A Military Strike On Iran Would Be Illegal, Regardless Of Its Nuclear Status

Written by The Heathlander
Published November 14, 2006 (article contain many corroborating links)

Speaking yesterday at the annual United Jewish Communities General Assembly (a tough crowd), Likud chairman and former Israeli Prime Minister Binyamin Netanyahu used apocalyptic language to emphasise the threat posed by Iran, not only to Israel but to the entire world. "Everything else pales before this," he intoned gravely.
He also employed that ever so original tool of persuasion: a Holocaust analogy, stating,

"It's 1938 and Iran is Germany. And Iran is racing to arm itself with atomic bombs...Believe [Iranian President Ahmadinejad] and stop him...he is preparing another Holocaust for the Jewish state."

This is not the first time in recent days Ahmadinejad has been compared to Hitler. In an interview with the Washington Post, PM Olmert made the same analogy, adding that Ahmadinejad is "ready to commit crimes against humanity" and "has to be stopped".

Now, analogies to the Holocaust should not be made lightly, at least not without clarification. Likewise, comparisons to Hitler, whilst an unfortunately popular defamatory device, are usually misplaced and inaccurate. Mahmoud Ahmadinejad is a borderline Holocaust denier and he has made threats against the existence of Israel. But firstly, these threats have been abstract - he has made no direct call to arms or threat of war. Secondly, Ahmadinejad has no power under Iranian law over the nuclear programme or over matters of war. Of course all his talk about the "destruction" of Israel and questioning the Holocaust is disgusting, but it's done in order to increase his popularity with the people of Iran, not because he's actually planning a war. He is a show-figure and not in charge of policy in these matters. Thus, while convenient for Israel and the U.S., all this focus on Ahmadinejad is misleading. There is certainly no danger of a second Holocaust coming from Iran.

Israel, on the other hand, has been ratcheting up the rhetoric recently, making several very real military threats, both veiled and explicit, against Iran. In an interview published Saturday, Olmert pushed the international community to make clear to Iran that it will "pay dearly" if it doesn't stop its enrichment activities. "In other words," said Olmert, "Iran must start to fear." In the same interview, he described a nuclear Iran as "absolutely intolerable" and, when asked whether Israel would consider military action, Olmert refused to answer, saying only that, "Israel has many options."

Others have been more specific. On November 10, Israel's Deputy Defence Minister Ephraim Sneh warned that Israel must prevent Iran's nuclear programme "at all costs" (the "costs", presumably, being Iranian lives). He classified "preemptive military action" as a "last resort", before proclaiming that, "the last resort is sometimes the only resort". Not exactly what you'd call 'subtle'.

Then, of course, there was the appointment of the extreme nationalist and racist Avigdor Lieberman as `Minister for Strategic Threats', whose prime task, apparently, will be to coordinate Israeli strategy on Iran.

Finally, let's return reluctantly to Netanyahu, who has also directly threatened Iran with military force. Pointing out that Israel has "the capability required to eliminate the [Iranian] threat", he argued that stopping Iran requires "preemptive leadership" (in reference to Israel's preemptive strike in the 1967 war). It's been made crystal clear that, while it will go through the diplomatic motions and give Iran the chance to surrender first, Israel is absolutely prepared to launch a military first-strike on Iran.

The United States likewise officially retains the right to launch "preemptive strikes", even if "uncertainty remains as to the time and place of the enemy's attack". The 2006 National Security Strategy of the United States explicitly states the U.S.' right to "act preemptively in exercising our inherent right of self-defense." More recently, President Bush has declared that, with Iran, "all options are on the table".

It's important to note that when Israel and the United States talk of preemption, what they actually mean is prevention. The U.S. cited "preemption" in its case for invading Iraq, but for something to qualify as `preemption' it has to be in response to "incontrovertible evidence that an enemy attack is imminent". What the U.S. meant in the case of Iraq and what the U.S. and Israel mean in the case of Iran is prevention, which is "a war initiated in the belief that military conflict, while not imminent, is inevitable, and that to delay would involve greater risk."

In short, then, Iranians have every reason to feel insecure. Many have lived with the threat and fear of a hostile, nuclear-armed Israel and an aggressive, nuclear-armed United States all their lives. But, evidently, it is only Israel's and the United States' security that matters. Israel's ambassador to the EU, Oded Eran, recently argued that, for the first time since its creation, Israel is facing an "existential threat". He points out that,

"We know from the past the destructive nature of the nuclear weapons and it doesn't matter whether you react or not afterwards because the harm can't be reversed. That's existential threat."

Now, this is the argument that is being and will be used to justify a strike on Iran. The premises are;

1. A nuclear Iran will be, in Olmert's words, "not just a threat for Israel, but for the whole world."

2. Israel should not have to tolerate such a threat.

The conclusion, therefore, is that Israel has the right to strike preventively against Iran to stop it getting nuclear weapons.

The first thing to note is the unevidenced assumption that Iran is in fact attempting to develop nuclear weapons. The IAEA has emphasised (though not strongly enough) many times that, although it can't say for definite that Iran isn't pursuing nuclear weapons, neither can it show that it is. In the absence of evidence to the contrary, the working assumption must therefore be that Iran is simply exercising its legal right to enrich uranium and develop a civilian nuclear programme.

But let's, for a moment, assume that Iran is pursuing nuclear weapons. Does it then follow that, as Netanyahu put it, "[the arsenal] will be directed against `the big Satan,' the U.S., and the `moderate Satan,' Europe"? Let's look at the current nuclear club. Has Israel ever used nuclear weapons on anyone? Has France? Has the U.K.? No; the only country ever to drop a nuclear bomb on another nation is the United States. They dropped two on Japan - a non-nuclear state. There has never been an instance of a nuclear attack on a nuclear state. The reason for this is obvious: an attack on a nuclear state would result in a retaliatory nuclear strike and states don't commit suicide. There is thus no reason at all to think that a nuclear Iran would actually use nuclear weapons on anyone. As historian Martin van Crevald writes, "[Israel] has long had what it needs to deter an Iranian attack...Should deterrence fail, Jerusalem can quickly turn Tehran into a radioactive desert — a fact of which Iranians are fully aware."

But even if we assume that Iran is developing nuclear weapons and that, should it get them, it would pose a threat to Israel, the United States and the world, would that then justify an Israeli/U.S. preventive strike against Iran? Well, let's reverse the situation. As we have seen, Israel is a nuclear power with enough nuclear weapons to "turn Tehran into a radioactive desert". Its political and military leadership have long made clear that they are prepared to launch a military first-strike against Iran. The U.S. has also made its aggressive intent towards Iran known and has enough nuclear weapons to turn the whole of the Middle East into a radioactive desert. What's more, both states have a history of aggressive military intervention (the U.S., for example, helped topple Iran's democratically elected Mossadegh in 1953). Even Tony Blair accepts that Iran has a "genuine, if entirely misplaced fear, that the US seeks a military solution in Iran."

If we argue that Israel has the right to strike Iran preventively because it fears an Iranian nuclear threat, does not Iran have the right to strike Washington and Tel Aviv for the same reason?

If basic morality does not suffice, international law is clear on the matter. Preventive military strikes are illegal. Under international law (.pdf), the "use of force is only permissable in the case of armed attack or imminent attack or under UN authorization when a threat to the peace has been declared by the Security Council and non-military measured have been determined to be inadequate."

As an American Society of International Law (ASIL) paper, entitled `The Myth of Preemptive Self-Defense' (.pdf), explains, the United Nations Charter (a binding treaty to which both the U.S. and Israel are signatories) explicitly forbids the use of force except in self-defence or if authorised by the Security Council in response to an imminent attack. But to use force under Article 51 (which permits states to use force to defend themselves) requires that, "An attack must be underway or just have already occurred in order to trigger the right of unilateral self-defense. Any earlier response requires the approval of the Security Council. There is no self-appointed right to attack another state because of fear that the state is making plans or developing weapons usable in a hypothetical campaign."

Thus, in the absence of "incontrovertible evidence" of an "imminent" Iranian aggression, there is absolutely zero justification for any military action against Iran, regardless of its nuclear status.