U.K. Attorney General Gives Formal Secret Advice that an Attack on Iran Would Violate International LawPosted: October 25, 2012 Filed under: Nuclear 2 Comments
Yousaf Butt apprised me of this today, for which I am grateful. Its a story in the Washington post here that itself cites a Guardian story here. Cribbing now from the Guardian story:
The Guardian has been told that US diplomats have also lobbied for the use of British bases in Cyprus, and for permission to fly from US bases on Ascension Island in the Atlantic and Diego Garcia in the Indian Ocean, both of which are British territories.
The US approaches are part of contingency planning over the nuclear standoff with Tehran, but British ministers have so far reacted coolly. They have pointed US officials to legal advice drafted by the attorney general’s office which has been circulated to Downing Street, the Foreign Office and the Ministry of Defence.
This makes clear that Iran, which has consistently denied it has plans to develop a nuclear weapon, does not currently represent “a clear and present threat”. Providing assistance to forces that could be involved in a pre-emptive strike would be a clear breach of international law, it states.
“The UK would be in breach of international law if it facilitated what amounted to a pre-emptive strike on Iran,” said a senior Whitehall source. “It is explicit. The government has been using this to push back against the Americans.”
Sources said the US had yet to make a formal request to the British government, and that they did not believe an acceleration towards conflict was imminent or more likely. The discussions so far had been to scope out the British position, they said.
“But I think the US has been surprised that ministers have been reluctant to provide assurances about this kind of upfront assistance,” said one source. “They’d expect resistance from senior Liberal Democrats, but it’s Tories as well. That has come as a bit of a surprise.”
This is a big deal, that the U.K. Attorney General has issued this formal advice, and that on the basis of it the U.K. has denied the U.S. access to its military bases for purposes of a strike on Iran. I certainly agree with the conclusion to which Dominic Grieve and his team have come in this advice – which is a refreshing turn historically, following the infamous legal advice given in 2003 by then U.K. Attorney General Lord Goldsmith, legally justifying the invasion of Iraq (although I remember well that the rumors floating around U.K. international legal academia – of which I was a member at the time – were that then LSE Professor, now ICJ Judge, Christopher Greenwood had essentially ghost written that opinion for Lord Goldsmith. I have no idea if that’s true, but it made sense to me when I read the opinion at the time, because it was clearly written by an international legal expert, which Goldsmith was not).
I have recently written on the legality 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 that of the U.K. Attorney General. It’s hard to judge the analysis in the AG’s opinion, because it hasn’t been made public. I’m confident, however, that it rests on sounder legal foundations than the reasoning alluded to in the Guardian article, i.e. that Iran doesnt currently represent a “clear and present threat.” That’s not an international legal standard, nor even a legal term of art. It sounds alot like a Tom Clancy book that was made into a pretty good Harrison Ford movie, but that’s beside the point. But again, I trust that if/when we actually get to read the AG’s opinion, it will be much more solidly grounded in international law.
Nor would such an attack be “pre-emptive” but what’s the point anymore of repeatedly pointing that out anymore since it seems the media have already decided that any attack by Isreal or the US is automatically characterized as such.
Well, be fair: if the press used the correct term (“preventive”) then they’d have to explain to their puzzled readers the difference between a “preventive strike” and a “pre-emptive strike”.
They don’t want to do that, precisely because the moment you explain that difference even the most uninformed reader will then exclaim “Hey! How can a preventive strike be legal?”
And the answer is, without a shadow of a doubt: “It isn’t”.