06 Jun The Legal Case for Invading Iran
I’m not sure what I think about this, but international law commentators David Rivkin and Lee Casey have an article today in the Washington Post laying out the legal case for either Israel or the U.N. Security Council to attack or invade Iran. Here is the crux of their argument:
. . .Ahmadinejad’s rant [against Israel] features a direct and unequivocal threat, and it gives Israel a valid casus belli — under both Article 51 (self-defense) of the U.N. Charter and customary international law — to use preemptive force as a means of ensuring that Iran cannot make good on its stated intentions.
Indeed, the International Court of Justice, in a 1996 opinion analyzing the legality of the threat or use of nuclear weapons, found that use-of-force threats that violated Article 2.4 and were not otherwise justified under Article 51 also posed a threat to international peace and security, thereby further infringing the U.N. Charter. Since Israel has not committed aggression against Iran, Ahmadinejad’s statements cannot be justified as self-defense. They have, in fact, created a legally cognizable threat that can, and should, be addressed by the Security Council under its Chapter VII powers, which are concerned with threats to peace.
As we’ve discussed on this blog before, Ahmadinejad’s statements about destroying Israel could be seen as an incitement to genocide or simply a threat to international peace and security. At the very least, I suppose Israel has a stronger case for attacking Iran in preemptive self-defense. But this is a very complex determination. Did Ahmadinejad actually speak for Iran? Was he speaking metaphorically? Does he pose a real threat?
I do agree, though, that Ahmadinejad’s threats against Israel deserve to be part of the conversation with Iran. If any other world president made statements like that about any other country, there would be serious panic in the air. But since every other middle eastern country presumably already hates Israel, Ahmadinejad gets a free pass.
This post reveals more about the dangerous fantasies entertained by some international law scholars and ‘commentators’ than it does about the current diplomatic state of affairs regarding Iran and its nuclear power program. We would have been better served by a discussion more directly related to the following: Iran says Western proposal ‘positive’ By ALI AKBAR DAREINI and GEORGE JAHN, Associated Press Writers Iran and the United States had a rare moment of agreement Tuesday, using similar language to describe “positive steps” toward an accord on a package of incentives aimed at persuading Tehran to suspend uranium enrichment. Diplomats said the incentives include a previously undisclosed offer of some U.S. nuclear technology on top of European help in building light-water nuclear reactors. Other incentives include allowing Iran to buy spare airplane parts and support for joining the World Trade Organization. Tehran is under intense international pressure to accept the deal in exchange for putting on hold a uranium enrichment program that the West fears could lead to the creation of nuclear weapons. Iran’s top nuclear negotiator, Ali Larijani, said the proposals had “positive steps” but that talks were needed to clear up ambiguities. Iran promised to study the proposals seriously,… Read more »
It seems to me that the article by Rivkin and Casey also mixes up the legal concepts involved. It may be that Mr Ahmadinejad’s words amount to a threat of the use of force, and that they therefore violate Article 2 (4) of the Charter, but threats, like minor actual uses of force, do not give rise to a right of self-defence. This much appears from the ICJ’s seminal case Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA), ICJ Reports (1986), pp. 14 et seq., which remains as authoritative as ever: see Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Separate Opinion of Judge Higgins, para. 33. Also, I am shocked that Rivkin and Casey, as well as Prof Ku, accept with no trace of discussion that there is a right of preemptive self-defence. This would have to be in much the same terms as the doctrine of preemption advocated by the Bush administration (and now, in theory, by Vladimir Putin), and Article 51 of the Charter certainly does not allow for such a wide reading (in none of the authentic versions). Nor has state practice ever been in favour of such… Read more »
Thanks so much Tobias: you work too hard for these guys (i.e., those who should do their own homework). I’ve begun to wonder if it’s really worth the effort….
thanks for your comments, however snide. I do think that commenters should remember that this blog is an ongoing conversation, not a serious of law review articles. When we post thoughts, we by definition don’t do any homework. If we did, we would never post. I do think that there are problems in the Rivkin/Casey argument, and I thank Tobias for identifying them. I think the Wall decision is hardly a great model of sensible decisionmaking, but it is obviously relevant here (And Rivkin/Casey should usefully acknowledge this). I certainly didn’t mean to suggest there is wide acceptance of the right to premptive self-defense. I do think there is some support for it though, and that a credible argument can be made for it. Just because a number of international law commentators disagree doesn’t make it so. Israel actually has a much stronger case than the U.S. in that the threat is much more immediate and serious. Use of force law is one of the murkiest areas of international law and one most likely to spark serious fundamental disagreements. I actually think use of force is one of those areas where international law loses its credibility to the extent its… Read more »
I doubt anyone is confusing this blog with serious law review articles. Nonetheless, as Roger’s many posts make clear, the boundaries between these two genres are increasingly and clearly blurred or fuzzy at points, or else we wouldn’t have contributors discussing their own articles, raising issues of some contention in international law and politics, mention of the ‘interstices of the ivory tower and pop culture,’ etc. Moreover, there’s hardly much of a ‘conversation’ here, unless you’re using this word in a stipulative, highly attenuated, or metaphoric sense. For something like blogging ‘coversations’ one should look at Crooked Timber or the recent discussion at Leiter Reports on ‘non-compassionate omnivorism.’
I have tried again and again to initiate a ‘conversation’ of sorts but an examination of these attempts will provide ample evidence that I have miserable failed in this endeavor.
Incidentally, there was nothing ‘snide’ about my comments if by that you meant dishonest or false, etc.
Fair points. Thank you for the reply. I didn’t mean to say that there is nothing to be said in favour of a right of preemptive self-defence. It just so happens that I find the case for it more than slightly flawed, not necessarily in principle, but certainly under the Charter as it stands. As for the citations in my comment, this is simply a quick translation of a footnote in one of my (graduate) essays; nothing definitive about it, and certainly not a lot of homework (so I don’t really work too much for these guys. Besides, I still think the exchange of ideas on this site quite valuable, so some slight amount of work on my part may be in order). As for the Wall case, there are a few issues especially with its treatment of Article 51. I only cited Judge Higgins’ opinion for its reference to the Nicaragua case. She basically said that she didn’t like the Nicaragua holding very much, but that she had to accept it, Nicaragua being ‘the law as it stands’ (or something like that). Incidentally, I tend to do some homework for my blog posts, which is why there are so… Read more »
Of course it should read ‘miserably.’
I might have conceded that it’s possible to imagine this blog as ‘an ongoing conversation,’ however we would then have to qualify that conversation as more often than not ‘solipsistic,’ yes?
That was in reply to Julian’s comment, obviously.
As for the blurred line between blogging and law review articles, there are certainly enough posts on Opinio Juris to testify to the merits of legal blogging. In-depth analysis isn’t necessarily, at least not always, one of them, but there are others.
Up-to-date information, run through a filter of legal understanding, as it were, must be one of them.
Tobias,
At the risk of carrying on a conversation, 😉 I second your characterization here…. I don’t expect in-depth analysis, but I do appreciate when I’m referred or linked to sources that provide at least a taste of same, for it’s clear not all of us are always on, so to speak, the same page.
No doubt middle age has found me a bit more impatient, cranky…(by way of explanation for what Julian calls ‘snide’).
Others may be reading the Rivkin and Casey article differently from me, but I certainly do not read it as arguing for preemptive self-defense. They write, “Not to put too fine a point on it, but this is how the U.N. system was, and is, supposed to work. When a clear threat to peace arises, it is incumbent upon the Security Council to act in defense of the threatened party to head off the unilateral use of force and to advance “collective security.” This imperative is particularly compelling when the very legitimacy of the threatened party and its right to independent national existence have been challenged. Such a challenge goes beyond the violation of Article 2.4 and raises the specter of the most heinous international crimes, including genocide.” This reads to me like an argument for Security Council action against Iran, which is of course a completely different animal. Are others suggesting that the Security Council is constrained from taking preemptive action in the same way that individual states are under the preemptive self-defense doctrine?
Roger Alford
‘Ahmadinejad’s rant features a direct and unequivocal threat, and it gives Israel a valid casus belli — under both Article 51 (self-defense) of the U.N. Charter and customary international law — to use preemptive force as a means of ensuring that Iran cannot make good on its stated intentions.’–Does this not refer to Israel having a preemptive right of self-defense rather than to any possible Security Council action (or perhaps Israel, with SC blessing…)? Yet the authors clearly believe the US should pressure the SC to take preemptive action: I think the hidden premise here is the belief that this will, in the end, not succeed, giving Israel the requisite justification to act analogous if not identical to the sort of justification the US invoked in the invasion of Iraq (UN/SC failed to act decisively, etc.)or the US-led NATO intervention in Kosovo.
Roger,
You are quite right that we should distinguish between preemptive self-defense and Security Council action. But the article does say that “Ahmadinejad’s rant features a direct and unequivocal threat, and it gives Israel a valid casus belli — under both Article 51 (self-defense) of the U.N. Charter and customary international law — to use preemptive force as a means of ensuring that Iran cannot make good on its stated intentions.”
This is certanly not permissible under international law, at least as it is accepted by the overwhelming majority of commentators, states and the ICJ. One needs an armed attack, or a Caroline type situation, not threats.
But you are also quite right that the Security Council can indeed react to any threat to international peace, in a way which it deems appropriate, and this what Rivkin and Casey argue for. This does not mean, however, that even the Council can do what it pleases. It is not legibus solutus, as it were, and its actions can also be lawful or unlawful – see the Tadic judgment on jurisdiction of the ICTY Appeals Chamber.
In any case, action is warranted.
Patrick and Marko,
You are right that the one sentence you both quote suggests more than just Security Council action. But the balance of it seems to address Security Council action.
We appear to be in a very difficult situation in responding to the profound threat of a nuclear Iran. Let’s assume the threat of a nuclear Iran only grows, such that in the coming months we have Iran wielding nuclear capability and openly threatening to destroy Israel. There would be political will for preemptive self defense by Israel, but questionable legality. There also would be legality of action by the Security Council but the lack of political will. That is the future we may face unless Iran backs down.
Roger Alford
I find this whole conversation incredibly interesting but did not stumble upon it until recently so I apologize for the belated response. I think it is important to differentiate the two legal uses of force under the UN charter: The right to self-defense and the right to use force by the Security Council under Chapter VII. Just because there is no political will for SC-authorized force does not mean that states have the right to act when the SC does not. This principle is weakened, of course, by the invasion of Iraq, and NATO’s bombing in Kosovo—though I don’t find this grounds to invalidate the UN Charter. Roger makes a good point when he says: “There would be political will for preemptive self defense by Israel, but questionable legality. There also would be legality of action by the Security Council but the lack of political will.” NATO’s bombing of Kosovo is on questionable legal grounds, though it seems that the international community overlooked this as permissible due to exceptional circumstances. Evidence of this is the non-aligned movement, which discussed but refused to agree to a resolution condemning Kosovo as a violation of international law. Even though, at the very next… Read more »