Bomb Iran? Not Yet

by David Sloss

Iran’s emerging nuclear weapons program poses a grave threat to U.S. national security interests. If left unchecked, Iran may well have a nuclear weapon within the next decade, if not sooner. See this article in the Washington Post. An Iranian nuclear weapon threatens U.S. interests in at least two distinct ways. First, there is a significant risk that Iran might use its nuclear weapons to attack Israel, sparking a nuclear war in the Middle East. Second, there is also a real danger that Iran might supply nuclear weapons or weapons-grade nuclear material to a terrorist group, such as Al Qaeda, which might attack the United States directly. In light of this threat, it may be wise for the United States to launch a preemptive strike to destroy key Iranian nuclear facilities. However, the timing of such a strike is critical, and the appropriate time has not yet arrived.

Before Iran can build a nuclear weapon, it must produce sufficient quantities of weapons-grade nuclear material: either plutonium or highly enriched uranium. At present, the uranium enrichment route appears to be the more immediate threat. Iran has a uranium enrichment facility at Natanz, about 200 miles south of Tehran. See this link. At Natanz, there is a pilot plant that has produced small quantities of enriched uranium. If Iran relied exclusively on the pilot plant, it would take many years to produce enough enriched uranium for a single nuclear weapon. In addition to the pilot plant, though, Iran is building a commercial-scale enrichment plant. See the IAEA report here. Iran is steadily expanding the commercial plant by adding new centrifuge machines. As Iran continues to install new machines, its capacity to produce weapons-grade uranium will increase.

In the near term, IAEA inspectors who are on the ground in Iran will be able to verify that Iran is not using the commercial-scale facility to produce weapons-grade nuclear material. The fear, though, is that Iran will produce low-enriched uranium (which is not useable for nuclear weapons) under the watchful eye of IAEA inspectors while it continues to install new machines. Then, once Iran has gained sufficient experience operating the enrichment plant, and installed a sufficient number of centrifuge machines to acquire large-scale production capacity, it will kick out the IAEA inspectors and begin rapid production of weapons-grade uranium.

In light of the threat that an Iranian nuclear weapons program would pose, the United States must not allow this scenario to unfold. In the near term, it makes sense to pursue negotiated solutions, and to work through the U.N. Security Council to continue application of sanctions. If, however, Iran continues to expand its uranium enrichment capacity, the United States should launch a preemptive strike to destroy both uranium enrichment facilities at Natanz before Iran attains the capacity to produce one bomb’s worth of material per year. The best approach would be to obtain Security Council authorization before launching a preemptive strike. However, if Russia and/or China balk (which seems likely), the U.S. should be prepared to act unilaterally.

In contrast to an attack on a nuclear reactor, or a nuclear fuel reprocessing plant, the radiological harm caused by attacking a uranium enrichment facility would be fairly small. No doubt, the political repercussions of such an attack would be dramatic. Even so, the risk of inaction is sufficiently high that we should be prepared to handle the political fallout from a U.S. attack on Iran to avoid the security risks associated with an Iranian nuclear weapon.

Some of my international law colleagues may contend that a preemptive attack on Iran’s uranium enrichment facility would be a violation of international law. That is true. I will not attempt to justify such an attack by using the rubric of self-defense, because any such justification stretches the concept of self-defense well beyond the breaking point. In any case, there are times when it is necessary to violate international law in order to protect vital national security interests. With respect to the Iranian nuclear threat, we have not yet reached that point – but we are getting close.

http://opiniojuris.org/2007/03/07/bomb-iran-not-yet/

9 Responses

  1. However much I appreciate both the threat a muclear Iran poses, not just to the United States but generally, and however much I appreciate your candor in saying that any preventive strike against Iran by the US without Security Council authorization would be illegal, I somehow still fail to see the point behind advocating military action.

    International law completely aside, for the policy you propose to be worthwhile, you would still have to provide evidence for several points, and not just mere assertions:

    (1) Does a nuclear Iran indeed pose such extreme risk toward US interests? Is it really that much more dangerous than, say, North Korea, or even Pakistan? I am quite aware of the bunch of rather sordid characters that are ruling Iran, but they do not strike me as being exactly suicidal. Using nuclear weapons against Israel would be exactly that, suicide for Iran, as Israel would retaliate with a vastly superious nuclear arsenal, and as the US and other members of the international community would attack and occupy Iran in a matter od days. Even giving a nuclear weapon or two to terrorists would be only marginally less suicidal, as my understanding is that the uranium used in a bomb can be traced quite precisely to the plant in which it was enriched. Again, retaliation would be swift and overwhelming, even if Iran used a proxy.

    (2) You fail to provide any evidence that an attack against Iran would actually be successful in achieving the immediate goal. The serious analyses I have read so far all suggest that an attack would at best only disrupt the Iranian program for a few years, but that surgical strikes alone ultimately cannot prevent Iran from building a nuclear weapon. Betting on such delays in order to wait out the Iranian regime, in expectation of either a change of heart or internal change, would be a fool’s quest. Outside strikes on Iran would only serve to solidify the hold fundamentalists have on Iranian society, and any hope for a moderate, gradual reform would be lost.

    (3) Finally, you also provide no evidence that the possible benefit from striking Iran outweighs the incredible amount of fallout that the US will suffer from such an action. It would not only totally alienate the Islamic world – if that were even possible any more then presently – but it would completely alienate the US from all of its allies, save for Israel, with relations rupturing at every point.

    So, to sum up, this to me reeks of a rather simplistic rational choice equation: as the consequences of a nuclear strike by Iran or one of its proxies against the US would be so horrendous, even if the actual risk of them is very small, that still justifies the use of preemptive force. I just don’t see that sort of equation working, even if one has a rather cold-blooded, Kissingerian view of international relations. As far as I can tell, Iran, despite its bluster, wants a nuclear weapon for the same reasons as did North Korea: as an insurance policy against regime change from the outside. And even though my confidence in the rationality of Iranian leaders is not all that great, they just don’t strike me as the kind of people who would, for the sake of killing Americans and Israelis, in any way diminsh their own hold on power. Staying in power, I think, is all they care about.

  2. I’m more concerned about point #2 in Milanovic’s response.

    Essentially, merely blowing up Iran’s centrifuge facility will be a setback of the most temporary nature. Furthermore, it only guarantees the next facility will be several hundred feet underground which will necessitate the use of nuclear weapons to destroy it.

    Mr. Milanovic assumes the Iran will retain the same government which will possess the nuclear weapon and remain deterable. There’s no telling whose hands a Iranian nuclear weapon might end up in if the country descends into chaos and/or civil war.

  3. Just a curious question, David, from someone peripheral to the field: When you write that a U.S. strike would “violate international law,” are you referring to any customary law (and if so, what?), or “only” to the U.N. Charter?

    If the answer is the latter, it would raise an interesting domestic constitutional question (one David has written about), namely, whether the President alone could intentionally cause the U.S. to violate a treaty, or whether instead a superseding statute would be required (wholly apart from the Declare War Clause question).

    Thanks in advance.

  4. P.S. Did the Clinton Administration ever provide any public (or private, for that matter) justification for why the Kosovo bombing in 1999 did not violate the U.N. Charter or, alternatively, why it was permissible for the U.S. to violate the treaty?

  5. Marty,

    The US, like many of the NATO countries, had several, overlapping justifications for the 1999 bombing of Serbia. Some countries, like the UK, focused on the doctrine of humanitarian intervention as a customary exception to the prohibition on the use of force in Article 2(4) of the UN Charter. Others, like France, argued implied Security Council authorization (as the US did in respect of Iraq, for example), saying that NATO was merely enforcing Security Council Chapter VII resolutions.

    These states, and the US most of all, kept their different legal arguments deliberately confused together, as none of these by itself would have sufficed. For the US position, you can see the transcript of the oral arguments before the International Court of Justice in the Legality of the Use of Force cases, dismissed on various jurisdictional grounds. The US argument is here, and the justifications are professed in para. 1.7 of the CR:


    As you have already heard, the actions of the Members of the NATO Alliance find their justification in a number of factors. These include:

    - The humanitarian catastrophe that has engulfed the people of Kosovo as a brutal and unlawful campaign of ethnic cleansing has forced many hundreds of thousands to flee their homes and has severely endangered their lives and well-being;

    - The acute threat of the actions of the Federal Republic of Yugoslavia to the security of neighbouring States, including threat posed by extremely heavy flows of refugees and armed incursions into their territories;

    - The serious violation of international humanitarian law and human rights obligations by forces under the control of the Federal Republic of Yugoslavia, including widespread murder, disappearances, rape, theft and destruction of property; and, finally

    - The resolutions of the Security Council, which have determined that the actions of the Federal Republic of Yugoslavia constitute a threat to peace and security in the region and, pursuant to Chapter VII of the Charter, demanded a halt to such actions.

  6. I wanted to offer a response to the points raised by Mr. Milanovic.

    1. A nuclear Iran really does pose more of a danger than a nuclear Pakistan or North Korea. Pakistan and North Korea both have secular leaders who want to retain power and enjoy the trappings of power. Iran is run largely by religious fanatics who are not opposed to dying in a nuclear holocaust if they think that’s the best way to serve God.

    2. If a preemptive strike delayed Iran’s acquisition of nuclear weapons by five years, I would call that a success. A lot can happen in five years. If Iran’s leaders were persuaded that the pursuit of nuclear weapons made them a more likely target of U.S. attack, rather than shielding them from external attack, they might decide that the pursuit of nuclear weapons is not worth the costs.

    3. I think you overstate the political costs of a preemptive strike. When Israel attacked the Osiraq reactor in Iraq in 1981, most countries condemned Israel publicly and thanked Israel privately. I think a U.S. strike against Iran would elicit a similar response, especially from our Allies, and even from some Arab countries.

  7. In response to questions raised by Marty Lederman:

    1. When I said that bombing Iran would be illegal, I was thinking of the UN Charter. I don’t really have a view as to whether it would violate customary international law.

    2. The constitutional question is a tough one. As you know, I have argued elsewhere that the President lacks the constitutional authority to violate the Geneva Conventions, absent congressional authorization. See here. I’m inclined to think, however, that there is a key difference between jus ad bellum and jus in bello. I haven’t thought this through completely, so I could be persuaded otherwise, but I do believe that the President has the constitutional authority to launch a military strike in violation of Article 2(4) of the UN Charter, even without congressional authorization. My argument would be primarily functional. There are powerful pragmatic reasons why the President must have the authority to initiate limited military actions without waiting for Congress to act. I know that others contend, for functional reasons, that the President also needs the authority to violate jus in bello, but I’ve never been persuaded by those arguments.

  8. To quote Mr. Sloss:

    2. If a preemptive strike delayed Iran’s acquisition of nuclear weapons by five years, I would call that a success. A lot can happen in five years. If Iran’s leaders were persuaded that the pursuit of nuclear weapons made them a more likely target of U.S. attack, rather than shielding them from external attack, they might decide that the pursuit of nuclear weapons is not worth the costs.

    The unfortunate fact of the matter is, if we are to prove that the simple possession of nuclear weapons is not a deterrance to the United States, a great number of people are going to die, one way or another.

    The disadvantage of ruling by threats is that on occassion, you must follow through. If we are to (as all parties present seem to agree we would) violate international law, are we not obligated to the make the strike sufficiently deadly? If we attempt but largely fail, we’ll have weakened both our position and that of the international framework simultaneously.

    Such a strategem seems to leave little room for half measures.

  9. Matthew,

    The goal of a preemptive strike would be to destroy the facilities, not to kill a lot of people. Thus, we’re not obligated to make the strike deadly. In fact, we’re obligated under the laws of war to minimize collateral damage as much as possible. I doubt it’s possible to destroy the uranium enrichment plants without killing some people. But if Iran acquires nuclear weapons, the likelihood is that many more people will die.

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