Would an attack on Iran be legal?

Conventional Weapons, Defence & Human Security, News

Conspicuously absent from most analyses on the prospect of military action against Iran over its nuclear program is the question of whether an attack by the U.S. or Israel would be consistent with international law.

Concerns raised in Western policymaking circles regarding a military intervention in Iran have little to do with its legality. Typically cited are the staggering costs of a prolonged war, its impact on oil prices and the broader global economy, the strategic difficulty of another frontline for U.S. troops in addition to Afghanistan, and the risk of heightened tensions in the already volatile Middle East.

The Associated Press matter-of-factly points to “the desire to avoid disrupting oil markets in the summer, when gasoline prices are usually already higher” as a key factor influencing the Obama Administration’s stand. During his pre-Super Bowl interview, Obama reiterated to NBC News that the U.S. would “not take any options off the table.” But he warned that a military intervention in Iran “is disruptive” for the U.S. and “could have a big effect on oil prices.”

A recent article in The Atlantic argues that a war with Iran would cost trillions of dollars, and asks whether those who are advocating it would be willing “to pay more taxes” to fund it.

But few seem to challenge the legality of a unilateral strike against Iran, or the fact that it would be based on dubious assumptions.

Instead the holdup revolves around whether Israel decides to strike Iran, and whether it will go it alone or with U.S. support. The international community is to stand idly by as these powers decide on a course of action, irrespective of longstanding international legal norms.

To be sure, Article 51 of the United Nations Charter does provide for the individual and collective right of self-defence “if an armed attack occurs against a member of the United Nations.” But even interpretations of this article that allow for preemptive strikes limit its applicability to situations in which an attack is unequivocally imminent.

Iran—despite its often belligerent rhetoric—has attacked no one, and there is no clear indication that it will do so in the immediate future. Rooted in a problematic application of preemption doctrine, the current atmosphere is reminiscent of the highly controversial run-up to the 2003 military occupation of Iraq.

Still, while there is no solid evidence that Iran intends to develop nuclear weapons, the country has undeniably been less than forthcoming about the details of its nuclear program. The onus is thus on the Iranian government to provide assurances to the international community that its nuclear activities do not have a military dimension. To this end, a crucial step is the adoption of International Atomic Energy Agency’s additional protocol which provides for a more stringent regime of IAEA inspections.

But to demand that it stop enriching uranium altogether runs contrary to the precepts of the Nuclear Non-Proliferation Treaty, which affords all states the right to engage in enrichment activities in pursuit of the benefits of nuclear energy.

In this sense, sanctions imposed on Iran by the UN Security Council—which would only be lifted “if, and so long as, Iran suspended all enrichment-related” activities—deny Iran a right exercised by other states. More than a dozen states currently possess enrichment facilities.  Some—like Japan—could in theory move toward the development of nuclear weapons.

The prospect of a nuclear arms race in the Middle East is sobering. But a dispassionate assessment must recognize that the only country in the region currently in possession of nuclear weapons—and one of the very few in the world outside the NPT—is Israel, which, in an ironic twist, is the one most loudly banging the war drums against Iran for allegedly triggering a nuclear arms race.

A recent poll conducted by YouGov revealed that nearly half of Americans (44 per cent) would support bombing Iran as the way to deal with the stalemate over its nuclear program. This is more support than found in Germany, Britain or the Middle East. Meanwhile, talk of an Israeli military strike on Iran is not subsiding, with some reports pointing to an attack taking place as early as April.

Further compounding the complexity of the situation, the deputy head of Iran’s armed forces, taking a cue from the West’s rhetoric, has reportedly declared that his country could also take preemptive action to protect its national interests.

Circumstances may change, and Iran could openly move toward the development of nuclear weapons in clear defiance of the international community—as could any other country with the intention and wherewithal to do so. Under current conditions, however, a military intervention over the Iranian nuclear program would be hardly justifiable under international law.

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