The Myth of Surgical Strikes on Iran’s Nuclear Facilities
Posted: October 19, 2012 Filed under: Nuclear 11 CommentsI 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.
Arms Control Law 
Well for starters, I don’t think an attack on Iran should be automatically referred to as “pre-emptive” 🙂
Certainly true.
Dan, excellent post on an interesting issue. I agree with you that the principle of distinction would prohibit any attack on a civilian nuclear installation, at least as long as it does not become a military objective, i.e. objects ‘which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage’ (Art. 52 (2) AP1). I am however not so sure when you say 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’. If the nuclear installation has become a military objective according to the above definition, the target can be attacked and destroyed or neutralized, even though this might result in severe civilian casualties and destruction of property (I am not taking Art. 56 into account here). What would be forbidden (and a war crime) would only be an attack on the nuclear installation-turned-into-military objective that would cause, or would be expected to cause, ‘incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated’ (Art. 51 (5) AP1), i.e. an attack that causes, or is expected to cause, a disproportionate number of casualties. I am afraid international humanitarian law can be rather cynical.
If the Iranian facilities are indeed ‘nuclear electrical generating stations’, Art. 56 AP1 would in theory also apply. However, this provision has some loopholes. Installations containing dangerous forces can still be attacked if the attack is conducted in a way not to release the dangerous forces and not to cause consequent severe losses among the civilian population, and if the installation is used in ‘regular, significant and direct support of military operations’ (this is stronger than the ‘effective contribution to military action’ required by Art. 52 (2)). Even then, however, the attack must be the only feasible way to terminate the support to military operations and all practical precautions must be taken to avoid the release of dangerous forces. In any case, as you say, the problem with applying Article 56 is that neither the US nor Israel are parties to it, and they both claim that this provision does not reflect customary international law (whatever the ICRC might think of it).
Other limitations on the targeting of both military and civilian nuclear installations might derive from Articles 35 (3) and 55 AP1 (that prohibit ‘methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment’) and from the law of neutrality, to the extent that radioactive contamination would reach neighbouring neutral states. But again, the problem with applying Articles 35 (3) and 55 to the Iranian case is that their customary status is dubious.
Thanks Marco, thats a great comment filling out the analysis and offering some different points. Your noting of AP1 Articles 35(3) and 55 is very useful and indeed relevant. I think I can agree with your conclusions about the application of AP1 Article 56, and related CIL to this situation. The ICRC in its Rule 42 on CIL in this area does seem to be less clearly and definitively prohibitive than the wording of AP1 Article 56 itself. That being said, in light of the various sources that you and I have identified, taken together, I would argue that under current circumstances in which there is no evidence that Iran’s existing nuclear facilities are presently supporting military activities, they would not qualify as legitimate military targets. And further I dont see how they could be targeted by airstrikes in any way that wouldnt cause the release of dangerous forces, that would do immense harm to human life and to the environment. So I think that even with its flexibility, CIL on this question would prohibit these attacks. So taken together, I think the conclusion is still correct that under current circumstances, airstrikes on Iran’s nuclear facilities by the U.S. or Israel would be a violation of international humanitarian law.
I agree. The fundamental point is that, unless they are a ‘military objective’ under the customary definition contained in AP1, the Iranian nuclear installations cannot be attacked under international humanitarian law. And even if they were, the principle of proportionality would still have to be complied with.
Specific to the issues encountered if a _nuclear_ bunker buster attack is being considered to get at deeply buried targets:
http://www.ucsusa.org/nuclear_weapons_and_global_security/nuclear_weapons/technical_issues/nuclear-bunker-buster-rnep-animation.html
Very relevant and useful. Thanks Yousaf.
Foreign Affairs on how a replay of Iraq is now occurring on Iran:
http://www.foreignaffairs.com/print/135428
During the NATO bombing of Serbia, the US attacked and destroyed the headquarters of Serb Radio & TV, killing several journalists employed there. The official justification was that the station was sending out “propaganda” and kept Milosovic in power: “If the media is the nerve system that keeps a war-monger in power and thus perpetuates the war effort, it may fall within the definition of a legitimate military objective.” So there seems to be a great deal of practical wiggle room in the definition of terms such as “effective contribution to military action” and “definite military advantage” — and also in the end, who will prosecute the violators anyway?
http://tinyurl.com/9a8spar
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