As the drumbeat for strikes on Iran’s nuclear facilities grows louder, attention has begun to focus on the key international-law question: Would such strikes be legal? Many conservatives tend to think that international law doesn’t matter, because we know we’re right and international law is just another fiefdom of clueless liberal academics.
Both of those things are true, but that doesn’t mean we can ignore the issue of legality. The reason is strategic. International law supplies the terms of diplomatic debate, which in turn shapes public discourse, which in turn determines the degree of public support for a war policy. In a democracy, politics constrain the range of choices available to leaders. That is how international law affects the effective reach of strategic power.
Given the importance of the legal question, the cacophony of recent commentary — on both sides of the issue — is a clear sign of big trouble ahead.
In the L.A. Times, Yale law professor Bruce Ackerman argues that strikes on Iran’s legal facility would violate international law, because Iran has not attacked us and there is no “imminent” attack. On the Corner, David French and Jay Sekulow take aim at Ackerman’s argument by pointing out that Iran has already “attacked” both the U.S. and Israel through proxies, so there’s no need to wait for an “imminent” attack. Writing on Real Clear Politics, Peter Berkowitz takes a different tack, noting that the Obama administration has already called for “a more flexible understanding of ‘imminence’” in a reprise of the Bush administration’s National Security Strategy.
The argument that Iran has already attacked both the U.S. and Israel is not convincing, because even if Iran had attacked nobody, the danger posed by its nuclear program would now be precisely the same. Iran’s open belligerence has helped to unify world opinion against the mullahs and their nuclear program, providing a political defense, but it doesn’t make a clear-cut case of why we should have the right to attack its nuclear program.
As can be expected for just about any argument he weighs in on, Berkowitz has the better of this one. But his take is not entirely satisfying, either. He gives several examples of why preemptive attacks against Iran’s program are justifiable on the basis of necessity. But simply positing that, given the capabilities of modern states, necessity justifies “a more flexible understanding” of what constitutes an imminent threat still does not spell out a clear principle of law.
Everyone seems to agree that preemption is justified to forestall an “imminent threat.” But that term conflates two very different concepts: imminent attack and immediate threat. The 1994 North Korea nuclear crisis is a perfect example of how you can have the latter without the former. North Korea’s move to discharge plutonium-laden fuel rods from the reactor core at Yongbyon represented the last point in time when its program could be interdicted with confidence. That’s why President Clinton nearly decided to bomb the reactor. Even though a North Korean nuclear weapon — and therefore an imminent attack — would still be years away at the earliest, the North Korean move represented such a deterioration in the status quo, with so many possibly catastrophic consequences, that it presented an immediate threat.
Indeed, Clinton’s reckless decision not to bomb the Yongbyon reactor gave Iran a vital green light at an early stage. That green light has been sustained by Security Council resolutions that, despite some effectiveness, have forecast to Iran that we are not threatening strikes in the near term.
Ackerman concedes Berkowitz’s basic point, that customary international law allows the preemption of an imminent attack. He harkens back to a 19th-century dispute which arose when the British destroyed an American vessel, the S.S. Caroline, that had helped ferry aid to rebels in Canada. Secretary of State Daniel Webster demanded an explanation of the legal basis for the British attack. He insisted that in cases of preemptive self-defense, the “necessity of self-defense” must be “instant, overwhelming, leaving no choice of means, and no moment for deliberation.”
Any law student who takes a class on international law will soon find himself confronted with the colorful exchange of diplomatic letters known as the Caroline dispute. It is the case most often cited for the proposition that international law allows preemptive self-defense in case of an imminent attack. But the key word in Webster’s formulation is almost always ignored: necessity. I disagree with Berkowitz on this narrow point: We don’t need a more flexible approach to “imminence,” a concept that only confuses the issue. What we need is a renewed focus on “necessity.”
Ackerman proffers several other historical cases to show why U.S. or Israeli strikes would be illegitimate. Far from bolstering his position, each of these cases undermines it.
First, Ackerman points to the Israel strike on Iraq’s nuclear reactor at Osirak in 1981, which was condemned at the time by Margaret Thatcher and, at the U.N. Security Council, by none other than Jean Kirkpatrick, Reagan’s hawkish U.N. ambassador.
There’s no accounting for Thatcher’s reaction. She doesn’t even mention the incident in her memoir, Downing Street Years. Moreover, the Israeli prime minister at the time was Menachem Begin who himself, as a young Zionist terrorist, had orchestrated the bombing of the King David Hotel in Jerusalem, which killed 250 British soldiers. So the British couldn’t exactly be expected to rush to Israel’s defense. Reagan, for his part, had little interest in goings-on at the U.N., and when showed the satellite images of the rubble at Osirak, is said to have been quite happy with the result.
The main point is that no one serious still thinks it was wrong for Israel to destroy the Osirak reactor. But for the destruction of that reactor, Saddam Hussein would be sitting on top of a nuclear weapon right now, having annexed Kuwait, and Saudi Arabia would have had little choice but to become either a satellite of Baghdad, a permanent U.S. occupation zone, maybe with a nuclear weapon of its own. That’s why Israel’s similar attack on a Syrian facility in 2007 hardly drew a whimper of protest from the international community.
International law among sovereign states is customary — it arises from state practice and international acceptance. And it is quite clear that the principle which justified both Israeli attacks has now been widely accepted. That principle, rejected in the early 1980s by a conservative U.S. administration, has now been embraced by a liberal one: Obama has made it quite clear that he believes Israel’s attack on the Syrian reactor was legitimate and that an attack on Iran’s program would also be legitimate. The principle of the right to preempt gathering WMD threats while the threat is still incipient, long before an attack is “imminent,” has gained acceptance. The only problem is that the principle hasn’t been properly articulated yet, so nobody is really very sure what the principle is.
Ackerman refutes his own thesis most clearly when he harkens back to the Nazi “war of aggression,” the chief charge against the criminals at Nuremberg. He implies an analogy between preemptive strikes and the “war of aggression” that the allied victors insisted on criminalizing, as if that makes his case against preemption stronger. That is an astounding argument given the circumstances that led to World War II. By the time the war ended, everyone was pretty well convinced that the West’s failure to preempt Hitler’s various nonviolent preparations for war had left all Europe defenseless before the Nazi onslaught.
The idea that World War II argues for restricting the right of anticipatory self-defense is preposterous. On the contrary. Britain and France should have gone to war over the remilitarization of the Rhineland in 1934, to make no mention of the later Anschluss with Austria, or — most disastrous of all — the occupation of Czechoslovakia. In each case, a military response on the part of Britain and France was not merely justified, but urgently necessary. Yet, according to Ackerman’s “rule,” the British or French countermoves in each case would have been illegal.
This absurd position unfortunately finds a strong foundation in the actual text of the U.N. Charter. That is because, according to a strict reading, the U.N. Charter outlaws virtually all uses of force, no matter how necessary, unless the Security Council approves or an “armed attack occurs.” Article 2(4) prohibits “the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”
Arguably, virtually any use of force violates the territorial integrity or political independence of some state. Hence, Article 2(4) is generally read as a blanket prohibition against using military force across borders. But actual state practice indicates that democratic governments do not consider Article 2(4) so constraining. Instead, they have often used force that was justified by the much broader “Purposes of the United Nations,” which are found in Article 1 of the Charter and include “the prevention and removal of threats to the peace.”
The classic example is the Cuban Missile Crisis, in which the U.S. imposed a naval blockade (a “threat or use of force”) where no Soviet attack was even theoretically imminent. It was pure preemption.
Ackerman thinks the Cuba Quarantine was fine, because the U.S. legal position (articulated in a formal release by the State Department) relied on “the regional peacekeeping provisions of the U.N. Charter.” But as the Soviets quite properly protested, those regional-peacekeeping provisions in no way get you off the hook from the prohibition in Article 2(4) or the need for Security Council approval under Chapter VII — and the Soviets would have vetoed any Council action.
Given the plain text of the Charter, the State Department’s legal position was totally invalid. It was undignified for the U.S. to issue a legal position that was so brazenly wrong on its face, as if we felt the need to pay lip service to legality but no obligation actually to abide by it. The lesson of the Cuban Missile Crisis is that where a vitally necessary action in self-defense is illegal under the provisions of some treaty, you need to make it clear that the relevant treaty provisions are a dead letter and that you consider yourself bound by a different set of rules. At any rate, that is how a democracy should behave. We expect Iran to breach international law while claiming to comply with it, but that cynical manipulation of legality should be beneath the dignity of our government. So long as we keep trying to justify our self-defense strategies in terms of a U.N. Charter that renders those strategies illegal, we are treating international law with almost as much disdain as Iran does.
Ackerman warns, “If President Obama supports Netanyahu’s preemptive strike, he will transform Bush’s Iraq aberration into the founding precedent of a new era of international law. He should instead reaffirm Reagan’s position in 1981.” Thankfully, it’s far too late for that. Obama has already made it quite clear that both the U.S. and Israel have a right to attack Iran’s nuclear program under current circumstances; his only difference with the Netanyahu is over the wisdom of doing so now. Obama has explicitly endorsed the 2007 Israeli strike on the Syrian reactor.
We are already well into a new era of international law, in which necessity and proportionality will guide the self-defense actions of legitimate states. In that sense, the new era is a reprise of the old. Necessity and proportionality are rooted in natural law, and have always shaped the right of self-defense not just in international relations, but in the criminal-law systems of virtually every society on earth.
The invasion of Iraq was not an “aberration.” Contrary to Ackerman’s point, it should be a precedent for the future: Rogue regimes that sponsor terrorism had better be transparent about their WMD capabilities, or they might live to regret it. We ought to embrace the principle that belligerent rogue regimes have no right to be secretive in their WMD dispositions, and have a positive obligation to be transparently non-threatening.
The diplomatic work ahead requires articulating with specificity the principles that guide our strategies of self-defense. We need to make sure that everyone is clear on what we claim the right to do. A “decent respect to the opinions of mankind” requires nothing more, and nothing less. And states such as Iran that nowadays see opportunities for advancing aggression in the text of the U.N. Charter will have more to fear from defying international law and threatening the peace of the world.
— Mario Loyola is former counsel for foreign and defense policy to the U.S. Senate Republican Policy Committee.