuclear weapons and that, should it get them, it would pose a threat to Israel, the United States and the world, would that then justify an Israeli/U.S. preventive strike against Iran? Well, let's reverse the situation. As we have seen, Israel is a nuclear power with enough nuclear weapons to "turn Tehran into a radioactive desert". Its political and military leadership have long made clear that they are prepared to launch a military first-strike against Iran. The U.S. has also made its aggressive intent towards Iran known and has enough nuclear weapons to turn the whole of the Middle East into a radioactive desert. What's more, both states have a history of aggressive military intervention (the U.S., for example, helped topple Iran's democratically elected Mossadegh in 1953). Even Tony Blair accepts that Iran has a "genuine, if entirely misplaced fear, that the US seeks a military solution in Iran."

If we argue that Israel has the right to strike Iran preventively because it fears an Iranian nuclear threat, does not Iran have the right to strike Washington and Tel Aviv for the same reason?

If basic morality does not suffice, international law is clear on the matter. Preventive military strikes are illegal. Under international law (.pdf), the "use of force is only permissable in the case of armed attack or imminent attack or under UN authorization when a threat to the peace has been declared by the Security Council and non-military measured have been determined to be inadequate."

As an American Society of International Law (ASIL) paper, entitled `The Myth of Preemptive Self-Defense' (.pdf), explains, the United Nations Charter (a binding treaty to which both the U.S. and Israel are signatories) explicitly forbids the use of force except in self-defence or if authorised by the Security Council in response to an imminent attack. But to use force under Article 51 (which permits states to use force to defend themselves) requires that, "An attack must be underway or just have already occurred in order to trigger the right of unilateral self-defense. Any earlier response requires the approval of the Security Council. There is no self-appointed right to attack another state because of fear that the state is making plans or developing weapons usable in a hypothetical campaign."

Thus, in the absence of "incontrovertible evidence" of an "imminent" Iranian aggression, there is absolutely zero justification for any military action against Iran, regardless of its nuclear status.

[Cross-posted at The Heathlander]

Tags: foreign policy, IAEA, international law, Iran, Israel, NPT, nuclear weapons, proliferation, U.S., United States, weapons of mass destruction, WMD (all tags)



You're right, just wait until they Nuke people...

This tripe is exactly why Dems have been hung with the "weak" and "cowardly" tag.  Face it, most of you always think America is wrong and we should never do anything to protect ourselves.

Being a good liberal does not mean you have to be a coward or an America-hater.  STOP playing into the opposition's hands with this weak-kneed nonsense.  Iran is a huge problem and is going to have to be dealt with.  Apparently you think it is best to deal with those maniacs AFTER they can throw nuclear weapons at us.  Sheesh... what a fool...

by Maureen Hannigan 2006-11-14 11:47AM | 0 recs
Re: You're right, just wait until they Nuke people

This has nothing to do with 'cowardice' or 'bravery'. It has to do with law. The law is pretty clear on the subject - except in the face on incontovertible evidence of an imminent attack where there is no time to do anything except attack in self-defence, any use of force is a war crime (the 'supreme international crime', no less).

But anyway, I did address your point in the article. States don't commit suicide, which is why nuclear states don't attack each other with nuclear weapons.

by heathlander 2006-11-14 12:01PM | 0 recs
Re: You're right, just wait until they Nuke people

Most of us spent at least half of our lives in a world where the only sense of security from nuclear annihilation came from the hope that the other side was equally scared...

I'd hate to return to that day.

This said, I still agree with your position, in the main, and disagree with the main thrust of Maureen Hannigan arguments. A 'brave' man stands by and minds his own business, regardless of the threat an armed foe represents... a 'cowardly' one steps forward and violates his own principles and laws, in order to make sure he never has to do so.

So, anyway, Iran is a question of law. That should have been clear in the first place; what this diary did (and successfully) was round up some useful points to that fact.

As to the sidebar, the easy painting of Democrats as 'weak' and 'cowardly'... that has nothing to do with fact (as I have suggested above), and everything to do with constant repetition of these charges by the media. The solution to that problem lies in rhetoric, not in abandoning your dedication to the rule of law.

I suggest that any time a media talking-head (O'Reilly, Coulter, Hannity, anyone) trots out this 'cowardice' charge, they be hit in return with the same treatment. Something like:

"On Monday, Fox correspondant Bill O'Reilly suggested we take the coward's way out by dealing with this situation by abandoning the democratic ideals and commitment to the rule of law that make America great. Shame on you, O'Reilly, shame... you may quake at the thought of a nuclear Iran, but the rest of America is strong enough to deal with the cards we're dealt."

by dreamer 2006-11-14 12:37PM | 0 recs
Re: You're right, just wait until they Nuke people

"Most of us spent at least half of our lives in a world where the only sense of security from nuclear annihilation came from the hope that the other side was equally scared...

I'd hate to return to that day."

Me too. I regard all nuclear proliferation as a bad thing, and I certainly don't want Iran to get nuclear weapons.

However, I also recognise that there can be no selective and partial resolution of the proliferation issue. Either the powerful states decide they want to live in a world without nukes, in which case they will begin disarming and beging reforming international institutions, or they will decide that, eventually, everyone will have nukes. It's all or nothing.
I'd prefer nothing, but unfortunately it appears I'm outspoken on that...

by heathlander 2006-11-14 01:30PM | 0 recs
There is no such thing as international law...

If a law interferes with the right of the U.S. to protect itself than it is not a law.  We must protect ourselves based upon OUR decisions not the decisions or opinions of others.

by Maureen Hannigan 2006-11-14 12:48PM | 0 recs
Re: There is no such thing as international law...

I may be misunderstanding something, but my understanding is that 'international law' refers to the body of laws which have been generated through the treaty process, and ratified by the individual countries legal process?

In the United States, if I'm remembering grade school civics properly, treaties are brokered by administration (usually the Department of State), ratified by the congress, and then signed by the President... thus making them the law of the land.

So, ignoring a treaty obligation (one of these elements of 'international law' for example) is illegal in the United States, whether or not any punishments have been prescribed.

Am I remembering something wrong? I'm trying to find a good online primer on treaty law in the US, but I haven't found one yet.

by dreamer 2006-11-14 12:55PM | 0 recs
Re: There is no such thing as international law...

Ah, here's some good information. It's not the full Congress which ratifies treaties sent to it by the President, just the Senate.

One of their 'advise and consent' roles.

My bad... but the point still stands. Ratified treaties are the law of the land.

by dreamer 2006-11-14 12:57PM | 0 recs
No Treaty controverts our right to protection...

The U.S. has never entered into ANY treaty that allows for others to determine when we may or may not defend ourselves.  I'm a liberal but not a cartoon-liberal of the ilk the conservatives try to paint.  I believe in a strong national defense.

Iran and N. Korea need to be dealt with.  Sadly, most of the the silly liberals on here think there is never a time to use the military and that the U.S. is always wrong.  True liberals are of the Hubert Humphrey, FDR breed not the modern Vietnam-era liberal who hates the military and always paints the US as wrong and always wants hand-holding from some foreign gov't.

by Maureen Hannigan 2006-11-14 01:15PM | 0 recs
Oh, I see!

I didn't realize that you possess the sole right to decide who here is a cartoon liberal, silly liberal or true liberal.

Where, exactly do latte liberals fit in there?

Also, your charge against 'most of the silly liberals here' is pretty weak. Do you want to level this charge against any specific people? Why don't you publically call them 'weak', and see how they respond?

On a different note...

In 1933, FDR cut the amount paid in veterans' benefits by 40%, a stance that he maintained until it was rendered moot by a bill passed by congress with a veto-proof majority, right? As a liberal (oh, but what kind), I'd like to avoid this sort of disrespectful behavior, no matter how much I respect FDR. It seems, I don't know... weak.

It's best to avoid name-calling, and to try not to lionize yourself... especially when you don't really understand the lion you're trying to be.

by dreamer 2006-11-14 01:44PM | 0 recs
Re: A Military Strike On Iran Would Be Illegal, Re

The U.S. has signed, for example, the UN Charter. The UN Charter forbids the use of force except in the very narrow cases I detailed above.

Thus any U.S. first-strike against Iran (unless it can provide incontrovertible proof of an imminent and unavoidable attack) would be illegal.

Just saying, 'no it won't' isn't an argument.

by heathlander 2006-11-14 01:27PM | 0 recs
You're just making a fool of yourself...

No member or signor of the U.N. Charter believes that it somehow subverts the domestic laws and powers of their nation.  Stop this embarrassing hippie-liberal act.  You are playing into the conservatives hands with all of this world-government nonsense.  Being liberal does not mean that you hate the U.S. and want to give its sovereignty to the goofy U.N.  The U.S. will protect itself based upon its own decisions and does not need the help of the UN to do that.

by Maureen Hannigan 2006-11-14 01:36PM | 0 recs
Re: A Military Strike On Iran Would Be Illegal, Re

OK, I'm not going to bother debating with you. No matter what I say you just respond with 'hippie-liberal' or some other meaningless sound-bite you've heard.

It's a simple fact that when a state, like the U.S., signs a binding international treaty, it is...you know...binding on them.

If you doubt my description of the Charter, just read it for yourself. I recommend in particular Art. 2(4).

by heathlander 2006-11-14 01:57PM | 0 recs


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