Do you think that such a strike could be justified? If so, under what principles? What is the legal basis for even preventing Iran from developing nuclear weapons? Would that basis provide a justification for the use of force?
Tuesday, November 8, 2011
Israel Contemplating Military Strikes Against Iran
Do you think that such a strike could be justified? If so, under what principles? What is the legal basis for even preventing Iran from developing nuclear weapons? Would that basis provide a justification for the use of force?
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Ben: A unilateral act of aggression by Israel against Iranian nuclear facilities would not be necessary and would be an unjustified act of aggression. The recent response from the international community certainly rules out a unified or endorsed strike. Despite Iran's continued objection to the existence of the Israeli state their objection is merely political at this time. There has been no armed attack, Israel is in no immediate or continued danger. The addition of nukes to Iran's arsenal is just one more [albeit substantially greater] military tool. Strikes aren't contemplated every time Iran builds a new model of tank. So without a tangible, immediate threat any Israeli aggression would be unjustified.
ReplyDeleteMatt Parker: I disagree with Ben. As much as I hate to be stereotypical...Israel does have a right to protect itself. It is in a highly untenable position, surrounded by countries that don't recognize it at the best and want to destroy it most of the time. Iran with military nuclear potential is an existential threat to Israel that absolutely justifies self defense by removing that capability. So long as it is narrowly and precisely applied, force to preserve the integrity of the Israeli state is justified.
ReplyDeleteKait: In class we discussed that Israel's actions may be considered a "threat" of the use of force, which is prohibited in Art. 2(4) of the UN Charter, just as is the use of force. However, I wonder if Iran's actions to develop their nuclear weapons would also be considered a threat of the use of force. Could the possession of nuclear weapons be considered a threat of force? While Iran may not be openly stating that they intend to use the weapons on any particular country, I can see how Israel would consider the development of these weapons as a potential threat to their nation.
ReplyDeleteBrian: Israel does not have a definitive reason to attack Iran. It is an assumption that if Israel can prove rises to a substantial risk, then it would be appropriate. Also, nuclear weapons are definitely a threat of armed force. That is there purpose for existing until fired.
ReplyDeleteNo: A strike would only be justified under the customary law of self-defense where a strike MIGHT become justified once Iran's nuclear capabilities became operational. A better answer is forthcoming...
ReplyDeleteIf we assume that possessing or developing nuclear weapons is a threat of the use of force, doesn't that mean that every state is being threatened so they can also act? And does it mean that every state that currently possesses nuclear weapons is threatening the use of force and is therefore in violation?
ReplyDeleteIf indeed there is credible evidence that Iran is attempting to develop nuclear weapons (I remain unconvinced nothwithstanding this report, especially in light of the WMD fiasco in IRAQ) then the UN will no doubt pass a resolution, followed by the imposition of sanctions, and Iran will probably remain unaffected in the development of their program. The easy answer of course is for the UN or the E.U. to conduct inspections at all of the alleged sites to determine the legitimacy of any nuclear weapons threat. The inherent problem is that Iran would have to agree to such activities, which they are not likely to do. However, in the absence of definitive proof of the existence of nuclear weapons development, Israel is not legally justified in launching any strikes against these sites. I am inclined to agree with Matt however, in that I believe the Israelis will have no hesitation in launching the strikes if they reasonably believe that Iran is developing nuclear weapons. It is important to try the legal/diplomatic approach, but in the end, any state that feels their survival being threatened will react without consideration for anything else, including UN approval.
ReplyDeleteBJ Harden: (I tried posting this earlier and it disappeared, if it shows up multiple times I apologize.) Obviously this is a complicated issue. I agree with Matt that the issue of Israel's right to self defense does come into play here. Iranian President Mahmoud Ahmadinejad has made several threatening statements toward Israel in the past, including alleged comments concerning "wiping Israel off the map." I understand the translation of that statement has been the subject of debate but regardless I find it clear that Ahmadinejad has expressed his desire to destroy Israel. Iran cannot destroy Israel with tanks but they could with nuclear weapons. If they were to strike Israel with nuclear weapons it would of course be a violation of international law and Israel would have a clear right to defend itself under Article 51. It would also be to late.
ReplyDeleteI believe this issue requires a look at the threat of force made by Iran. As we discussed in class, the threat of force is unlawful if the threatened action would also be unlawful. I also think this brings up the credibility issue that was discussed during the last class period. Is an Iranian threat to destroy Israel credible? If Iran were to develop nuclear weapons they would have the capabilities to do so but would they do so knowing that the result would be mutually assured destruction. Finding answers to that question would require exploration of why certain powerful figures in Iran want to destroy Israel. I do not have the answers to these questions but I do believe that the combination of Ahmadinejad's threatening statements toward
Craig Martin: Do not forget to include your name in your post.
ReplyDeleteWith respect to the issue of threat, there are a couple of issues. First, as Heather alludes to, is having capability alone sufficient to constitute a credible threat? Is capability married with vague statements of malice enough to constitute a threat? If I say to my neighbor that I wish he was wiped off the face of the earth, and later he learns I am at the gun store buying a gun - does that combination of facts give rise to a credible threat that I will shoot him?
Even if we determine that such a combination of facts does constitute a sufficiently specific threat, we then have to ask what arises from that? Let us say that, returning to the Iranian situation, it does constitute a threat, and as such violates Art. 2(4) of the Charter - does that provide grounds for a use of force in self-defense? Going back to the neighbor analogy, would my neighbor be justified in shooting me as I head out to the gun store because he is convinced that I am going to use the gun against him? Is the threat sufficiently developed, and is the risk of attack on him sufficiently proximate - is it sufficiently imminent - to justify the use of force? Is the imminence such that the use of force is necessary - in the sense that it is the only alternative to preventing my shooting him?
How would a use of force by Israel fall on the spectrum between use of force in response to an armed attack at one end, through "anticipatory self-defense", on to "preventative self-defense" or the Bush Doctrine at the other end of the spectrum?
BJ: If we can determine that Iran has made an illegal threat of the use of force in violation of Art. 2(4) it still does not by itself give Israel an Art. 51 right of self defense justification to attack Iran. As we discussed Friday, Art. 51 requires an armed attack to have occurred not merely a use of force or threat of force. Where Israel might have an Art. 51 justification is under the inherent right of self defense. Israel could argue that Iran presents a credible threat to their existence and Israel has an inherent right to defend itself from the threat. In this situation I believe it goes back to the credibility of the threat. Would Iran really go through with a nuclear strike on Israel knowing the result would likely be their own annihilation? How credible is the threat coming from Ahmadinejad, who although President of Iran is not the actual leader of the nation? How close is Iran to actually developing nuclear weapons capable of striking Israel? If considering all of the factors it appears that the threat towards Israel is credible then I believe Israel has an inherent right of self defense. If the threat lacks credibility the answer would be no.
ReplyDeleteLyndzie—I respectfully disagree with Prof. Martin in his gun store analogy. He asked, “[I]s having capability alone sufficient to constitute a credible threat? Is capability married with vague statements of malice enough to constitute a threat? If I say to my neighbor that I wish he was wiped off the face of the earth, and later he learns I am at the gun store buying a gun - does that combination of facts give rise to a credible threat that I will shoot him?”
ReplyDeleteFirst off, capability is definitely sufficient to constitute a credible threat. We already know that Iran has little self-restraint, couple that with capability and that becomes a serious threat. If Mexico threatens the United States, we might laugh it off. [I was going to say Canada but in caution of my grade I exercised self-restraint.] But if a country like China threatens the United States, it might not be such a laughing matter. Why? Capability.
Second, another reason why the analogy is not ideal is because there is a huge difference between my neighbor saying he wished he could wipe me off the face of the earth and a country saying the same. The difference is responsibility. A country cannot say the same thing my ignorant neighbor might say and not have different consequences for its words. I understand, though, that it was just an example.
In conclusion, I believe an Israeli strike against Iranian nuclear facilities is inevitable if the threat remains (and there’s no indication that Iran will be holding hands with Israel singing kumbaya any time soon). My theory is based on a well-established history: In June 1981, Israel launched an air strike against Iraq’s Osiraq reactor in hopes to delay the Iraqi nuclear weapons program; in September 2007, Israel launched another air strike, except this time against a nuclear facility in Syria, built with North Korean assistance; and we can’t forget all of Israel’s warplane penetrations of Syrian air defenses.
Israel would probably rather be seen as in violation of international law (although I believe they would not be) than to be “wiped of the face of the earth.”
JD: The above comments seem to indicate two divergant rationales, one being whether a pre-emptive strike on Iran's nuclear facilities is warranted generally, in order to protect Israel from the possibility of a future use by Iran of nuclear weapons, and the other whether such a strike by Israel would be in accordance with international law.
ReplyDeleteAs regards the latter, it is clear that such a pre-emptive strike by Israel would violate existing international law: the use of force is prohibited by article 2(4) unless under the auspices of Article 51, which, as we discussed in class previously, permits use of force in self-defense only once an armed attack has occured. Whether 51 permits "pre-emptive" or "anticipatory" self-defense is currently a contentious issue; the closest doctrine in existence in customary law seems to be the kind of "pre-emption" contemplated in the Caroline Case, which requires that the "necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation." Moreover, there is ample debate as to whether the Caroline test has been superceded by the U.N. Charter, and whether the "inherent right" in the language of 51 was intended to reflect existing customary law on the use of force in self-defense that might include the Caroline test.
Importantly, the 25-page IAEA report stopped short of stating explicitly that Iran was developing a nuclear bomb. While it would not be surprising for Iran to be contemplating such a capability, the report only lists activities which include conducting computer modelling, developing a detonator, and testing high explosives, and that there is no "innocent explanation" for what Iran is doing (J. Reynolds, BBC Iran Correspondent).
According to the reporting, experts claim that Iran is at least one to two years away from being able to produce a nuclear bomb. This brings into question issues of "imminence" under the customary doctrine of pre-emption, and whether reasonable alternatives to a pre-emptive strike by Israel exist AT THIS TIME and in the near future.
Finally, whether such a strike at the present time would be favorable to Israel in the short-term is also questionable: such a strike would be highly condemned and would threaten to further de-stabalize the region, not to mention the fuel that such a strike would add to anti-Israeli (or pro-Palestinian statehood) sentiment in the U.N.
The bottom line: A pre-emptive strike by Israel against Iran's nuclear facility would be illegal in lieu of the non-existence of any threat posed by Iran in the "near" future; there exist alternatives that WOULD be in accordance with existing law, that would better ensure regional stability in both the short- and long-term.
absent some indication of when an attack by iran against israel might come, i dont think israel has the imminence necessary to justify a preemptive attack on iran. however, iran stated it would be happy to rid the world of israel after it possessed those weapons, which is a threat of force. israel's comments in response regarding the use of force against iran seem to be more like a threat of self-defense.
ReplyDeletebut, the purpose of international law is to prevent war which is probably a good thing. so, both countries should be put in back in their corners and told to make nice.
Keeping in mind the historical tensions that exist between among some middle eastern countries, I believe it's important to keep in mind that Israel's strike against Iran may be motivated by other factors. Nuclear arms are dangerous for any country to possess, in my opinion. But, it is not a justification for Israel to launch attack upon Iran. We have discussed the use of force and the defenses that can be used to support an act of force. But in this circumstance, Israel's strike is not justified because there isn't an imminent danger from Iran. Israel may have an argument that simple possession could be an imminent danger; but, if the weapons aren't in a stage of completion, the imminent danger to Israel and surrounding countries is not a threat.
ReplyDeleteI'm convinced that Israel would be unjustified in perpetrating an attack against Iran today. Iran does not have nuclear capability, despite their attempts to acquire it. Iran has stated that they wish for Israel to be wiped off the map, yet they have taken no steps to do so to my knowledge. Iran obviously has dislike and disdain for Israel, yet they still have diplomatic interaction (though scant and tense) and economic interaction.
ReplyDeleteI think all this indicates that Iran might be full of bluster and hubris. Talk is cheap.
That said, if Iran DID develop nuclear capability, and continued to make these threats, I think it's safe to say that this change in circumstances would change the answer, and I think it's also fair to say that, in my opinion, Iran developing nuclear weapons could be a very dangerous thing. But I'm also convinced that any country that has nuclear weapons could never be so stupid as to actually use them, now that we actually know what would happen if they were.
While Article 51 of the United Nations’ Charter recognizes the inherent right of self-defense among Member States, the intended execution of such a right by Israel in this particular situation does not seem reasonable and could possible do greater harm to the objectives and purposes of the U.N. and its Charter.
ReplyDeleteArticle 1, section 1 of the Charter outlines some of the basic purposes of the United Nations—articulating in part the need of Member States to maintain international peace and security and take collective measures for prevention and removal of threats to peace. No one will deny that the State of Israel has not endured constant threats of aggressive action by its neighboring States. In addition to the very well document antagonism of Iran and Syria, less vocal States in the region continue to display tension with the Israeli government. Because of this circumstance, any unilateral action by Israel, even under the auspices of self-defense, will be viewed negatively by every State in the region and will most likely result in armed conflict and possibly a full-scale war. Development of nuclear weapons by Iran is a threat to the world community as a whole. And if Iran is developing nuclear weapons, only collective action should be utilized.
At this point, I agree that Israel would be unjustified in a unilateral attack against Iran. However, it is also not my opinion that Israel should wait until the weapon is developed before action is taken.
ReplyDeletePart of the danger is that the lack of agreement on the action to be taken could only bolster Israel's position that it should act alone now or face waiting until Iran has a fully developed weapon. I also agree that development of nuclear weapons by Iran is a threat to the world community.
If decisive action is not taken collectively now, as Lyndzie said, a strike is likely inevitable as Israel may feel that it has no other option.
Craig Martin: The discussion so far has been interesting, and I think very useful. A few points emerge from this which might be worth noting.
ReplyDeleteA few of you are making both legal and policy arguments. It is important to recognize the policy imperatives, but it is also crucial not to confuse the two. Whether Israel would use force, or whether it would be wise for it to do so, are policy issues that have nothing to do with the legality of such a use of force (other than the fact that its unlawfulness might have policy implications).
On the substance, there has to be considerable precision and rigor in applying the legal test. If one wants to argue that the development of nuclear weapons, coupled with assertions that the state intends to use them to attack another state, constitutes a sufficiently material threat of imminent attack so as to justify the use of force in self-defense, one still has to explain how exactly this meets the requirement that the use of force is responding to an "imminent armed attack", and that the use of force is necessary in the sense that there is no other alternative. Or one has to argue that the test is insufficient, and a preventative self-defense doctrine is required.
Let us take Lynzie's comment as the clearest articulation of the argument that capability, coupled with past conduct and expressed intent, constitutes sufficient grounds to justify a use of force in self-defense. How would this apply more generally? How would it apply to Iran, for instance?
Consider: Israel has nuclear weapons, and is arguably the most militarily capable state in the region. It has a track record of attacking other entities, from the '67 war, through to attack on the PLO in Tunisia, strikes against Iraq in '81, and most recently the Lebanon and Gaza campaigns. And it is now making known its consideration of the use of force against Iran.
Similarly, the U.S., its ally, is the most powerful country on the planet. The U.S. orchestrated the overthrow of the democratically elected government in Iran, and installed a right-wing dictator, in 1964. It has intervened militarily in numerous countries all of the world in the last half-century. The American president (Bush) recently called Iran one of three countries that together comprise "the axis of evil", and then the US invaded the first country on that list (Iraq). It has substantial military forces and bases in virtually every country surrounding Iran.
From Iran's perspective, it is thus confronted with two nuclear-capable powers, with aggressive track records that reflect their ability and willingness to attack, and both have made public expressions of intent to strike Iran. Capability, past conduct, and intent - does Iran therefore have a right to use force against these two states in self-defense? If not, why not? And how does their situation differ from that of Israel and the U.S.?
In analyzing these issues, we have to step out of our shoes so to speak and try to assess the problem from an entirely neutral standpoint. Please do continue the discussion...how would you answer the questions just posed? How would they alter your thinking, if at all? If not, why not?
Iran cannot justify acting in self-defense, at least not yet.
ReplyDeleteThe standard for self-defense is higher than simply the capability to act. Although past conduct and intent are more grounds for justification of self-defense, there needs to be something more to prove imminence, such as evidence of concrete plans for the near future.
Abby Stenek
Turns out this is too long, so I'm posting it in 2 parts:
ReplyDeleteI think it's relevant to note something Lyndzie briefly referenced and that has been going through my head throughout this discussion related to the evolution of International Law regarding preemptive strikes.
In 1981, Israel launched Operation Opera, a preemptive strike against Osiraq, an Iraqi nuclear facility. This strike was met with a world wide rebuke of Israel's actions and led Security Council Resolution 487, which stated 7 points:
1. Strongly condemns the military attack by Israel in clear violation of the Charter of the United Nations and the norms of international conduct;
2. Calls upon Israel to refrain in the future from any such acts or threats thereof;
3. Further considers that the said attack constitutes a serious threat to the entire IAEA safeguards regime which is the foundation of the non-proliferation Treaty;
4. Fully recognizes the inalienable sovereign right of Iraq, and all other States, especially the developing countries, to establish programmes of technological and nuclear development to develop their economy and industry for peaceful purposes in accordance with their present and future needs and consistent with the internationally accepted objectives of preventing nuclear-weapons proliferation;
5. Calls upon Israel urgently to place its nuclear facilities under IAEA safeguards;
6. Considers that Iraq is entitled to appropriate redress for the destruction it has suffered, responsibility for which has been acknowledged by Israel;
7. Requests the Secretary-General to keep the Security Council regularly informed of the implementation of this resolution.
On October 1, 1985 Israel launched Operation: Wooden Leg - another strike within Tunisia against the PLO Headquarters in Tunis. Prime Minister Shimon Peres stated that the attack "was one of self defense, period."
International reactions against Israel following this attack were as fierce as the 1981 strike. Additionally, several nations pointed fingers at the United States, claiming the U.S. had to have assisted or at least had prior knowledge of the attacks.
The Security Council responded with Resolution 573, condemning the attacks and calling for Israel to make reparations. Israel has yet to abide by this resolution.
Operation: Orchard was the other attack Lyndzie referenced. It was carried out against a Syrian nuclear reactor on September 6, 2007. This was the second strike by Israel against a foreign state's nuclear facility, and the third such preemptive strike against a facility in a foreign state. Unlike the first two strikes however, the Arab World was relatively silent in the aftermath of the attack.
ReplyDeleteThere was no Security Council resolution condemning the attack. Quite the opposite in fact, since the U.S. House passed Resolution 674, expressing unequivocal support for Israel's "right to self defense in the face of an imminent nuclear or military threat from Syria.”
It seems the only outcry against Israel's actions came from North Korea, who interestingly enough, were (at least presumed)to be in the process of developing their own nuclear program.
What I find interesting is that during the 2002-2003 run up to the second Iraq war, the United States cited the Osiraq attack as justification for a preemptive strike against Iraq to prevent them from using the WMD's we alleged they had. While this was not the only justification the United States used to authorize an unprovoked attack against a foreign state in the name of self defense, the fact that they promoted an attack that they condemned at the time clearly shows that when it comes to use of military forces, the rule remains today what it has always been: "Might Makes Right". Throughout history, states have attacked other states and only afterward justified their actions, or not. It seems as though states act first, and then deal with the aftermath later.
The notion of Preemptive Strike in International Law is in its infancy at best, and like everything else, events will need to first occur in order for our laws to catch up.
With regards to Israel carrying out a strike against an Iranian nuclear facility; past events have proven to Israel and the rest of the World that Israel is free to strike with impunity wherever it deems a threat exists to its national security. How the International community reacts afterward will not affect the Israeli's decision in the slightest.
Kait: After reading some of the other comments, I don't think that Israel would have a right to strike Iran.
ReplyDeleteOf course, if we look at this situation from a more biased perspective, we can all say..."hell no, Iran doesn't get to have nuclear weapons," but as we discussed in class, Iran may have a very good reason for doing this kind of development.
One of the main reasons to have nuclear weapons is for their deterrent value. This was acknowledged in the ICJ advisory opinion on the "legality of the threat or use of nuclear weapons". That opinion also suggested that the court was unable to conclude definitively that in all circumstances the threat of nuclear weapons was unlawful. Given that information, I don't see how anyone could even stop Iran from getting nuclear weapons, in the absence of a legitimate threat that they intended to use them on a particular state (and then that just gets us back into the mess of whether force can be used as self-defense against an imminent threat...etc)
Again, Iran has a reason to start developing these weapons for their deterrent value. I don't see any other state having the right to strike Iran just b/c they may develop these weapons. There just has to be more of a threat before anyone is justified in a strike.
(PS - I'm cutting off my analysis b/c JD started arguing with me while writing this...)
I have to agree with Kate and would like to extend her argument a little further. Iran has a right to develop military nuclear technology and that development alone is not a sufficient threat against any nation to provoke some kind of preemptive self defense. I have trouble imagining what circumstances would allow a legitimate preemptive strike against tech development centers. [Maybe a unanimous "As soon as we finish this bomb, we're leaving it on your door step." Or an active state of war between the two countries.]
ReplyDeleteTo extend the argument I think any nation has the right to pursue nuclear technology free of the threat of force from any other nation. In states where there is an international concern for security of the dangerous tech, the int'l community should attempt to help with security. Any country can acquire the weapons but there is an emerging norm against using them.
Now as for the actual pragmatic aspects of what countries will do I think Nick's right also. Israel will do what it wants and ask forgiveness later [which will likely be given].
Craig Martin: While we did not look at this issue in class, the Nuclear Non-Proliferation Treaty does impose obligations on those non-nuclear weapons states that are parties to the treaty, not to develop nuclear technology for anything other than peaceful energy purposes. Iran is a party to the treaty. That is the basis for IAEA inspections, and UN Security Council resolutions imposing sanctions on Iran for the apparent violation of those obligations. North Korea developed nuclear weapons in violation of those obligations. Pakistan, India, and Israel, are not parties to the treaty.
ReplyDeleteHowever, the nuclear weapons states that initially entered into the treaty induced the non-nuclear weapons states with three commitments. First, was the commitments to make serious efforts towards nuclear disarmament; second, to provide peaceful nuclear energy to non-nuclear weapons states that acceded to the treaty (and by implication, would provide such technology only to state parties); and third, they promised never to use nuclear weapons against non-nuclear weapons states.
It can be argued that the U.S. has broken all three of these promises, in that it has not been making serious efforts towards disarmament, it has entered into an agreement to provide India, a non-state party, with nuclear technology, and in the Bush Administration's strategic planning, it even suggested that nuclear weapons could be used against non-nuclear weapons states. These circumstances have led to increasing questions being asked among the non-aligned world states as to why they should adhere to the non-proliferation regime obligations.