February 29, 2012 | The Washington Times

Israel versus Iran

With CIA Director Leon Panetta’s June 27 conclusion that sanctions will “probably not” dent Iran’s drive for a “nuclear option” and former CIA Director Michael Hayden’s recent statement on CNN that a strike on Iran now “seems inexorable,” the storm clouds of war seem to be circling in the Middle East once again. An Israeli strike may or may not be in the cards, with the acquiescence, if only privately, of some Arab states and others, but the question nevertheless arises: Would an Israeli strike on Iran necessarily be unlawful?

According to international law, armed force can be used only in two exceptional situations. These are when the U.N. Security Council has authorized it and when a state acts in self-defense, to quote Article 51 of the U.N. Charter, “if an armed attack occurs.”

There is no suggestion that the Security Council has authorized the use of force against Iran. Rather, the question is whether an Israeli strike on Iran could be justified on self-defense grounds.

According to customary international law and as affirmed by the seminal 2004 Report of the United Nations Secretary-General’s High-Level Panel on Threats, Challenges, and Change, a state can lawfully use force in self-defense when an armed attack has not yet occurred but is “imminent.” To cite a key piece of 19th-century diplomatic correspondence between the United Kingdom and the United States in the famous Caroline controversy, such an attack would require “necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation.” Indeed, given what is at issue, there is some irony in the fact that even though Security Council Resolution 487 roundly condemned Israel for its strike on Iraq’s nuclear facilities in 1981, the Iraqi representative in the Security Council at the time actually recognized that use of force against an imminent armed attack would, in principle, be lawful.

From Israel’s perspective, then, can it be said that the threat of an Iranian armed attack is imminent? Here, as with much of international law, the “proof is in the pudding.”

Iranian President Mahmoud Ahmadinejad, citing the late Ayatollah Ruhollah Khomeini, has famously called for Israel to be “eliminated from the pages of history.” Hassan Nasrallah, leader of Hezbollah, Iran’s Shi’ite proxy in Lebanon, has said, “If they [Jews] all gather in Israel, it will save us the trouble of going after them worldwide.” Tehran’s Sunni surrogate in Palestine, Hamas, strives not simply for the elimination of Israel as a Jewish state but also, according to Article 7 of its 1988 Covenant, calls for the elimination of Jews as such. Considering Iran’s failure to cooperate with the international community over its nuclear program and indications that it seeks to play its part in ushering in the apocalypse through the return of the “hidden Imam,” these are certainly worrying indications.

It would not be unreasonable for Israel to conclude, soon, that an Iranian attack is imminent.

If Israel draws this conclusion, international law would also require that it show that its use of force in self-defense would be necessary and proportionate.

Israel’s status as an undeclared nuclear-weapons state could factor into the methods and means of warfare that it could lawfully use against Iran in this regard. It is worth recalling that the International Court of Justice, in a seminal advisory opinion from 1996 that addressed the legality of the threat or use of nuclear weapons, found itself unable to conclude definitively on the legality or otherwise of the use of nuclear weapons by a state “in an extreme circumstance of self-defense, in which its very survival would be at stake.”

This is not to say, necessarily, that Israel would be entitled to launch a nuclear strike on Iran in anticipatory self-defense. Rather, it is simply to stress the gravity of the situation and the fact that the existential nature of the threat posed to Israel could factor into assessments of the lawfulness of the particular methods and means of warfare chosen.

To conclude, then, would an Israeli strike on Iran be unlawful? Not necessarily.

Robert P. Barnidge Jr., is a lecturer in the School of Law at the University of Reading in England. The views expressed are those of the author alone and do not represent those of the University of Reading or its School of Law.


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