Can the U.S. or Israel Lawfully Attack Iran’s Nuclear Facilities?

Monday, August 13, 2012

Professor Dan Joyner, University of Alabama School of Law

Like everyone else, I continue to see media reports about the prospect of either a U.S., or far more likely an Israeli, military strike on Iranian nuclear facilities.  It has something of a soap opera aspect to it – sometimes there’s a lot of talk about it and some firebrand statements are made by either U.S. or Israeli officials, and everyone is just sure we’re only weeks away from an Israeli strike. And then a week later, the furor dies down and you read more toned-down statements from other U.S. and Israeli officials, stressing that there’s still time for diplomacy to work.

I’ve come pretty close to being convinced that the whole thing is much more political theatre than it is a real potentiality.  The safe money seems to be on the idea that Israel in particular uses this kind of ratcheted-up rhetoric when it wants to put pressure on the P5+1 to make progress in their diplomatic dealings with Iran – progress being defined by Israel as Iran agreeing to every demand of the West, however unreasonable or illegal. And then after a suitable amount of pressure is exerted on the crucible of the negotiations, Israel backs off of its threats in order to wait for the next key, strategic moment to play the bad cop to the P5+1’s incompetent cop.

That’s my political read of the situation. But, just for the sake of argument, lets assume for the moment that there really is a serious potential for either a U.S. or Israeli military strike against Iran’s nuclear facilities, purposed in degrading Iran’s nuclear program and its ability to develop nuclear weapons.  Would such a strike be lawful under international law?

I’m going to do the blog version of this here. I and many others have written on the topic of the legality of preemptive international uses of force as against WMD threats in much longer, and more detailed form in books and law review articles. For example, in my 2009 book International Law and the Proliferation of Weapons of Mass Destruction, Chapters 6-9 are primarily devoted to this and related counterproliferation legal questions. For a much shorter treatment on the web, see my 2008 ASIL Insight on Syria’s Al Kibar reactor site, and the 2007 bombing of the site by Israel.

Basically, the only legal grounds available to the U.S. or Israel to justify this international use of force would be Article 51 of the U.N. Charter, which recognizes the inherent right of individual or collective self-defense.  And this is only if one accepts, as I and most international lawyers do, that there is still a limited right of anticipatory self-defense that is included in the customary law foundations of Article 51.  However, this right of anticipatory self-defense is extremely limited, and can only be used when there is a necessity of self defense that is “instant, overwhelming, leaving no choice of means, and no moment of deliberation …” And even in such a “necessity of the moment,” the attacking force may do nothing which is “unreasonable or excessive.” (Quotes taken from the Caroline correspondence of 1837, between U.S. and British officials)

The international lawyers out there may be thinking that this statement of the law, if true even ten years ago, might now be in need of updating in light of state practice through such incidents at the 2003 invasion of Iraq and the 2007 attack by Israel against Al Kibar. And there are arguments to be made here. My own view is that there have been far too few instances of state practice, coupled with an opinio juris seeking to change the underlying rules of use of force law relative to anticipatory self-defense, and far too little evidence of a generalized acquiescence to such a change by the international community, to find that such a substantive change has indeed occurred. It may be in the process of occurring, but my sense is that from a legal perspective, it would be a very risky gamble at this point to rely on the justification potentially afforded such an act through arguing that it was an attempt to progress an emerging rule of customary law. For one thing, I don’t think that either the U.S. or Israel would make such an argument because, at the end of the day, neither one wants the general rules on the use of force to change in that direction. This is one reason why the U.S. official arguments regarding the 2003 invasion of Iraq were not based on counterproliferation-oriented self-defense, but rather on UNSC Resolutions.

Ok, back to the analysis. The sort of imminence of threat posed by the target of an anticipatory use of self-defense, as required by the Caroline test quoted above, is going to be a very high bar for either the U.S. or Israel to meet under anything like the current circumstances.  Iran has at present made no threats to use nuclear weapons against either the U.S. or Israel. In fact Iran consistently denies it has a nuclear weapons program. And there is no credible evidence that such a nuclear weapons development program currently exists – at least not one that is objectively likely, under current conditions, to lead to the actual manufacture of a nuclear weapon. So with this as the factual context, and again unless something quite radically changes about this factual context, the high bar of the Caroline imminence test will not be met by any U.S. or Israeli strike against Iran’s nuclear facilities.

In the specific context of international uses of force against nuclear facilities, there are also a number of resolutions adopted by the IAEA General Conference – the highest policymaking body of the IAEA, comprised of representatives from all IAEA member states, today numbering 154 states.  In a number of resolutions, the IAEA General Conference has explicitly declared that attacks against peaceful nuclear installations are prohibited under international law. These resolutions include GC(XXVII)/RES/407 (1983);  GC(XXIX)/RES/444 (1984); and GC(XXIX)/765 (1985).  These IAEA GC resolutions are interesting from an international legal perspective. I’ve thought about exactly how to characterize/classify them in a formal legal sense. I think probably the best way to look at them is in a similar way to how we look at U.N. General Assembly Resolutions.  They are certainly not binding statements of international law per se.  However as resolutions of the plenary policymaking body of the foremost international organization devoted to international law in the area of nuclear energy, I think that IAEA GC Resolutions’ legal significance can be understood in two ways.

First, as treaty interpretive statements, I think that IAEA GC Resolutions are the kind of source conceived of by the drafters of the 1969 Vienna Convention on the Law of treaties (VCLT) as falling under the subparagraphs of Article 31(3), and therefore as being of material significance in treaty interpretation.  And which treaties do they interpret? Well they actually are fairly explicit about this. They say they are interpreting the scope of the IAEA Statute, and the U.N. Charter, to include in the prohibitions established by those treaties a prohibition on international use of force against peaceful nuclear facilities.  They also address Additional Protocol I to the Geneva Conventions, and urge states to make it clear that such attacks on nuclear facilities are in violation of the Protocol’s prohibitions on attacking civilian power infrastructure during armed conflict.

Second, I think that, like U.N. General Assembly Resolutions, IAEA GC Resolutions can be an important source of state practice and opinio juris for the establishment of rules of customary international law. Is there, therefore, currently enough evidence of state practice and opinio juris, inclusive of IAEA GC Resolutions, in order to conclude that attacks against peaceful nuclear facilities are prohibited under customary international law? Well, that sounds like a good question for a law review article, and I really cant do a proper analysis here, so for now I wont use this possibility analytically.

I do think that we can at least say at this point that these IAEA GC Resolutions are material in interpreting Article 51 of the U.N. Charter, and support the interpretive conclusion that the scope of lawful acts of self-defense that may be undertaken pursuant to Article 51 does not include attacks on peaceful nuclear facilities.

Now, I know what you’re thinking. Are Iran’s nuclear facilities “devoted to peaceful purposes”? This is of course a factual question, and I’m sure there’s a lot to be said on all sides. Let me put my thoughts in this form. Even if you think that Iran currently has a nuclear hedging strategy, pursuant to which they are acquiring and maintaining a nuclear energy program for the primary or secondary purpose of having the capability to someday manufacture a nuclear weapon, this can only be a basis for legally determining that Iran’s nuclear facilities are not devoted to peaceful purposes, if you are at the same time prepared to concede that, under the same legal test, Japan’s nuclear facilities are not devoted to peaceful purposes.  (See my previous post on Japan’s nuclear program here, as well as this subsequent GSN article)

I know some of you are going to quickly say that the two situations are distinguishable for this, that, or the other reason. But just in terms of a legal test for determining whether nuclear facilities are peaceful, I don’t think you could come up with one that, under current circumstances, makes Iran’s facilities non-peaceful, without at the same time making Japan’s facilities non-peaceful.  And since I don’t think this is an argument that either the U.S. or Israel would ever want to make, I doubt that this peaceful/non-peaceful distinction is the place lawyers for either government will want to hang their hat.

So, in conclusion, can the U.S. or Israel lawfully attack Iran’s nuclear facilities, barring some kind of radical change in factual context? The answer is no.

Source: Arms Control Law Blog

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