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Affirming the Ban on Bombing Iran

 

Mary Ellen O’Connell

Early in 2012, the media began reporting that Israel would attack Iran within months.[1]  In 2006, my co-author and I concluded that attacking Iran in the circumstances prevailing at that time would violate fundamental international law.  This comment considers whether the law or the facts have changed in the interim. 

The place to start any consideration of a sovereign state’s right to resort to military force is the United Nations Charter, specifically, Article 2(4). Article 2(4) generally prohibits resort to force by states in their international relations.  In 2010, at the Kampala Review Conference of the International Criminal Court, which even the United States attended, the delegations re-confirmed that any serious violation of Article 2(4) is an act of aggression for which a national leader could face individual accountability.[2]  Article 2(4) is often cited as an example of a jus cogens norm.  Other jus cogens norms include the prohibitions on torture, slavery, genocide, apartheid, and widespread extrajudicial killing.  Indeed, virtually no international law experts even attempt to assert that Article 2(4) is not binding law.[3]

The Charter contains two exceptions to Article 2(4), one for force authorized by the Security Council per the terms of Chapter VII of the Charter and one for force in self-defense, per Article 51 of the Charter.  During and after the Kosovo Crisis of 1999, some commentators tried to argue that Security Council authorization was no longer necessary for certain kinds of military intervention.  These claims never comported with existing law and were, at best, calls for the law to change.  Following the Security Council’s authorization of the use of force in Libya in March 2011, the calls for changing the law have all but ended.  If the Security Council authorized a use of force against Iran, such a use of force would most likely be considered lawful.  Yet, the Security Council has not even agreed to the United States’ toughest proposals for economic sanctions against Iran.  The chance of getting agreement to a military attack must be nil.

That leaves self-defence under Article 51.[4]  Some commentators make expansive claims under this rule to justify a wide array of military action.  In fact, the plain terms of Article 51 clearly express that states may not use force in self-defence unless an armed attack “occurs.”  The most recent interpretation of Article 51 remains the one we reviewed in 2006, the International Court of Justice’s (ICJ) 2005 decision in the Congo v. Uganda case.[5]  The ICJ relied in the Congo v. Uganda case on its 1986 Nicaragua decision and its 2004 Oil Platforms decision.  In Oil Platforms, a case brought by Iran against the United States for unlawful attacks, the ICJ said:

[I]n order to establish that it was legally justified in attacking the Iranian platforms in exercise of the right of individual self-defence, the United States has to show that attacks had been made upon it for which Iran was responsible; and that those attacks were of such a nature as to be qualified as ‘armed attacks’ within the meaning of that expression in Article 51 of the United Nations Charter, and as understood in customary law on the use of force.  As the Court observed in the case concerning Military and Paramilitary Activities in and against Nicaragua, it is necessary to distinguish ‘the most grave forms of the use of force (those constituting an armed attack) from other less grave forms.’  (I.C.J. Reports 1986, p. 101, para. 191), since ‘In the case of individual self-defence, the exercise of this right is subject to the State concerning having been the victim of an armed attack’ (ibid., p. 103, para. 195).[6]

The ICJ has not even hinted that developing a nuclear weapon amounts to an armed attack.  How could it make such a finding when nine states have developed nuclear weapons, including Israel?  There has been no change with respect to the proper interpretation of Article 51 since we wrote in 2006.

We did cite some writers who believe the armed attack need only be “imminent” rather than actually occurring.  A few writers commenting on Iran’s nuclear program have stretched the meaning of “imminent” to include developing a weapons program.  This argument depends, however, on ignoring the plain meaning of the words in Article 51.  But there is no need to play word games.  The Charter does not say “imminent,” it says “occurs”.  Moreover, the additional principles that condition resort to force in self-defence, namely the principles of necessity and proportionality, are premised on certain definite facts about the attack in order to shape a lawful response in self-defence.  The response must consist of only the force necessary to end the attack and must not impose a disproportionate cost in terms of lives lost and property destroyed.  Necessity and proportionality are impossible to implement without knowing what the attack is.[7]

Just as important, there has been no change respecting the relevant facts.  Iran may be closer to developing a nuclear weapon, a point of continuing disagreement, but that developing a nuclear weapon is not relevant to what triggers the right of self-defense.  Only an armed attack gives rise to the right to use significant military force against the attacking state.

One incident since 2006 is worth mentioning, however.  In September 2007, Israel sent eight fighter jets to bomb Syria.  Apparently, Syria was engaged with North Korea in building some sort of secret weapons production facility.  Many reports say it was a nuclear weapons facility, but the facts indicate it was more likely a nerve agent facility.  Several days passed after the bombing before Syria even protested.[8]  Syria apparently did not wish to draw attention to its illicit activities by protesting.  The situation could be analogized to the unclean hands maxim—courts will not hear the claims of plaintiffs that have themselves done a wrong to a defendant.

This single case cannot change a jus cogens norm or widen a treaty-based exception to it.  Moreover, the 2007 bombing was very different from what Israel is said to be planning against Iran.  A number of people were probably killed in the Syrian bombing—no definite numbers have been reported in the media.  It is likely that thousands will be killed in the case of a major assault on Iran.  Iran’s nuclear facilities remain widely spread around Iran and are undoubtedly even better protected than in 2006.  Israel wiped out the Syrian facility in one raid.  Syria did not rebuild it.  Regarding Iran, the best prediction is that by bombing Israel will delay the program by one year.  To achieve this limited result, thousands of Iranians will die.  The numbers will be less than we predicted in 2006 when the estimates were based on bombing with conventional or nuclear weapons.  The United States gave Israel bunker buster bombs in 2009.  These will obviate the need for nuclear weapons and will not have the wider impact of conventional bombs.  Nevertheless, Iran’s widely scattered nuclear sites are often near population centers.  Many people work at the sites slated for targeting.

Six years ago it was our conclusion that attacking Iran over its nuclear program would be unlawful.  That is still the conclusion.  The alternative is negotiation—the method that has proven effective in ending nuclear weapons programs.  We urged before that the U.S. lead by example, complying with its own obligations under the NPT as well as the international law against the use of force in general. The U.S. could also try a bold new approach: .It might be high time to negotiate for a nuclear-free Middle East.



[1]  See e.g., Donald MacIntyre, US Expects Israel to Attack Iran Soon, Independent, Feb. 4, 2012, at 1.

[2]  See Mary Ellen O’Connell and Mirakmal Niyazmatov, What is Aggression? 10 J. Int’l Crim. Just. 189 (2012).

[3]  Michael Glennon is an exception.  He argues that Article 2(4) is a victim of “desuetude”, meaning it has been so completely ignored as to fade from current law.  I have explained elsewhere why this argument is fundamentally misconceived.  See e.g., Mary Ellen O’Connell, The Power and Purpose of International Law 168-169 (2008).

[4] For an overview of this law, see Mary Ellen O’Connell, The Right of Self-Defense in International Law, Oxford Bibliographies Online (2012).

[5] Armed Activities on the Territory of the Congo (Congo v. Uganda) 2005 I.C.J. para. 301 (Dec. 19).

[6] Oil Platforms (Iran v. U.S.) 2003 I.C.J. 161, 192 (Nov. 6).

[7]  See generally Judith Gardam, Necessity, Proportionality and Use of Force by States (2004).

[8]  Peter Beaumont, Was Israeli Raid a Dry Run for Attack on Iran?, Observer (London), Sept. 16, 2007, available at http://observer.guardian.co.uk/world/story/0,,2170188,00.html.  If space allowed it would also be interesting to discuss the legality of the use of computer malware to attack the Iranian nuclear program.  See Mary Ellen O’Connell, Cyber Security without Cyber War, J. Confl. & Sec.’y L. (forthcoming 2012).