Israeli Strike in Syria

I’m sitting at a cafe in the Marais district of Paris, waiting for my entrecôte to arrive, and just read about the Israeli airstrike in Syria, apparently targeting a shipment of missile parts which the Israelis expect were heading to Hezbollah for use against Israel.

I thought I would just give my quick reaction to the incident, and others can weigh in too. My opinion is heavily influenced by the current state of chaos in Syria, and indeed I’m quite confident that this circumstance is the sine qua non of the Israeli government’s extraordinary decision to strike within Syrian territory.
From a strictly formal international legal perspective, I suspect that this strike is, notwithstanding the current unrest in Syria, still a violation of Article 2(4) of the UN Charter, and is not justified by Article 51 or the customary law principle of anticipatory self defense.
However, this is a situation in which I completely understand Israel’s motivations and reasoning, and I think that those reasons are compelling.
So my quick assessment of the incident is that, while it was probably technically illegal, I would have done the same thing under these circumstances if I was the Israeli PM.


Robert Kelley – Next Steps Forward for the IAEA and Iran

I am honored, and feel truly privileged to welcome Robert Kelley as a guest contributor to ACL. Bob is a nuclear engineer and a veteran of over 35 years in the US DOE’s nuclear weapons complex, most recently at Los Alamos. He managed the centrifuge and plutonium metallurgy programs at Lawrence Livermore National Laboratory, and was seconded by the US DOE to the IAEA where he served twice as a Director in the nuclear inspections in Iraq, in 1992-1993 and 2002-2003. He is currently an Associate Senior Research Fellow at the Stockholm International Peace Research Institute.


Next Steps Forward for the IAEA and Iran

Robert Kelley

The IAEA and Iran’s government have developed a tense working relationship for which both bear blame. On several occasions, Iran has failed to declare nuclear fuel cycle-related activities in a timely way, as it is obliged to do under its agreement with the agency. At best this can be seen as bad faith in the relationship; at worst, deliberate withholding by Iran.

Beyond that, however, the IAEA is trying to expand its inspection program in Iran by demanding access to undeclared facilities. These requests are on shaky ground, partly because since Iran has not ratified the Additional Protocol they go well beyond the IAEA’s clear rights and authorities, and partly because they are based upon information that is flimsy and suspect.

By openly providing a questionable technical basis for inspections the IAEA is leaving itself open to a serious loss of credibility as a technical organization. While the IAEA seems to do a good job of accounting for nuclear materials around the world, its traditional area of expertise, there is no external oversight of this process. If there are problems with IAEA’s methods and performance they would likely only be revealed by complaints from a member state itself. Only the IAEA Board of Governors can adjudicate this.

Outside the area of materials accountancy, in the inspection of facilities deemed to be part of a suspect nuclear program, the IAEA has drifted far from its core competencies. In Syria, for example, the IAEA was successful in collecting uranium particles at a site that had been “sanitized.” But then the IAEA cavalierly dismissed Syrian explanations that the natural uranium particles found at a bombed suspect site came from Israeli missiles. The agency’s claims that the particles are not of the correct isotopic and chemical composition for missiles, displays an appalling lack of technical knowledge about military munitions based on information from questionable sources.  If the IAEA is to be respected it must get proper technical advice.  For example deep earth penetrating bombs, not missiles were used in Syria.

In the case of Parchin, the IAEA is relying upon secret information provided by unspecified states or parties. A great deal of the information has been selectively leaked to create an impression that the agency has significant reason to want to visit a particular building, among hundreds at the site. The IAEA bases its request upon a suspicion that that the building was used for experiments involving explosives and uranium to understand the hydrodynamic behavior of a neutron initiator for a nuclear explosive. Such experiments, if they occurred, would use a few grams of uranium in a huge chamber. They would probably be a violation of Iran’s nuclear safeguards undertakings. However the IAEA has failed to make a convincing case that these experiments took place. And it has added confusion by saying the most important experiments involving test explosions took place at an Iranian town called Marivan, 500 kilometers away.

Some of the experiments described by the IAEA do not and cannot use uranium. The results would be inconclusive if they did. So the basis for the IAEA’s requests continues to be opaque. The timeline for the alleged experiments is also highly suspect, with claims that massive experimental facilities had been fabricated even before they had been designed, according to the available information. The IAEA work to date, including the mischaracterization of satellite images of Parchin, is more consistent with an IAEA agenda to target Iran than of technical analysis.

Further clouding the picture is Iran’s massive redevelopment of the area around the buildings at Parchin the IAEA wants to visit, which were largely inactive for many years. This activity began with a sudden flurry after the IAEA first asked for a visit in 2012. Bulldozers and other vehicles appeared at the suspect site delivering or removing equipment, moving roads, bulldozing an area immediately east of the suspect building, and water was observed coming from one building. The sudden activity heightened suspicion that Iran was trying to hide something but it really doesn’t prove anything.

For one thing, water has been observed coming from this building and an adjacent one in past years. Moreover, sensitive environmental samples are not collected in buckets of dirt as the bulldozing suspicions might have made people think. The IAEA will not be taking soil samples around the Parchin buildings because it would be counterproductive — ordinary soil contains considerable particles of uranium which interferes with the very sensitive process of detecting nanoparticles of man-modified material. Inspectors will, instead, take very clean wipes from carefully chosen spots inside the buildings of interest. If Iran has done a massive amount of cleaning and painting inside the building to hide uranium, the IAEA will have to work harder to collect useful samples. But it can be done and traces of uranium are hard to conceal.

However, the IAEA’s continuing requests to visit a military site for tenuous reasons are an irritant to Iran and delaying a resumption of talks between the P5+1 and Iran. The IAEA should do some serious rethinking about the technical validity of its request. Based upon the evidence provided so far and the extensive leaks, there is little to suggest that Parchin is the place for IAEA to take a stand.

(A version of this article first appeared in the Nuclear Intelligence Weekly, Vol. VII, No. 3, January 18, 2013)

Lifting the Moratorium on “Gain-of-Function” Scientific Research on Highly Pathogenic Avian Influenza H5N1

Toward the end of 2011 and the beginning of 2012, a global health and security controversy erupted about scientific research on highly pathogenic avian influenza H5N1 that, in brief, managed to increase the transmissibility of the H5N1 virus. Scientific, health, and national security experts hotly debated whether conducting and publishing such “gain-of-function” research was appropriate. Part of the security concerns involved fears that this kind of research could provide governments and terrorist groups with blueprints for making biological weapons, and the Biological Weapons Convention (BWC) became part of the discourse about the research controversy and what to do about it.

In response to the controversy and the difficult questions it raised, the international community of influenza researchers agreed to a voluntary moratorium on similar research until the issues had been examined and the benefits of such research were better understood. In January 2013, a group of 40 influenza researchers announced they were resuming their research, arguing the moratorium had served its purpose and that they had a public health responsibility to continue this type of research. More specifically, these scientists asserted that researchers who have approval from their national authorities to conduct such research under appropriate biosafety and biosecurity standards can and should proceed with their work. This action was taken before the U.S. government finalized a new framework for assessing future “gain-of-function” influenza research discussed at a meeting of stakeholders in December 2012.

However, as noted in media reports about this action, it is not clear that the acrimonious debate produced consensus on key questions the controversy raised. Having followed this debate closely since it erupted, it is not clear to me how international consensus could have been produced on these questions without stronger international governance mechanisms. The involvement of the World Health Organization (WHO) has been both controversial (e.g., its widely criticized meeting in February 2012 among stakeholders) and necessary (e.g., in developing non-binding biosafety guidelines for such research, which WHO released in July 2012).

In terms of the BWC, this problem proved awkward because the BWC permits peaceful scientific research, and no one questioned the peaceful motives of scientists conducting “gain-of-function” research on H5N1. The BWC process had discussed “dual use” challenges posed by advances in the biological and life sciences for years, but, when the H5N1 controversy rumbled on at the same time as the BWC review conference in December 2011, the review conference made no particularly useful contribution to the debate. For many experts, this outcome reinforced the view that the BWC is not an effective forum for tackling how the “dual use” problem intersects with the threat of biological weapons proliferation or bioterrorism.

Although many people involved in this debate believe that the debate itself has been productive, identifying any material change in how “gain-of-function” research on H5N1 is handled is difficult. Before the controversy erupted and the moratorium put in place, national governmental authorities made decisions about whether to approve such research and under what conditions it must be conducted. As noted above, the scientists supporting the end of the moratorium viewed national governmental approval and regulation of research projects sufficient for moving ahead. Plus ça change, plus c’est la même chose?

The next important development in this saga will come when the U.S. government releases its finalized framework for assessing whether to approve and fund “gain-of-function” research on H5N1. The U.S. has been the biggest funder of this research in the past, so, assuming the U.S. government continues to have this funding power, its new rules could exert influence well beyond the American scientific research community. With the public comment period on the proposed framework now over, the US government plans to finalize its new rules in the next few months. Stay tuned . . .

Thank You, Senator Lugar. And Welcome, Professor Lugar

When I was an undergraduate student years ago, I had the opportunity to have lunch with a U.S. senator from Indiana named Richard Lugar–someone about whom, I now cringe to admit, I did not know much at the time. The Cold War was still frigid, but the world was not far from momentous changes few saw coming. I remember clearly my reaction to Senator Lugar–here is someone who thinks deeply about U.S. interests and cares about American responsibilities beyond our shores.

In his long career in public service, Senator Lugar exhibited those traits in many contexts, but perhaps most famously in his work to prevent the proliferation of weapons of mass destruction (WMD). In the very early 1990s, with his colleague Sam Nunn, Senator Lugar created the Cooperative Threat Reduction Program (CTRP), widely known as the Nunn-Lugar program, which is hailed as one of the most significant U.S. national security policies of the post-Cold War period. The program was effective in not only achieving its initial objective of helping states emerging from the Soviet Union’s collapse keep nuclear weapons and related materials and capabilities from falling into dangerous hands but also expanding into chemical and biological weapons and beyond the former Soviet states. In December 2012, the U.S. government and the non-proliferation community celebrated the 20th anniversary of the CTRP.

This milestone asks us not only to reflect on the past but also to probe the future. Senators Nunn and Lugar know better than anyone that the CTRP has not made WMD proliferation a relic of another time and place. Indeed, the CTRP’s expansion beyond nuclear issues illustrates both the dangerous legacy of chemical weapon arsenals and the difficult task of managing “dual use” knowledge and capabilities in the biological realm. Further, the CTRP approach is predicated on mutual political commitment to cooperation, a prerequisite not present in important contexts of proliferation concern, such as Pakistan, Syria, North Korea, and Iran. Worries have arisen with Russia too given its declaration in the fall of 2012 that it would not renew its CTRP agreement with the United States in 2013 without changes to the arrangement–a disconcerting development given the scale and seriousness of the remaining WMD threat reduction agenda in Russia.

Problems with Russia and the inhospitable political conditions for cooperative threat reduction in other contexts of proliferation concern do not spell the “end of Nunn-Lugar.” However, we are entering a potentially challenging phase for this strategy that requires thinking hard about U.S. interests and caring about American responsibilities. Cooperative WMD threat reduction might become increasingly complicated for external and domestic reasons.

Externally, maintaining progress with CTRP efforts faces shifting national interests, characterized foremost by Russia’s re-evaluation of its arrangement with the United States. The risk of such shifts is not the sudden embrace of WMD proliferation; rather it is the danger of slackening focus on the urgency of threat reduction. In addition, cooperative threat reduction strategies might well find future crises that involve proliferation concerns extremely hard to affect. Just think of the proliferation fears that experts have about the collapse of the Assad regime in Syria, the implosion of the North Korean regime, or the potential cascade effect of Iranian development of nuclear weapons.

Domestically, commemorating two-decades of CTRP success should not underestimate looming political problems. Richard Lugar is no longer in the Senate, which raises questions about who will assume the burden of leadership he bore effectively on this issue for so many years. And leadership will be needed because the United States is facing wrenching choices at home and abroad as the moment of reckoning with its worsening fiscal crisis is upon the nation’s political institutions. Senator Lugar’s defeat in a primary election demonstrates the lack of traction his statesmanship on WMD proliferation had with voters–a cautionary tale for any politician operating in an extremely polarized country fixated on domestic issues and living well beyond its fiscal means.

In January 2013, my employer, Indiana University, named Richard Lugar a Distinguished Scholar and Professor of Practice in its new School of Global and International Studies. Professor Lugar (how strange that sounds) is donating his senatorial papers to Indiana University, a gift that will provide a treasure trove of resources for research on many issues, but especially his dedication to reducing the dangers of WMD proliferation. We still have much to learn . . .

Why Can We Only Break International Law in order to Torture and Kill People and not in order to Help Them?

I was just coming home from driving my daughter to school, when I heard a story on NPR about how the US has been encouraging the opposition coalition in Syria politically, and in particular encouraging moderates to become involved, but that now the US is failing to make good on promises it has made to provide actual material support to the opposition, and through it to the suffering Syrian people, and in so doing is undermining those very moderate elements.  The reason for this failure to follow through on promises? Well, John Bellinger came on the radio to say that international law forbids the US from becoming involved in the internal affairs of another country, and that because the US still recognizes the Assad regime as the legal government of Syria, international law forbids giving material aid – even simply humanitarian aid – to the Syrian people through the opposition.

I’m less interested in whether Bellinger’s assessment of law is correct as I am with what seems to me to be quite a sickly ironic fact of US foreign policy. We only break international law when we think we have to kill people or torture them for national security purposes. Then the cause is important enough that international law doesn’t matter.  Iraq, Guantanamo, Bagram, assassinations in Iran, drones in Pakistan – the list could go on.  But when we are faced with humanitarian crises when our support could help thousands to live and NOT die – Rwanda, Darfur, Syria, etc. – we stay our hand, because of conservative interpretations of the niceties of international law. Now how sickly ironic is that, particularly in light of the human rights and humanitarian principles central to so much of modern international law?

If we accept that sometimes we will have to break international law in the course of practical international relations, I would be much happier about doing so in a case like supporting the Syrian opposition and Syrian people, than I am about doing so in order to disproportionately kill civilians in our ridiculously ill-conceived wars in Iraq and Afghanistan.

The Wrong Country in the Crosshairs

Forget about Iran, here’s who we should really be worried about.  A country that openly possesses nuclear weapons, has sold nuclear technologies and information to pretty much anyone willing to buy, and is the world’s worst proliferator of missiles.  And they are certifiably crazy – paranoid delusional, with yet another generation of the worst kind of corrupt and absolute dictator with his boot on the throat of his people. North Korea is a clear, avowed threat to its neighbors, South Korea and Japan. And it seems that North Korea is, even if slowly, steadily progressing its missile and nuclear weapons programs to eventually reach the capability to put a miniaturized nuclear warhead on the nose of a ballistic missile and shoot it wherever their nutty heads think it should go. Including at their avowed arch enemy, the US.

North Korea scares me a whole lot more than Iran does, in terms of the actual threat they pose both to their neighbors and to me.  I have pretty much zero faith in the rationality of their decisionmaking, and I genuinely don’t know what they’re likely to do if/when they eventually achieve this ultimate capability.

I know well the military/security challenges posed by the proximity of Seoul to the border. And of course as a legal matter, since North Korea withdrew from the NPT and its IAEA CSA, there is effectively no substantive international law restraining it from any of these actions (short of actually using a nuclear weapon). Only a raft of U.N. Security Council resolutions. I would say, though, that all of the energy the US is expending on addressing Iran’s nuclear program, and Israel’s concerns about it, should be immediately switched over to deal with an actual threat to international peace and security – North Korea.

Yousaf Butt – Pretty in Pink: The Parchin Preoccupation Paradox

I’m delighted to welcome friend of the blog, Professor Yousaf Butt, as a guest contributor to ACL. Yousaf is a nuclear physicist, and is currently professor and scientist-in-residence at the James Martin Center for Nonproliferation Studies at the Monterey Institute of International Studies.  The views expressed here are his own, and do not reflect institutional views of CNS or MIIS. I would also note that Yousaf has a piece just out in Foreign Policy today on how the Parchin obsession may be obstructing progress on the larger Iran issue.   DJ

Pretty in Pink: The Parchin Preoccupation Paradox

By: Yousaf Butt

The Stockholm International Peace Research Institute (SIPRI) has just released an important new expert report on Iran’s nuclear program, specifically on the Parchin site of much recent interest to the IAEA. The report is a must-read for a number of reasons, not the least of which is the expertise of the author, Robert Kelley. Kelley is a nuclear engineer and a veteran of over 35 years in the US Department of Energy’s nuclear weapons complex, most recently at Los Alamos. He managed the centrifuge and plutonium metallurgy programs at Lawrence Livermore National Laboratory, and was seconded by the US DOE to the IAEA where he served twice as Director of the nuclear inspections in Iraq, in 1992 and 2001.

Rarely, if ever, has such a technically qualified person spoken publicly on this important topic.

The SIPRI report dramatically revises the standard narrative in the mainstream western press about what is known about the Parchin site, and what – if anything — needs to be done about it. It also perfectly contextualizes the relative (un)importance of the IAEA gaining access to the site, and what the IAEA — and P5+1 countries — stands to gain or lose in the process of making a mountain out of a molehill on this issue. As Kelley states, “a careful review of the evidence available to date suggests that less has been going on at the site of interest than meets the eye.”

The dispute centers on “the IAEA’s request to visit a large military production complex located at Parchin, near Tehran. The request is part of the agency’s efforts to resolve questions about whether alleged Iranian nuclear activities have what IAEA Director General Yukiya Amano has called ‘possible military dimensions’.”  Note the “possible” there. Specifically, the IAEA says it has secret information (which it will not share, even with Iran) from a member state’s intelligence agency indicating that Iran may have constructed a large steel chamber in one of the buildings for conducting conventional high explosives experiments—some of which may have involved natural (not enriched) uranium—which could be associated with a secret program to do research on nuclear bombs.  As Kelley explains in the SIPRI report the whole scenario is a bit of a stretch from a technical standpoint.

“A chamber such as the one claimed to be in the building is neither necessary nor particularly useful for developing a first-generation nuclear weapon. Such development tests have normally been done outdoors for decades.”


“There are a range of experiments involving explosives and uranium that a country presumably would conduct as part of a nuclear weapon development programme. Most of these are better done in the open or in a tunnel. They include basic research on neutron initiators using very small amounts of explosive and grams of uranium and on the very precise timing of a neutron initiator using a full-scale conventional explosion system and many kilograms of uranium. The alleged chamber at Parchin is too large for the initiator tests and too small for a full-scale explosion. If it exists at all, it is a white elephant.”

And if someone is going to build a chamber like the one alleged in the secret evidence passed to the IAEA, they will want to do experiments and make measurements.  They will want to measure things with, for example:

·        very high speed optical cameras

·        flash X-ray systems (like an X-ray strobe light which gives you one x-ray of implosion in a

very short time)

·        neutron detectors

·        Various electric timing and pressure detectors.

The collar that is shown in the alleged graphic of the chamber gets in the way of the optical, X-ray and neutron measurements.  So it would be better not to have it there at all. The collar of the alleged chamber also means that when the chamber is used up to its design capacity it could well fail on the ends, the entrance door or the windows and cable ports for the measurements.

But before highlighting more of the take-aways from the SIPRI report, let me first briefly mention what other former senior IAEA officials have said about how the IAEA is handling the Parchin issue more broadly.

Read the rest of this entry »

Another speech, another omission – President Obama’s Inaugural Address

I just read President Obama’s inaugural address and I was surprised to find no reference whatsoever to disarmament and non-proliferation, which played an important role in Obama’s first four years. I also found that declaring that ‘We [the US] will defend our people and uphold our values through strength of arms’ was a bit too belligerent (but, to be fair, he mentions the rule of law too). And what ‘decade of war’ is ending? I assume the reference is to the ‘war on terror’, an unfortunate expression that is obviously hard to get rid of.

What the UN Secretary-General said at the Monterey Institute of International Studies – And what he did not say

On 18 January, UN Secretary-General Ban Ki-moon delivered a speech on the disarmament and non-proliferation agenda at the Monterey Institute of International Studies. While the Secretary-General highlighted five themes with regard to disarmament and non-proliferation (accountability, the rule of law, partnerships, the role of the UN Security Council, and education), it is what he did not say that I would like to draw your attention to.

Accountability. Ban Ki-moon stresses the special responsibility of the nuclear weapon states in contributing to nuclear disarmament and emphasises that ‘[n]uclear deterrence is not a solution to international peace and stability. It is an obstacle’. This might well be true but flies in the face of reality: the continued reliance of nuclear weapon states’ policies on nuclear deterrence. How those states can be persuaded to change their mind is something the Secretary-General does not address. He also recommends that negotiations are initiated in the Conference on Disarmament to secure legal security assurances for non-nuclear weapon states: while this would certainly be a welcome result at the universal level, it is often forgotten that those assurances are already provided in the protocols attached to the five treaties establishing nuclear weapon-free zones. What the Secretary-General could have also recommended is that the nuclear weapon states that have not done so ratify those protocols as soon as possible.

Rule of law. The Secretary-General maintains that the use of chemical weapons by the Syrian government would be ‘an outrageous crime with dire consequences’. While this is an obvious statement, it would have been interesting if the Secretary-General had expanded on the remedies should such a crime be committed: in particular, does he support the responsibility to protect doctrine to the point of allowing the unilateral use of force by states in reaction to international crimes? (see my previous post on this topic here)

Specific regional issues and the role of the Security Council. Ban Ki-moon singles out the usual suspects, i.e. Iran and North Korea, as his proliferation concerns. He admits that he is deeply concerned about Iran’s nuclear programme and stresses that Iran must comply with relevant Security Council resolutions. It is striking that there is no mention of other proliferators, i.e. India, Pakistan and Israel. True, they are not parties to the NPT and therefore have not violated it, but at the beginning of his speech the Secretary-General had emphatically stated that ‘[t]here are no right hands for wrong weapons’. On the upside, it is welcome to read that the Secretary-General believes that a conference on a zone free of weapons of mass destruction in the Middle East can still be convened in 2013 and that he supports the initiative (more information on the WMDFZ in the Middle East here and here). The Secretary-General does not, however, suggest steps to be taken in order to remove the obstacles that derailed the conference in 2012, in particular Israel’s opposition to the initiative.

Disarmament education. Ban Ki-moon rightly emphasises that funding for disarmament education, training and research is low. The Secretary-General also encourages the academia to include disarmament and non-proliferation issues in their curricula and research agendas. While the contributors to this blog cannot be blamed for not doing their part by researching and publishing on non-proliferation issues, undergraduate or postgraduate courses on non-proliferation law are still rare in universities. Consistently with existing financial resources, this is something that we academics with a non-proliferation expertise perhaps could do more on. If anyone is aware of or teaches university courses on non-proliferation law, why not drop us a line so that we can alert potentially interested students here.

Jordan Paust on Israel’s Right of Self-Defense Against Iran

Respected University of Houston Law Professor Jordan Paust has recently posted an op-ed at the Jurist website, in which he gives his analysis and opinion on when Israel would be legally justified in acting in self-defense, pursuant to Article 51 of the U.N. Charter, against Iran.

He hinges his analysis on determining the point at which it could be said, in some hypothetical future context, that Iran had commenced an “armed attack” against Israel. Jordan’s conclusion is stated as follows:

In context, given the facts that: (1) Iran is publicly “gunning” for Israel, (2) Iran has already been continuously complicit in ongoing armed attacks against Israel by Hezbollah and Hamas in violation of international law, and (3) Iran is bound by treaty law to not produce weapons-grade nuclear material and nuclear weapons, one can recognize that an attack would begin at least when Iran continues to violate international law, creates a nuclear warhead, and starts to load it onto a missile without backing down and making such clearly known. If it is known that Iran is building a nuclear weapon for use against Israel, in context it would be logical to claim that an armed attack is underway when Iran starts to create such a weapon.

I have to say that I disagree with Jordan on several points in this analysis. First, I do not agree with his characterization of Iran publicly gunning for Israel, or having made threats against Israel’s security. I addressed this often misunderstood point in a previous post here.

I also would take issue with Jordan’s conclusion that Iran is legally responsible, under the law of state responsibility, for attacks on Israel committed by Hamas and Hezbollah. I’m not categorically saying that Iran is not responsible, but I think the elements of state responsibility would have to be much more clearly made out in these cases. I think that both the Nicaragua and Tadic cases stand for the proposition that financing and general support for the actions of a non-state actor, are not enough for those actions to be legally attributable to a state. As stated in the Tadic case, in order for international legal responsibility to attach, a state must have control over the non-state actor’s activities “going beyond the mere financing or equipping of such forces, and involving also participation in the planning and supervision of military operations.”

Regarding Jordan’s ultimate assessment that “an attack would begin at least when Iran continues to violate international law, creates a nuclear warhead, and starts to load it onto a missile without backing down and making such clearly known,” I would say that what Jordan has essentially done here is argue that, because in his view Iran would have at this point breached several rules of international law, these breaches cumulatively would create a lower threshold for determining when Iran had commenced an armed attack, than would be operative for other states. I think this is a new idea that is not very persuasive, and is actually quite dangerous. It’s kind of like arguing that, because an individual has a criminal record already, the legal standard for them to be convicted of committing a subsequent crime will be more easily met by a prosecutor than if they did not have a prior rap sheet. The law doesn’t work that way. Each legal analysis must be made on its own terms and according to established criteria, and can’t be partially pre-determined by reference to previous actions.

This is also quite a dangerous idea. I mean, look at it from the perspective of, well, any other country in the Middle East. They are firmly of the view (supported by the ICJ and multiple U.N. fact finding missions) that Israel has a checkered recent history of violations of international law in its dealings with the Palestinians. Israel has also used military force in violation of international law against neighboring states, at least in the 1981 Osirak and 2007 Syria airstrikes. Israel has also made multiple threats against Iran that it would attack Iran to keep it from developing nuclear weapons. Israel refuses to even sign onto the treaty that Iran and pretty much the whole of the rest of the world has signed onto, prohibiting nuclear weapons. And as for Jordan’s final criterion, Israel already has nuclear weapons on top of missiles. This is a widely known fact. And who are these nuclear missiles primarily supposed to be used against? Regional threats such as Israel perceives Iran to be. So I would ask Jordan: couldn’t his criteria be applied to justify Iran in attacking Israel in self-defense, just as persuasively or more persuasively than they could be applied to justify Israel in attacking Iran?

I would say that, pursuant to Jordan’s criteria, there are quite a few states in the world that have already commenced armed attacks against their neighbors, who can now respond militarily in self-defense (e.g. Pakistan v. India, NK v. Japan, US v. Iran). I don’t think it’s a good idea to legally recognize this active right of self-defense in such a broad set of contexts.

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.