The Myth of Surgical Strikes on Iran’s Nuclear FacilitiesPosted: October 19, 2012
I just saw what I think is an important, practical contribution to the debate on preemptive military strikes against Iran’s nuclear facilities. The article is at Time.com and is entitled “The Myth of Surgical Strikes on Iran,” but it’s specifically about the potential practical implications/consequences of an Israeli airstrike on Iran’s nuclear facilities. I really encourage readers to take a look at it. It gives some very specific analysis of the likely human casualties resulting from airstrikes on Iran’s nuclear facilities. The numbers are staggering.
I don’t consider myself to be an expert on international humanitarian law – the law governing armed conflict – although I’m trying to add it to my analytical competencies. But it seems to me that there are pretty solid legal grounds on which to base a conclusion that, because of the locations and the inherently dangerous attributes of these targets, along with their essentially civilian infrastructure character, any strike against Iran’s current nuclear facilities, no matter the reasons for the strike or even arguendo the character of the facility as a legitimate military objective, would be unlawful under international humanitarian law. This is something that I would welcome comments on from my colleagues who have more expertise on IHL issues – Dieter Fleck, Marco Roscini and Gro Nystuen come quickly to mind.
Though not a specialist in this area myself, even I know that the 1949 Geneva Conventions and their Additional Protocols of 1977 forbid the targeting of civilian objects during armed conflict. This includes objects of civilian national infrastructure indispensable to the survival of the civilian population, such as civilian power generating stations. Specifically, Additional Protocol I provides in Article 56 that a number of different works and installations containing dangerous forces, including explicitly “nuclear electrical generating stations”:
shall not be made the object of attack, even where these objects are military objectives, if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population. Other military objectives located at or in the vicinity of these works or installations shall not be made the object of attack if such attack may cause the release of dangerous forces from the works or installations and consequent severe losses among the civilian population.
Article 56 goes on to provide that this special protection from attack shall cease:
for a nuclear electrical generating station only if it provides electric power in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support
Doesn’t this proibition fit this set of facts pretty precisely? I know that not all of the facilities in question in Iran are nuclear electric power generating stations themselves, but they are all part of the same industrial complex that is necessary to have nuclear electric power generation – i.e. they are all necessary parts of the nuclear fuel cycle – and so I would argue that they are all essentially part of the same nuclear power generation “station” in that sense. And certainly the underlying rationale perfectly applies regarding the “release of dangerous forces and consequent severe losses among the civilian population” from the targeting of these facilities. The official commentary to AP I is even more specific about the constitutive elements of such stations, the attack of which would cause the relevant dangerous forces, explicitly listing among them “stocks of radioactive products . . . and in this way releasing lethal radiation.” Each of the nuclear facilities in Iran that would be targeted would have on their premises such stocks of radioactive products, and as the new report makes clear, attacks on this facilities would very likely release lethal radiation affecting civilians in surrounding areas. I would therefore think that the targeting prohibitions in AP I would cover all of these nuclear facilities. But again, I’d be very interested in what my colleagues think about this.
I know there may be some complications to this analysis, arising from the fact that Israel is not a party to AP I, and neither is Iran. However, the ICRC study of customary international humanitarian law includes the essentials of the law in AP I Article 56, in its Rule 42.
My sense overall is that the likelihood of an Israeli attack on Iran’s nuclear facilities in the near term is decreasing, for a number of reasons. I certainly welcome this. But there’s still enough media chatter on the idea to make this new report an important contribution.