Israel: Iran Hasn’t Decided to Build a Bomb

by Kevin Jon Heller

It’s difficult to accuse these guys of being soft on Tehran, so it’s hard to quibble with their conclusion:

The intelligence assessment Israeli officials will present later this week to Dempsey indicates that Iran has not yet decided whether to make a nuclear bomb.

The Israeli view is that while Iran continues to improve its nuclear capabilities, it has not yet decided whether to translate these capabilities into a nuclear weapon – or, more specifically, a nuclear warhead mounted atop a missile. Nor is it clear when Iran might make such a decision.

This statement simply reinforces my argument that killing the Iranian nuclear scientists was an act of terrorism under the Terrorist Bombing Convention.  Although I think killing the scientists would have been illegal under IHRL even if they had been helping to build a nuclear weapon, given that by all accounts it still would have taken Iran years to complete it, the counterargument wouldn’t be completely unreasonable. But If Iran is not even trying to build a weapon at this point, as Israel has apparently concluded, it is simply impossible to argue that killing the scientists was lawful targeted killing under IHRL.

http://opiniojuris.org/2012/01/20/israel-iran-hasnt-decided-to-build-a-bomb/

22 Responses

  1. And now we can move on to a discussion of Israel—alongside India and Pakistan—having never signed the Nuclear Non-Proliferation Treaty (NPT), Israel alone among nuclear-weapons states having never publicly acknowledged their nuclear arsenal nor openly demonstrated their nuclear capability. As Avner Cohen writes in The Worst-Kept Secret: Israel’s Bargain with the Bomb (2010), “In Israel, to this day, the gap between nuclear conduct and basic democratic norms of open debate, the public’s right to know, public accountability, oversight, and transparency remains vast.”

  2. Wow! That was a leap that would make Jonathan Edwards, the triple jump champion, proud.

    First, the idea of terrorism regarding a death that no one knows anything other than Iranian claims. Then, TWO postings with unsubstantiated assumptions and innuendo about Israeli involvement. And finally, assuming Israeli policy assessment and a factual conclusion on Iran’s universely condemned nuclear weapons program on a single unattributed claim in a Haaretz newspaper article.

    As easy as pie, seems like we’ve got a case to file or at least form a committee to investigate Israel – maybe Richard Falk is free? Haven’t we learned our lesson about building IHRL theory on unbased assumptions and policy agendas and calling them CIL?  

  3. Patrick O’Donnell, would it be preferable and ” more democratic” for Israel to demonstrate its nuclear power in a public show of force intended to antagonize, as was the case with Pakistan and India? Or perhaps to have signed the NPT, taken the incentives and then violated it as others have? The neither confirm nor deny approach is by comaparison far more honest and less hostile.

  4. Liz,

    Your query, assuming it’s well-motivated or well-intentioned, is best directed to Avner Cohen, who has written two books on the topic and is an acknowledged expert on the subject. As long as Israeli rulers and academics alike are afflicted with “Iranaphobia,”* we can assume it will continue to violate the aforementioned democratic norms. The larger goal is a nuclear weapons-free world, while a more immediate desideratum would be a nuclear-weapons free Middle East.

    * Haggai Ram, Iranaphobia: The Logic of an Israeli Obsession (2009).

  5. Response…
    Again, “terrorism” should objectively involve an intent to produce “terror” and an outcome of “terror.”  The treaty may be too broad, but was it ratified by Israel and/or Iran?
    Also, human rights?  The human right to life in the ICCPR, the global human rights treaty setting forth its standard and the CIL standard as well, is limited to freedom from “arbitrary” deprivation of life.  As noted in postings regarding human rights law and the laws of war, the laws of war actually provide, where applicable, a higher threshold or more stringent standard that human rights law. 
    Moreover, outside the territory of a party to the ICCPR the Iranian scientist would have to be in the actual “power or effective control” of a state party (through its agents).  Therefore, it would seem that the Iranain scientists would not have a human right to life under the circumstances (if they were not in the actual power or effective control of a party to the ICCPR) and even if they did the standard re: “arbitrary” is potentially quite malleable.  Human rights law is global in reach, but WHO has a right under a particular circumstance and, then, WHAT rights are we addressing?
    The more salient proscription is not human rights law as such but the law concerning permissible self-defense and I, for one, read Art. 51 of the UN Charter as expressly requiring an “armed attack” and, therefore, that a process of “armed attack” must have actually begun.
    What do others think about UN Art. 51?

  6. This statement doesn’t “reinforce” anything. It simply doesn’t have anything to do with your argument. Stop flattering yourself Heller, this blog has been getting a little too biased and narcissistic as of late.

  7. Response…
    p.s. — and there is no definition of “terrorism” in the treaty.

  8. Re: Henning.  “Biased” = “reaches conclusions I disagree with.”  And only someone who knows nothing about international law could say that a reliable conclusion that Iran is not currently building a nuclear weapon is not relevant to whether a targeted killing is legal under IHRL.

  9. But surely international law brings into account the devastating effect a nuclear attack may have on civilian population. Right? The safety factors a state would be allowed to take in such a case must be much greater than those it can take to avoid a conventional attack. Isn’t it?
     
    And if we are at it, who said that it is simply impossible to argue that a preventive measure is legal, because the potential aggressor hasn’t decided yet whether it should launch an attack or not. Which authority can you cite to support that?

  10. Response…
    Yaniv:  Under the United Nations Charter, most uses of armed force by a member are proscribed under Article 2(4) (in my opinion, but there is a split, not all).  Threats to the peace prior to an armed attack are to be addressed by the Security Council, which, of course, might be veto-deadlocked.  Article 51 of the Charter allows a state to engage in its inherent right of self-defense, as it states, in case of an “armed attack,” not before.  Article 52 also allows relevant regional organizations (such as the OAS, NATO) to authorize and engage in “regional action” (in my opinion, such as NATO action in Kosovo) while the Security Countil is veto-deadlocked.
    Some prefer that “anticipatory” self-defense be permitted when an armed attack has not occured yet but the attack is “imminent.”  Hardly anyone argues that “preemptive” self-defense should be permissible way before an actual armed attack is “imminent.”  And the problem with anticipatory self-defense is that it does not fit within the actual text of Article 51 of the U.N. Charter.
    For some of these reasons, when Israel took out a nuclear reactor in Iraq years ago, it was condemned by the U.N. Security Council.

  11. a) basing any legal opinion on an Haaretz report, an anti-regime newspaper, is quite a bold judicial act.

    b) I was wondering, based on the “right of resistance” that is claimed as justification for Arab acts of violence (what some call “terror”) against Israelis, would the killings of Iranian regime officials by local Iranians who feel oppressed or simply were beaten up by the Basij militia?

  12. Anti-regime newspaper? What does that even mean? It’s insufficiently captive to the state so it’s off limits? Seriously?

  13. Article 2(4) says: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”
     
    Killing a single person by a bomb hardly affects the territorial integrity or political independence of Iran. Article 51 grants the right of self-defense in the case of an armed attack. It by no means prohibits preventive measures, and certainly not in the case of military nuclear program. Should a condemnation by the security council be considered binding in any sense? Why is it an issue at all?

  14. Hi, Yaniv. 

    Doesn’t Art 51 state expressly that the armed attack in question must be in the process of occurring? Does not that use of the present tense indicate quite clearly that self-defence may not be exercised even against an imminent attack, let alone one which at the present point in time is hypothetical?

    See e.g. Dinstein, War, Aggression and Self-Defence (4th edn, 2005) 182-7.

  15. One might argue that this is the usual quandary: Israel should be allowed to target any nuclear scientist in Iran to the extent Iran is allowed to do the same in Israel. Indeed, according to many, this is the essence of “law”: providing equal protection for all, so that you are allowed to claim something as long as you accept that others can claim the same of you.

  16. Article 51 is an exclusion. It allows states in the case of an armed attack to protect themselves against it, regardless of Article 2(4) for instance. While I have not read Dinstein’s arguments, this is not the first time he is producing a bizarre interpretation of the law (his claim that Gaza is still an occupied territory is just one example).

  17. Perhaps I should also say that while you are on a firm ground saying that Israel cannot enjoy the protection of Article 51, it certainly does not prohibit in any sense the assassination of the Iranian scientist. This scientist, despite KJH’s claim is a legitimate target since he participated in a nuclear military program.

  18. “KJH’s claim” had a legal reasoning attached to it with some relevant rules of international law – not sure whether you missed that part. Contrary to your vague Article 51 ramblings.
    And thanks for clarifying that Iran is definitely running a nuclear military program. Saves time for all the intelligence agencies and the UN, who were still not that sure. After your comment on this blog, we finally know the truth.

  19. KJH’s claim is based on the argument that Israel is not allowed to attack the scientist because:
     
    1. The Mossad is a civilian agency, so Israel cannot enjoy article 19(2) of the relevant convention.
    2. The scientists are civilians, so targeted killing is not allowed.
     
    The first argument is terribly unconvincing. Let’s assume that the IDF chief of staff had appointed all perpetrators as IDF officers a day before the assassination. Would that absolve them of their “crime”? As for the second, if this was a legitimate civilian program, why are all those sanctions applied by the US, the EU, and even the security council?
     
    And suppose that we are not sure yet that this is a military program. By yours and KJH’s standards Israel should wait, as it seems, till there is an unequivocal proof that Iran is about to build a bomb, and then that it is going to be used against it. Such certainty can most probably be assured  only after the fact. Again, which authority can you cite that prohibits a preventive attack on a senior officer (even though he is not wearing uniform) in a nuclear program that appears to be potentially harmful?

  20. To Will – what does “Anti-regime newspaper” mean?  It means it is nigh anti-Zionist, its reports are ideologically-.driven, it has been unreliable on facts regarding the government before, it hates Netanyahu with a passion and that therefore, someone presuming to base a learned legal opinion on its reporting should be at the very least circumspect and at best, hesitant.

    A newspaper need not be”insufficiently captive to the state” to be “off limits” but should be judged on its merits, or lack thereof.

    Seriously!

  21. And suppose that we are not sure yet that this is a military program. By yours and KJH’s standards Israel should wait, as it seems, till there is an unequivocal proof that Iran is about to build a bomb, and then that it is going to be used against it. Such certainty can most probably be assured  only after the fact. Again, which authority can you cite that prohibits a preventive attack on a senior officer (even though he is not wearing uniform) in a nuclear program that appears to be potentially harmful?

    So, now we know that any state that feels threatened by Israel’s nuclear programme can kill any Israeli scientist, technician, driver, and the like involved in studying, producing, moving, storing, and maintaining Israeli nuclear weapons. This will never be considered a crime in Israel or elsewhere, because – after all – how could that state have waited for Israel to fire the first shot? I am sure this conclusion will be widely accepted in Israel and beyond.

  22. Since I am unable to find an authority which prohibits the Israeli(??) attack, there is nothing I can come up with that can render a similar Iranian attack unlawful by the international community. Of course, Israel has every right in such a case to try the perpetrators on its soil for violating its domestic code, so does Iran right now. The question, I believe, is whether the international community is under any obligation to act against Israel(??) and the perpetrators. Unless you can come up with a specific provision, which hopefully relies on something more convincing than the fact that a civilian agency was in charge of the operations, I simply do not see why should anybody be obliged to act.

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.