Can the U.S. or Israel Lawfully Attack Iran’s Nuclear Facilities?

Like everyone else, I continue to see media reports about the prospect of either a U.S., or far more likely an Israeli, military strike on Iranian nuclear facilities.  It has something of a soap opera aspect to it – sometimes there’s a lot of talk about it and some firebrand statements are made by either U.S. or Israeli officials, and everyone is just sure we’re only weeks away from an Israeli strike. And then a week later, the furor dies down and you read more toned-down statements from other U.S. and Israeli officials, stressing that there’s still time for diplomacy to work. 

 I’ve come pretty close to being convinced that the whole thing is much more political theatre than it is a real potentiality.  The safe money seems to be on the idea that Israel in particular uses this kind of ratcheted-up rhetoric when it wants to put pressure on the P5+1 to make progress in their diplomatic dealings with Iran – progress being defined by Israel as Iran agreeing to every demand of the West, however unreasonable or illegal. And then after a suitable amount of pressure is exerted on the crucible of the negotiations, Israel backs off of its threats in order to wait for the next key, strategic moment to play the bad cop to the P5+1’s incompetent cop.

That’s my political read of the situation. But, just for the sake of argument, lets assume for the moment that there really is a serious potential for either a U.S. or Israeli military strike against Iran’s nuclear facilities, purposed in degrading Iran’s nuclear program and its ability to develop nuclear weapons.  Would such a strike be lawful under international law?

I’m going to do the blog version of this here. I and many others have written on the topic of the legality of preemptive international uses of force as against WMD threats in much longer, and more detailed form in books and law review articles. For example, in my 2009 book International Law and the Proliferation of Weapons of Mass Destruction, Chapters 6-9 are primarily devoted to this and related counterproliferation legal questions. For a much shorter treatment on the web, see my 2008 ASIL Insight on Syria’s Al Kibar reactor site, and the 2007 bombing of the site by Israel (http://www.asil.org/insights080428.cfm)  

Basically, the only legal grounds available to the U.S. or Israel to justify this international use of force would be Article 51 of the U.N. Charter, which recognizes the inherent right of individual or collective self-defense.  And this is only if one accepts, as I and most international lawyers do, that there is still a limited right of anticipatory self-defense that is included in the customary law foundations of Article 51.  However, this right of anticipatory self-defense is extremely limited, and can only be used when there is a necessity of self defense that is “instant, overwhelming, leaving no choice of means, and no moment of deliberation …” And even in such a “necessity of the moment,” the attacking force may do nothing which is “unreasonable or excessive.” (Quotes taken from the Caroline correspondence of 1837, between U.S. and British officials)

The international lawyers out there may be thinking that this statement of the law, if true even ten years ago, might now be in need of updating in light of state practice through such incidents at the 2003 invasion of Iraq and the 2007 attack by Israel against Al Kibar. And there are arguments to be made here. My own view is that there have been far too few instances of state practice, coupled with an opinio juris seeking to change the underlying rules of use of force law relative to anticipatory self-defense, and far too little evidence of a generalized acquiescence to such a change by the international community, to find that such a substantive change has indeed occurred. It may be in the process of occurring, but my sense is that from a legal perspective, it would be a very risky gamble at this point to rely on the justification potentially afforded such an act through arguing that it was an attempt to progress an emerging rule of customary law. For one thing, I don’t think that either the U.S. or Israel would make such an argument because, at the end of the day, neither one wants the general rules on the use of force to change in that direction. This is one reason why the U.S. official arguments regarding the 2003 invasion of Iraq were not based on counterproliferation-oriented self-defense, but rather on UNSC Resolutions.

Ok, back to the analysis. The sort of imminence of threat posed by the target of an anticipatory use of self-defense, as required by the Caroline test quoted above, is going to be a very high bar for either the U.S. or Israel to meet under anything like the current circumstances.  Iran has at present made no threats to use nuclear weapons against either the U.S. or Israel. In fact Iran consistently denies it has a nuclear weapons program. And there is no credible evidence that such a nuclear weapons development program currently exists – at least not one that is objectively likely, under current conditions, to lead to the actual manufacture of a nuclear weapon. So with this as the factual context, and again unless something quite radically changes about this factual context, the high bar of the Caroline imminence test will not be met by any U.S. or Israeli strike against Iran’s nuclear facilities. 

In the specific context of international uses of force against nuclear facilities, there are also a number of resolutions adopted by the IAEA General Conference – the highest policymaking body of the IAEA, comprised of representatives from all IAEA member states, today numbering 154 states.  In a number of resolutions, the IAEA General Conference has explicitly declared that attacks against peaceful nuclear installations are prohibited under international law. These resolutions include GC(XXVII)/RES/407 (1983);  GC(XXIX)/RES/444 (1984); and GC(XXIX)/765 (1985).  These IAEA GC resolutions are interesting from an international legal perspective. I’ve thought about exactly how to characterize/classify them in a formal legal sense. I think probably the best way to look at them is in a similar way to how we look at U.N. General Assembly Resolutions.  They are certainly not binding statements of international law per se.  However as resolutions of the plenary policymaking body of the foremost international organization devoted to international law in the area of nuclear energy, I think that IAEA GC Resolutions’ legal significance can be understood in two ways.

First, as treaty interpretive statements, I think that IAEA GC Resolutions are the kind of source conceived of by the drafters of the 1969 Vienna Convention on the Law of treaties (VCLT) as falling under the subparagraphs of Article 31(3), and therefore as being of material significance in treaty interpretation.  And which treaties do they interpret? Well they actually are fairly explicit about this. They say they are interpreting the scope of the IAEA Statute, and the U.N. Charter, to include in the prohibitions established by those treaties a prohibition on international use of force against peaceful nuclear facilities.  They also address Additional Protocol I to the Geneva Conventions, and urge states to make it clear that such attacks on nuclear facilities are in violation of the Protocol’s prohibitions on attacking civilian power infrastructure during armed conflict.

Second, I think that, like U.N. General Assembly Resolutions, IAEA GC Resolutions can be an important source of state practice and opinio juris for the establishment of rules of customary international law. Is there, therefore, currently enough evidence of state practice and opinio juris, inclusive of IAEA GC Resolutions, in order to conclude that attacks against peaceful nuclear facilities are prohibited under customary international law? Well, that sounds like a good question for a law review article, and I really cant do a proper analysis here, so for now I wont use this possibility analytically.

I do think that we can at least say at this point that these IAEA GC Resolutions are material in interpreting Article 51 of the U.N. Charter, and support the interpretive conclusion that the scope of lawful acts of self-defense that may be undertaken pursuant to Article 51 does not include attacks on peaceful nuclear facilities.

Now, I know what you’re thinking. Are Iran’s nuclear facilities “devoted to peaceful purposes”? This is of course a factual question, and I’m sure there’s a lot to be said on all sides. Let me put my thoughts in this form. Even if you think that Iran currently has a nuclear hedging strategy, pursuant to which they are acquiring and maintaining a nuclear energy program for the primary or secondary purpose of having the capability to someday manufacture a nuclear weapon, this can only be a basis for legally determining that Iran’s nuclear facilities are not devoted to peaceful purposes, if you are at the same time prepared to concede that, under the same legal test, Japan’s nuclear facilities are not devoted to peaceful purposes.  (See my previous post on Japan’s nuclear program here, as well as this subsequent GSN article)

I know some of you are going to quickly say that the two situations are distinguishable for this, that, or the other reason. But just in terms of a legal test for determining whether nuclear facilities are peaceful, I don’t think you could come up with one that, under current circumstances, makes Iran’s facilities non-peaceful, without at the same time making Japan’s facilities non-peaceful.  And since I don’t think this is an argument that either the U.S. or Israel would ever want to make, I doubt that this peaceful/non-peaceful distinction is the place lawyers for either government will want to hang their hat.

So, in conclusion, can the U.S. or Israel lawfully attack Iran’s nuclear facilities, barring some kind of radical change in factual context? The answer is no.

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27 Comments on “Can the U.S. or Israel Lawfully Attack Iran’s Nuclear Facilities?”

  1. I think the immediacy test is easier to fulfill than you imply. Israel need not wait until it is about to be attacked – that is an absurd with a nuclear weapon. The immediacy test would ask whether you have more time to react to the threat. If Israel believes that it has reached the last point where it could stop the attack, I think the immediacy test would be fulfilled.

    • Yes, but the test of imminence or immediacy would still require the possibility of an attack: which at the least involves an actual assembled nuclear weapon capable of being launched.

      Most of the political debate presumes we are discussing a strike against facilities which may one day be capable of generating a weapon. That is not ‘imminence’ in any legally relevant sense.

    • Johnboy says:

      No, I don’t think it works that way, precisely because Israel is claiming that Iran’s enrichment program must be stopped NOW because doing so NOW removes the “capability” to make nukes.

      Or, put another way: It is not an attempt to take out the nukes in their silos, precisely because Israel accepts that There Are No Nukes And No Silos, Not Yet.

      You can’t claim “pre-emption” under those circumstances, because what you are really attempting is a “preventive” attack i.e. an attack aimed at maintaining your own superiority of arms.

      An equivalent would have been the Royal Navy sailing into the Baltic in, oh, 1909 and bombarding the German naval bases because – hey, this ain’t no secret! – the Kaiser was planning to build a fleet of Honkin’ Big Battleships, and that’s unconscionable.

      Or the Imperial Japanese Navy justifying a sneak attack on the US Pacific Fleet in December 1941 because America was building dozens – heck, look at ‘em all! – of Essex-class carriers, so as far as Tojo was concerned it’s Now Or Never.

      You just can’t justify launching an armed attack whose objective is to prevent your opponent from arming himself, and especially not when the weapon you are seeking to deny him is one that you, yourself, already possess.

      That’s “aggression”, plain and simple.

  2. Andrew Farran, Melbourne, Australia says:

    It may follow from what you argue that if one found evidence of Iran’s nuclear development that is clearly linked to a non-peaceful purpose, the immediacy test would comes into play. Uranian enrichment well beyond what is required for power generation would/could lead to this.

    • Johnboy says:

      “It may follow from what you argue that if one found evidence of Iran’s nuclear development that is clearly linked to a non-peaceful purpose, the immediacy test would comes into play.”

      No, I don’t agree.

      Nations are entitled to build weapons – even nukes – and if Iran is indeed building a nuke then all it is guilty of is “violating the terms of the NPT”.

      That’s ground from kicking them out of the IAEA, and can even be grounds for being cold-shouldered by the rest of the world.

      But in and of itself it isn’t grounds for going Whammer Jammer on Tehran.

      If it were then the USA would have been justified in going Whammer Jammer on Moscow back in 1946, or going Whammer Jammer on Beijing in 1963 or, indeed, for the USSR to go Whammer Jammer on Israel in the late 1960s.

      After all, Dan has a point: if you want to claim that some universal principle applies to this situation then you really should try running that same ruler over all the OTHER like-minded situations that have occured.

      The trouble with doing that is that you end up with manifestly absurd results…..

  3. Dan Joyner says:

    I agree with Douglas and I think his comment actually responds to Andrew’s comment as well. We must remember that we are not now talking about the law of the NPT, and the question of whether, for example, the discovery of weapons grade HEU in Iran would satisfy the “manufacture” test of NPT Article II. Thats a separate debate, and one which I have written about here: http://jurist.org/forum/2011/11/dan-joyner-iaea-report.php

    In the current post, the issue is the interpretation of Article 51 of the U.N. Charter, and related customary law which requires Caroline necessity and imminence for an anticipatory military act in self defense. And as Douglas says, the statements from U.S. and Israeli officials consistently talk about the necessity of striking before Iran has the capability to build a NW. I agree with Douglas that this is definitionally not an imminent point of threat – when the target state does not even possess NW.

    Specifically now to Andrew’s comment, which refers to the IAEA GC Resolutions which claim to interpret the U.N. Charter to limit the right of self defense to not include attacks on teaceful nuclear facilities: Note that even if nuclear facilities in Iran or anywhere else were to be determined non-peaceful under some reasonable test and with sufficient evidence, that certainly does not in and of itself satisfy the core Article 51 requirements of necessity and imminence for an act of anticipatory self defense. The test doesnt flow backwards like this. The only way in which the IAEA GC Resolutions come into play at all in interpreting Article 51 is in a situation where the core requirements for anticipatory self defense are otherwise met with regard to a target state. At that point the question of which targets within the target state are lawful targets of international use of force becomes relevant, and that is the question that these IAEA GC Resolutions speak to.

    In that sense, there appears to be some overlap on this point between Article 51 of the U.N. Charter, as the IAEA GC Resolutions claim to interpret it, and Additional Protocol I of the Geneva Conventions. Article 51 appears to limit the right of self defense, which is of course a part of the jus ad bellum, to not include attacks on peaceful nuclear facilities. AP I, in the context of the jus in bello, also of course prohibits targeting during armed conflict of civilian objects in Article 52, and, noteworthily, contains specific prohibitions on attacking nuclear power stations and other “installations containing dangerous forces” in Article 56. So as I read the sources, there are important prohibitions in both the jus ad bellum and the jus in bello related to attacking nuclear facilities.

  4. Marco Roscini says:

    Thanks for the very thought-provoking post, Dan. I totally agree with your considerations on anticipatory/pre-emptive self-defence. I also like the parallelism you make between jus ad bellum and jus in bello, although I am not sure that Article 51 of the UN Charter, i.e. a jus ad bellum provision, has much to say with regard to which objectives can be attacked in a self-defence reaction. Under Art. 51, any objective, including non-military ones, can be attacked, providing this is necessary and proportionate with respect to the armed attack. Therefore, should Iran attack Israel or the US, with nuclear weapons or not, they could retaliate by attacking the Iranian nuclear facilities (peaceful or not it does not matter), if this is necessary and proportionate.
    This is all that can be said under jus ad bellum. However, if a state does not want to incur international responsibility, its use of armed force (aggressive or defensive) will have to comply not only with jus ad bellum, but also jus in bello obligations (see ICJ, Advisory Opinion on the threat and use of nuclear weapons), including those you indicate, i.e. Art. 52 and Art. 56 AP1.
    To sum up: in my view, peaceful nuclear installations cannot be attacked under jus ad bellum only if this is not necessary or proportionate (assessment on a case-by-case basis); they can never be attacked under jus in bello, unless they become a military objective and, for states parties to AP1, the Art. 56 conditions are met.

    • Dan Joyner says:

      Thanks for your comment, Marco. I know what you mean about jus ad bellum generally not covering the question of lawful targets of force. I was thinking about that when I was writing my earlier comment above, trying to flesh out what implications the IAEA GC Resolutions I cited have for the interpretation of Article 51. Reading the Resolutions, they say they are interpreting both the IAEA Statute and the U.N. Charter. So I was trying to think through how they would apply to the most obvious provision in this context in the U.N. Charter – Article 51. Even though we normally only talk about the lawfulness of targeting in the context of the jus in bello, I wonder if there is any reason why this cannot also be a consideration of the jus ad bellum if states want it to be so? I guess I’m just thinking through whether one could read U.N. Charter Article 51, in light of these IAEA GC Resolutions (assuming of course that one is persuaded that they fit under VCLT Article 31(3) and are therefore material in interpretation of the U.N. Charter as they seek to be), as providing in this specific context that lawful acts of self defence (anticipatory or not) do not include attacks on peaceful nuclear facilities? Is there a reason why states could not effectively interpret Article 51 to mean this?
      I of course agree with you that the question of targeting nuclear facilities is also covered under the jus in bello as you describe. But could it not also be a matter for the jus ad bellum if states want it to be? I’m still thinking through this and would welcome your and others’ comments.

      • James Green says:

        A great blog post, Dan.

        On the imminence question, I agree with Douglas: obviously states cannot always be expected to wait until they are attacked before they respond in self-defense – especially when we are talking about nuclear weapons – but, equally, the potential to obtain a nuclear weapon in the future falls significantly short of constituting an imminent threat. Indeed, I’d argue that even if is established that a state possesses the capability to launch a nuclear attack (which is not the case with Iran) this may not in itself establish that an attack is imminent. The requirement is an imminent attack, not the possibility of, or even the means to launch, an attack at some indefinable point.

        On the jus ad bellum/jus in bello issue, I generally agree with Marco that we have to be careful not to read jus in bello criteria into an application of the jus ad bellum. While states could of course interpret the rules of self-defense to include non-military targeting as Dan says in his comment, I’m not certain they have actually done so, and until they do we should treat the principle of distinction as a jus in bello calculation. Having said that, it is notable that in the Oil Platforms case in 2003, the ICJ certainly alluded to a military targeting requirement in the context of the jus ad bellum (see paragraph 51 of the merits decision). I’m skeptical as to whether the Court was correct to do that – nor do I think we should read too much into it – but that they took this view in Oil Platforms seems clear and is worth noting.

        A final point: should the US actually attack Iranian facilities, this would presumably be on behalf of Israel (it would be rather a stretch to say that Iranian nuclear arms – assuming that it had them – were a direct threat to the US). Therefore, this would not only be non-imminent anticipatory action (ie, Bush doctrine), it would also be collective non-imminent anticipatory self-defense. The only previous instance that I can think of where any form of collective anticipatory self-defense was claimed was in 1958 by the UK regarding its intervention to ‘protect’ Jordan. That claim was not especially well received by other states, if I recall correctly, and yet I’m sure that the (avowed) threat facing Jordan was more ‘imminent’ than any threat from Iran could be today.

      • Marco Roscini says:

        Hi Dan, I guess states parties are free to interpret the treaty as they like. In the present context, however, I wonder why it should be necessary for a prohibition to attack peaceful nuclear installations, already resulting from jus in bello, to be included in jus ad bellum as well through a reinterpretation of Art. 51. Such attacks are already illegal under the principle of distinction, why do we need another prohibition? Furthermore, jus ad bellum only tells us when armed force can be used, while jus in bello address the question how this force can be used. I would leave jus in bello to do its job.
        I had a quick look at two of the IAEA resolutions you mention (I could not find the 1984 one). The first argues that ‘it would further the cause of peace to extend the prohibition of armed attack so as to protect all nuclear installations devoted to peaceful purposes’. Now, this formulation is bizarre. It refers to a prohibition of armed attack, so not to Art. 51, which does not prohibit it, but limits itself to entitle the victims of an armed attack to use armed force in self-defence. Therefore, it seems rather to relate to Art. 2 (4) of the UN Charter, although the language is narrower, as this provision prohibits all uses of force, not only armed attacks.
        So, if the IAEA resolutions aim to interpret Art. 2 (4), they are pointless, as this provision prohibits all uses of force, regardless of their targets. Only uses of force in self-defence are allowed under Art. 51, but, having to comply with jus in bello, they cannot directly target peaceful nuclear installations, as this is prohibited by the principle of distinction.
        It might be that the purpose of the IAEA is mainly political, i.e. to reaffirm emphatically and specifically that not only the use of nuclear weapons is prohibited, but also causing nuclear contamination by attacking a nuclear facility. Art. 11 of the Pelindaba Treaty, for instance, does this. But, in my view, from a purely legal perspective, there is no need for such reaffirmation, as the prohibition already exists.

  5. Louise Doswald-Beck says:

    The answer is a simple NO. The UN Charter is quite clear and the world would be a better place if governments respected it. Only if Iran is clearly in the process of preparing an immediate attack could it be argued that an armed attack is taking place.

  6. Dan Joyner says:

    I just wanted to thank everyone who has commented thus far on this post. I think this discussion has been really interesting and useful in digging down into these sources and their meaning. I also hope that those reading these comments know the caliber of the commenters, and what a privilege it is to participate in this discussion with experts of their quality. I confess I dont know Benjamin or Andrew personally. But I do know Douglas, Marco, James and Louise, and they are among the very best international lawyers in the world. So its just thrilling for me to be able to engage with them in this forum. This is EXACTLY the kind of discussion among experts that I hoped this blog would facilitate.

    Briefly returning to the substance of the discussion, I appreciate Marco and James’ comments on the Jus ad Bellum / Jus in Bello distinction, and I think they make solid and persuasive arguments about preserving the distinction between the two areas of law. Thinking about it, I suppose it appears to me that there are then essentially three alternatives for how to treat the IAEA GC Resolutions I cite to:

    1. Basically ignore them, or consider them, as Marco suggests, to be essentially redundant to law already on the books in the Jus in Bello.

    2. Consider their importance as treaty interpretation sources to apply to the Jus ad Bellum, and specifically to Article 51 of the U.N. Charter, as I have argued above.

    3. Consider their importance as treaty interpretation sources to apply to the Jus in Bello, and particularly to the targeting rules in AP I. This option would be a bit creative, because the Resolutions themselves dont actually say that they are interpreting the Geneva Conventions, but rather that they are interpreting the U.N. Charter and the IAEA Statute. However, as James and Marco have pointed out, it would appear to be more consistent with the fundamental structure and organization of law in this area, in which the issue of distinguishing military and civilian objects, as well as objects capable of producing dangerous substances, in targeting during armed conflict is handled under Jus in Bello sources.

    I think that Option 3 is persuasive, and that these Resolutions could in fact add clarification to existing provisions in the Geneva Conventions and particularly in AP I. So I suppose I would prefer that option to Option 1. And I agree that it would make more sense from a structural point of view than Option 2. Although, as I note above, it would mean imposing some interpretive discretion by a tribunal or by us publicists in order to channel the interpretive influence away fom where the Resolutions put it, and onto where it makes more sense. But in the end that doesnt particularly bother me.

    I did have the following thought, though. If it was to be determined that these IAEA GC Resolutions and their interpretation of a prohibition on attacking peaceful nuclear facilities, is only to apply to the Jus in Bello, might that limit their application in undesirable ways, as compared to determining that their interpretation applies also to the Jus ad Bellum? I ask this because in recent years there have been so many attempts by states to argue that their cross-border international uses of force are not in fact governed by the Geneva Conventions and the Jus in Bello generally. We all know the lengths to which the U.S. and Israel have gone to argue that the Jus in Bello hasnt applied in significant ways to, e.g., the war in Afghanistan; prisoners at Guantanamo Bay; predator drone strikes in Pakistan; military strikes in Gaza and in the West Bank. So I’m just wondering if there might be situations in which the Jus ad Bellum would clearly apply to a situation, but the application of the Jus in Bello might be more controversial, and therefore where it would be prudent to have the clear prohibition on attacking peaceful nuclear facilities in the Jus ad Bellum as well.

    Take for example a strike by Israel against Iran’s nuclear facilities. It would probably happen in 1-2 days (at least the first set of strikes by Israel would), and after that its hard to say what would happen. So in that case, it would be hard for Israel to argue that the Jus ad Bellum doesnt apply. But could they potentially make an argument, based on the intensity and duration of the conflict, that it didnt actually amount to an armed conflict within the meaning of the Geneva Conventions, and thus didnt trigger the obligations of the Jus in Bello? I dont know, I guess I can see that argument being made. So if only the Jus ad Bellum and not the Jus in Bello clearly applied, wouldnt it be prudent to follow the ICJ’s lead in the Oil Platforms case and determine that Article 51 of the Charter extends in some cases to targeting questions, and that in this case, as a result of the IAEA GC Resolutions (recalling particularly that both Israel and the U.S. are members of the IAEA GC), Article 51 could not serve as a legal basis on which to justify attacks against Iran’s nuclear facilities?

    • Marco Roscini says:

      Thank you all for the great discussion. Dan, you make a very good point with regard to cross-border uses of force that might be outside the reach of international humanitarian law. This is related to the debate of whether all uses of armed force are also armed conflicts. Unlike the US, the ICRC believes so (correct me if I am wrong, or if the ICRC has changed its position), so that no use of armed force in international relations, however limited, can escape the application of jus in bello. The minimum threshold of violence requirement only applies to non-international armed conflicts.
      But let’s assume that there are limited cross-border uses of force not regulated by international humanitarian law. Wouldn’t it be useful in such cases to use Art. 51 to prohibit attacks on peaceful nuclear installations? My tentative answer would be that, even in that case, it is not necessary. If the attack on the nuclear installation is a first use of force (including an alleged pre-emptive ‘self-defence’ action where the armed attack is not imminent), then it is prohibited by Art. 2 (4) of the UN Charter, whatever its target. If, on the other hand, the attack on the nuclear installation is in the context of a (proper) self-defence reaction against an armed attack, then I hardly see how this armed action-reaction could be qualified as a limited use of force, and not as an international armed conflict. After all, the existence of an armed conflict is a factual situation, and does not depend on how the belligerents qualify it.
      I would also not read too much in para. 51 of the ICJ’s Oil Platforms Judgment. In my view, what the Court says here, perhaps not in the clearest way, is what it had already said in the Advisory Opinion on Nuclear Weapons (see, e.g., para. 34), i.e. that any use of force in self-defence has to comply not only with jus ad bellum requirements (armed attack, necessary and proportional reaction), but also with jus in bello (principle of distinction in targeting). There is nothing in that paragraph suggesting that the Court is reasoning only from the perspective of jus ad bellum.

    • Johnboy says:

      “But could they potentially make an argument, based on the intensity and duration of the conflict, that it didnt actually amount to an armed conflict within the meaning of the Geneva Conventions,”

      Err, Dan, doesn’t Iran also get a say regarding the intensity and duration of the conflict?

      After all, while it only takes one guy to start a fight, it defintiely requires that BOTH dudes agree to stop brawling before, you know, that brawl is over.

      Israel: [Whammer Jammer!] [Crash Boom Bang]
      Israel: There, it’s all done ‘n’ dusted…..
      Iran: I Don’t Think So Sonny Jim!!!!
      Iran/Israel: [Biff!] [Bang!] [Kerpoweeeeeeee]

      What then becomes of any Israeli claim that “this doesn’t actually amount to an armed conflict”?

      Do they go for the Chutzpah Double Plus Good claim that because Tehran has the nerve to actually fight back then – obviously! – it is the Iranians who are the aggressors?

      • Dan Joyner says:

        Hi Johnboy, great to see you here. You make a fair point that the duration and intensity of the potential conflict would of course not just be up to Israel, and would be very unpredictable. The received wisdom seems to be that an Israeli first strike would itself only likely last one or at the most two days. Thats what I was thinking about when I wrote the above. What happens the next day is anybody’s guess, and I know its been thoroughly gamed out every which way by people both in and out of the military. I personally do not see Iran just doing nothing the next day. I personally think Iran would send missiles showering down on Israeli cities, and would also likely unleash Hizbollah and Hamas proxies. And where that all ends God only knows.

        I recently read a striking and rather poignant quote from Ehud Olmert in an article on CNN (http://www.cnn.com/2012/07/27/politics/romney-trip-jewish-vote/index.html). Block quoting now from the article, in which Olmert’s quote appears at the end:

        “That American Jews are not shy about offering opinions on what Israel should do vis a vis this or that tends to annoy Israelis who say, “We live here, we take the risks, we made the commitment, so please, regardless of whether you visit or whether you send a check, visit, don’t presume to tell us how to live.” In that ADL poll, 61% of Israelis say that American Jews have a right to freely and publicly criticize Israel and Israeli policies under some or all circumstances, while 36% say they do not.

        Former Israeli Prime Minister Ehud Olmert displayed this reaction before an audience of American Jews when, as The New York Times reported, he was booed when he suggested that military action against Iran be a response of last resort.

        “As a concerned Israeli citizen who lives in the state of Israel with his family and all of his children and grandchildren. I love very much the courage of those who live 10,000 miles away from the state of Israel and are ready that we will make every possible mistake that will cost lives of Israelis,” he chided.”

  7. hossein says:

    Thank you for your insightful post, Dan. I think that prohibition of use of force as reflected in art. 2(4) of the charter well-known as a jus cogens norm. So, any contrary practice –in the past or at a later date-will be null and void ab initio.

  8. cuniverse says:

    Now lets argue it the other way ” Does Iran have the ligitimate right to defend itself ” and what are its rights to do so ? Under the same conditions that America, and Israel has?

  9. cuniverse says:

    Israel bombed Iraq, nothing said ,Bombed Syria,nothing said. Why not Iran ? nothing would be said either. Its only the Iran’s’ retaliation that is stopping it. “ the cost to the worlds economics calculated to be dangerous at this time. However if it could be turned into an asset all systems would go green for a hit.

    • Johnboy says:

      “Israel bombed Iraq, nothing said ,Bombed Syria,nothing said.”

      Well, actually, quite a bit was said about the bombing of that Iraqi reactor in 1982, including one of the very rare occasions where the USA didn’t veto a UNSC resolution that roundly condemned Israel.

      As for the Syrian bombing, well, remember that
      (a) Syria refused to admit that the building was a reactor and
      (b) Israel refused to admit that those planes were Israeli.

      The combination of those two meant that it was difficult to get any traction regarding any public criticism of Israel, precisely because you first have to provide the evidence that it was Israel that had done it.

      “Why not Iran ?”

      Well, I’d suggest that it is because a single air raid on a pin-point target is not at all the same thing as a bombing CAMPAIGN against multiple targets.

      A CAMPAIGN would require Israel to not only bomb the targets themselves but also to engage and defeat the entire air-defense system of Iran, including its C&C.

      That’s not just “a raid”, it is “a war”.

  10. [...] An exception to this rule can be found in Article 51 of the Charter: the right of self-defence if an armed attack occurs against a Member. But this is irrelevant to the Iranian nuclear dispute at the present juncture, for reasons set out most recently by Dan Joyner. [...]

  11. [...] An exception to this rule can be found in Article 51 of the Charter: the right of self-defence if an armed attack occurs against a Member. But this is irrelevant to the Iranian nuclear dispute at the present juncture, for reasons set out most recently by Dan Joyner. [...]

  12. Lord Byng says:

    There’s an issue not addressed in this discussion: if “capability” is accepted as an extension of the imminence doctrine, how far do you take that? A great deal of Iran’s “capability” with respect to potential nuclear weapons resides in the heads of certain Iranians.

    A partial answer is provided by Netanyahu, who has stated that Iran should not be permitted the technology, and referred to research programs in universities. Does this mean that Israel would have the right to strike Iran to eliminate Iranian physicists? That Iran must be required to ban the teaching of physics in universities, colleges, or even high schools? According to Netanyahu, yes: none of these things are acceptable. Iran cannot be trusted with nuclear knowledge.

    Given (the claim that) Iran is led by irrational, messianic leaders, can Iran be permitted access to any modern technology at all? Since no reciprocal diplomacy is acceptable to Israel, a preventive strike would have to ecompass and accomplish the death of all individuals in Iran with knowledge of nuclear technology.

    Otherwise Iran would retain the “capability” that Israel says is unacceptable.

    This drawing of “preemption” driven by “capability” leads to a wholly impractical doctrine: that a country can be designated for permanent removal from the ranks of technically advanced countries based not on physical weapons, or aggressive action, but instead on the assertion of some other country that it feels threatened by the level of technology present in the other country.

    Iran has been so designated by Israel and the United States, and the sanctions against it are based on no facts- just Israel’s assertion that Iran’s possession of certain knowledge is an unacceptable threat. The sanctions can’t be lifted, ever, because Iran can never be proven to have given up this knowledge, so Iran will be removed from the roll of modern nations by economic blockade, and over time, returned to a pre-industrial state, where their knowledge of physics will be irrelevant.

    So the question of whether Israel can legally attack them or not is somewhat moot; attack or not, Iran is well on the way to being crushed by a very effective form of economic warfare, on equally indefensible grounds: basically, and simply, that they, because they do not approve of Israel, have been marked for deletion by Israel, and must be destroyed, regardless of whether they actually have the means or the intention to do anything to Israel.

  13. [...] centrifuge away from eradication. In fact, it is Israel that consistently threatens Iran with an illegal military assault, not the other way [...]

  14. [...] uranium. And whilst Iran asserts that their nuclear programme is for peaceful means it would be illegal for any state to attack nuclear installations used for peaceful means. Israel’s move is [...]

  15. [...] of a potential military strike against Iran’s nuclear facilities by either Israel or the U.S. here and here.  As I said, when I have analyzed this question, my conclusion has been in agreement with [...]

  16. [...] For my views on the question of whether an attack by Israel on Iran’s nuclear facilities would be legally justified, see my prior posts here and here. [...]


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