Recently, there has been a torrent of high-profile calls for military strikes -- either by the United States or by Israel -- against Iranian nuclear targets. Amid this push for war with Iran, no one is asking -- much less answering -- what we believe is a critical and fundamental question: What, exactly, would be the legal basis for attacking the Islamic Republic?
While the legal basis for America's invasion of Iraq in 2003 was clearly inadequate, there were at least some legal authorities -- Security Council resolutions, etc. -- that could be (mis)interpreted and stitched together by clever lawyers to make a case for war, even if large parts of the world did not accept that case. (Once Saddam had been overthrown, America's European partners -- even those that had opposed and questioned the legitimacy of the invasion -- focused on getting a United Nations Security Council resolution in place to legitimate the post-Saddam occupation, so that we could all move beyond the previous unpleasantness.)
But, in the case of Iran, there will be no legal justification for an attack. All of the relevant Security Council resolutions dealing with the nuclear issue say explicitly that they do not authorize the use of force against the Islamic Republic and that such authorization would require further and separate action by the Council. That action will not be forthcoming. And while, no doubt, the U.S. government has lawyers at the State Department, Pentagon, and the National Security Council who would do their best to come up with a self-defense case under Article 51 of the United Nations Charter, literally no one -- even advocates of attacking Iran -- will be able to take that case seriously. There will be no casus belli.
As we wrote in May, see here:
...a proper assessment of Iranian military capabilities should put to rest the constantly recycled, hyperbolic rhetoric in the United States and some quarters of the Middle East about the Iranian 'threat' to peace and security. Iranians correctly point out that their country has not invaded any of its neighbors for centuries -- and, since 1979, they have not developed the military capabilities that would let them carry out large-scale offensive operations.
In the end, we will be attacking Iran because it is enriching uranium.
We have written previously, see here, about the immediate costs of strikes against Iranian nuclear targets on America's strategic position in the Middle East. But the United States would also pay a heavy price in terms of international legitimacy. This matters, because legitimacy is a critical factor influencing how others view America's still prominent role in international affairs.
Throughout the post-Cold War period, the United States, under Democratic and Republican administrations, has presented itself to the world as a uniquely benign hegemony -- a superpower that other important states did not need to fear. That image was called profoundly into question with the invasion of Iraq. Launching an illegitimate war of aggression against the Islamic Republic -- a war that would have deeply negative consequences for virtually everyone else in the international system -- would have a much more strategically consequential impact on international perceptions of the United States than the Iraq war did. Other important states would almost certainly determine that using non-military means to constrain such a dysfunctional hegemonic power need to become a much higher and more explicit goal of their foreign policies. As we also wrote in May:
"[A]ny wars that the United States chooses to fight in the Middle East in the future will be fought on borrowed money -- money borrowed from creditors like China and Saudi Arabia that will not be amused by Washington undertaking a military initiative that would be so harmful to their own interests. Starting a war with Iran would "break the back" of America's increasingly strained superpower status -- just as surely as the British mistake of invading Egypt and seizing the Suez Canal in 1956 (with help from France and Israel, to be sure) forever ended the United Kingdom's claims to great power status."
There is a historical precedent which Iran hawks would do well to consider -- the Cuban missile crisis. In October 1962, President John F. Kennedy and his advisers were not facing a perfectly legal civilian nuclear program in a country that had no nuclear weapons but did have tense relations with the United States, with some highly questionable and certainly inconclusive intelligence suggesting that the country in question might, at some point, have thought about some of the engineering challenges it would need to solve if it ever wanted to build nuclear weapons at some point in the future. No, in October 1962, the Kennedy Administration had hard, photographic evidence that the Soviet Union -- a nuclear superpower that had had the bomb since 1949 -- had deployed nuclear-armed ballistic missiles in Cuba, thereby obviating the elaborate systems built up by the United States to provide early-warning of a nuclear attack.
The arrival of this intelligence catalyzed 13 days of intense debate among President Kennedy's closest advisers, convened in an ad hoc "Executive Committee" (ExCom) of the National Security Council. During the ExCom's deliberations, some of the most imposing figures in the Kennedy Administration urged the President to order preventive strikes against the Soviet missiles in Cuba; America's senior military leadership recommended strikes coupled with a full-scale invasion of Cuba.
As these arguments garnered momentum, the President's brother, Attorney General Robert Kennedy, pushed back hard. In what Robert Kennedy's biographer, Evan Thomas, rightly describes as "testy exchanges" with former Secretary of State Dean Acheson (who had been asked to join the ExCom's deliberations by the President), the Attorney General used international law to draw a clear red line, making it clear that "My brother is not going to be the Tojo of the '60s". [Note: The reference is to Hideki Tojo, the Japanese Prime Minister who presided over the surprise attack on the U.S. naval base at Pearl Harbor, Hawaii in December 1941.] For the United States to strike the Soviet missiles deployed in Cuba in a similar surprise strike would, Robert Kennedy argued, be a "Pearl Harbor in reverse".
In the end, President Kennedy took care to ensure that all of his major decisions during the Cuban missile crisis plausibly conformed to the requirements of international law. Critically, the naval "quarantine" of Cuba announced by President Kennedy as the crisis headed toward its climax was endorsed by a unanimous vote of the Organization of American States, under the hemispheric defense provisions of the Rio Treaty. The policy choices made by President Kennedy -- including his willingness to "swap" the Soviet missiles in Cuba for aging U.S. missiles forward deployed in Turkey and to abandon the pursuit of coercive regime change in Havana -- resulted in the withdrawal of the Soviet missiles from Cuba while avoiding direct military conflict between the United States and the Soviet Union. President Kennedy's refusal to be pushed into aggressive military action against Soviet missiles in Cuba was indispensable to this outcome.
We concur with the judgment on President Kennedy's handling of the Cuban missile crisis offered President Obama's special envoy for Afghanistan and Pakistan, Richard Holbrooke, see here, who wrote in 2008, before returning to government service:
"If [the United States had attacked and recent scholarship on Soviet decision-making at the time is correct], Cuba and the Soviet Union would have fought back, perhaps launching some of the missiles already in place. One can only conclude that our nation was extremely fortunate to have had John F. Kennedy as president in October 1962. Like all presidents, he made his share of mistakes, but when the stakes were the highest imaginable, he rose to the occasion like no other president in the last 60 years -- defining his goal clearly and then, against the demands of hawks within his administration, searching skillfully for a peaceful way to achieve it."
Fifty years from now, will a reviewer be able to write anything nearly as laudatory about President Obama's handling of U.S. relations with the Islamic Republic of Iran?
Today's Iran hawks would also do well to consider another powerful precedent from the Kennedy era: President Kennedy's commencement address at American University in Washington, DC, delivered in June 1963 -- eight months after the Cuban missile crisis and just five months before Kennedy's assassination. This speech is rightly remembered as the occasion for Kennedy's announcement of negotiations aimed at producing a Comprehensive Test Ban Treaty -- a goal, sadly, that still eludes the international community. (Kennedy, it should be noted, also provided critical impetus for the diplomatic discussions that would lead to promulgation of the Nuclear Non-Proliferation Treaty -- the same treaty that remains today the only appropriate legal framework for dealing with international controversies regarding the Islamic Republic's nuclear activities.) But many passages from the speech seem highly relevant to current debates in the United States about how to deal with Iran:
"Some say that it is useless to speak of peace or world law or world disarmament, and that it will be useless until the leaders of the Soviet Union adopt a more enlightened attitude. I hope they do. I believe we can help them do it. But I also believe that we must reexamine our own attitudes, as individuals and as a Nation, for our attitude is as essential as theirs... [E]very thoughtful citizen who despairs of war and wishes to bring peace, should begin by looking inward, by examining his own attitude towards the possibilities of peace, towards the Soviet Union, towards the course of the cold war and towards freedom and peace here at home...
First examine our attitude towards peace itself. Too many of us think it is impossible. Too many think it is unreal. But that is a dangerous, defeatist belief. It leads to the conclusion that war is inevitable, that mankind is doomed, that we are gripped by forces we cannot control. We need not accept that view. Our problems are manmade; therefore, they can be solved by man. And man can be as big as he wants. No problem of human destiny is beyond human beings. Man's reason and spirit have often solved the seemingly unsolvable, and we believe they can do it again. I am not referring to the absolute, infinite concept of universal peace and good will of which some fantasies and fanatics dream...
Let us focus instead on a more practical, more attainable peace, based not on a sudden revolution in human nature but on a gradual evolution in human institutions--on a series of concrete actions and effective agreements which are in the interest of all concerned...With such a peace, there will still be quarrels and conflicting interests, as there are within families and nations. World peace, like community peace, does not require that each man love his neighbor, it requires only that they live together in mutual tolerance, submitting their disputes to a just and peaceful settlement. And history teaches us that enmities between nations, as between individuals, do not last forever...
And second, let us reexamine our attitude towards the Soviet Union... No government or social system is so evil that its people must be considered as lacking in virtue... [L]et us not be blind to our differences, but let us also direct attention to our common interests and the means by which those differences can be resolved. And if we cannot end now our differences, at least we can help make the world safe for diversity. For in the final analysis, our most basic common link is that we all inhabit this small planet. We all breathe the same air. We all cherish our children's futures. And we are all mortal...
[Also, l]et us reexamine our attitude towards the cold war, remembering we're not engaged in a debate, seeking to pile up debating points... [A]bove all, while defending our own vital interests, nuclear powers must avert those confrontations which bring an adversary to a choice of either a humiliating retreat or a nuclear war. To adopt that kind of course in the nuclear age would be evidence only of the bankruptcy of our policy--or of a collective death-wish for the world...
The United States, as the world knows, will never start a war. We do not want a war. We do not now expect a war. This generation of Americans has already had enough -- more than enough -- of war and hate and oppression. We shall be prepared if others wish it. We shall be alert to try to stop it. But we shall also do our part to build a world of peace where the weak are safe and the strong are just. We are not helpless before that task or hopeless of its success. Confident and unafraid, we must labor on -- not towards a strategy of annihilation but towards a strategy of peace."
Unfortunately, the world learned in 2003 that the United States will sometimes start a war. Now is the time for Americans to remind themselves that it is never in the interests of the United States to do so. There is a diplomatic solution to the Iranian nuclear issue -- particularly if the United States is willing to trade acceptance of uranium enrichment on Iranian soil for tighter international monitoring of Iran's nuclear activities and abandon the pursuit of coercive regime change in Tehran. Will President Obama "rise to the occasion" as President Kennedy did?
This post will also appear on the authors' blog, www.TheRaceForIran.com