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An Israeli Military Strike Against Iran Would Be Illegal

Posted: 03/ 6/2012 3:34 pm

Exercising military options generally requires politics and law to agree.

On the political side, this past weekend has seen concerning new developments on the issue of Iran and Israel. Not only has Obama kept the military option on the table, Israeli Foreign Minister Avigdor Lieberman declared that Israel will decide on what to do about Iran's nuclear activities on its own. Obama's speech on Sunday insisted that "Israel must always have the ability to defend itself by itself against any threat." Even more unequivocally, Ronen Bergman, a senior political and military analyst for Yedioth Ahronoth, Israel's most widely read daily newspaper, announced that "After speaking with many of the Israeli leaders and of the intelligence and the military, I have come to the conclusion that there is a strong likelihood that Israel will strike Iran during 2012."

On the legal side, Peter Berkowitz published an article on Sunday insisting that Israel has the legal right to strike Iran. In support of his assertion, Berkowitz points to Iran's nuclear program, Iran's status as a "rogue state," and its capability of striking targets throughout the Arab world and Europe with missiles. Berkowitz also relies on untenable theories of international law such as the Bush Doctrine to further his position.

Absent a UN Security Council resolution, there are two scenarios in which Israel may legally attack Iran: (1) if Israel suffers an armed attack at the hands of the Iranian government; (2) under the anticipatory self-defense doctrine.

Despite Berkowitz's suggestion to the contrary, Iran providing weapons to groups such as Hezbollah and Hamas is not an armed attack under the law of war, which would trigger an Israeli right to attack Iran. If this were the standard, Iran could legally attack Israel due to Israel's support of Iranian-Kurdish separatist groups and the Mujahedin e-Khalq, a designated Iranian terrorist organization.

Pursuant to the actual standard found in the International Court of Justice's holding in Nicaragua v. United States, Iranian assistance to Hezbollah, Hamas and Islamic Jihad in the form of weapons, logistical or other support does not constitute an Iranian attack on Israel because Iran has not sent its own troops to carry out attacks against Israel.

This leaves Israel with the anticipatory self-defense doctrine. Berkowitz correctly notes that international law recognizes that Israel need not wait for Iran to attack before it can legally defend itself. However, to invoke anticipatory self defense, Israel must show that the use of force by Iran is so imminent that only force would thwart such an attack (i.e. "imminent necessity").

Although Israel has incessantly pointed to Iran's controversial nuclear program and anti-Israeli rhetoric, this is insufficient to establish imminent necessity. If this were the legal standard, Iran would be perfectly justified in attacking Israel due to Israel's nuclear capabilities (which are not merely suspected) and aggressive anti-Iranian rhetoric.

Unlike Israel, Iran is a signatory to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT). As such, Iran has the right to enrich uranium for peaceful purposes. Indeed, Resolution 533 of the International Atomic Energy Agency (IAEA) prohibits all armed attacks against nuclear installations devoted to peaceful purposes whether under construction or in operation.

So far, there is no hard evidence that Iran has violated its treaty obligations under the NPT. While the IAEA has found Iran in noncompliance with its Safeguards Agreement, this is not tantamount to an NPT violation. In fact, U.S. agencies have reported that they see no move by Iran to build a nuclear weapon.

But why enrich uranium when you have all of that oil? Simple. Over the last few decades, Iran's average oil exports have declined substantially due in part to increased domestic consumption as a result of a booming population. As Iran's oil exports make up a large portion of its revenue, it is wise to offset its own oil consumption with nuclear energy to increase its oil profits.

Iran's aggressive anti-Israeli rhetoric has turned out to be a long list of empty threats. Indeed, when confronted to explain the true intentions of the Islamic Republic regarding Israel, Ahmadinejad noted that the solution to the Israeli-Palestinian problem should be a popular referendum and explicitly ruled out an Iranian military attack against Israel.

Indeed, Iran is aware that an Iranian nuclear attack on Israel would damage Jerusalem (the third holiest city in Islam) and kill many Palestinians. Iran would be hard pressed to justify such results given its proclaimed status as an Islamic Republic and a supporter of the Palestinian struggle.

Berkowitz instead seems to rely on the Bush Doctrine to justify an Israeli strike against Iran. The Bush Doctrine essentially attempted to loosen the standard of traditional anticipatory self defense by removing the imminent necessity requirement. What Berkowitz fails to mention is that the Bush Doctrine is not international law and in fact has been almost universally rejected by the international community. It follows that Israel may not rely on the Bush Doctrine to justify a preemptive strike against Iran.

Accordingly, any Israeli attack on Iran would violate established principles of international law because Israel has not suffered an Iranian armed attack and is unable to prove that such an Iranian attack is imminent.

The 2003 invasion of Iraq demonstrates that international law is important even when attacking unpopular regimes. Israel should learn from such mistakes and not be so cavalier with its interpretation of clearly defined international legal standards. The fact that Israel does not like Iran or that it views it as a rogue state is not sufficient to justify Israeli military action against Iran.