07 Jan The London Times Reports on Alleged Israeli Nuke Strike Plans Against Iran
According to the Sunday Times of London:
Israel has drawn up secret plans to destroy Iran’s uranium enrichment facilities with tactical nuclear weapons.
Two Israeli air force squadrons are training to blow up an Iranian facility using low-yield nuclear “bunker-busters”, according to several Israeli military sources…
The Israeli weapons would each have a force equivalent to one-fifteenth of the Hiroshima bomb.
Under the plans, conventional laser-guided bombs would open “tunnels” into the targets. “Mini-nukes” would then immediately be fired into a plant at Natanz, exploding deep underground to reduce the risk of radioactive fallout.
“As soon as the green light is given, it will be one mission, one strike and the Iranian nuclear project will be demolished,” said one of the sources.
The plans, disclosed to The Sunday Times last week, have been prompted in part by the Israeli intelligence service Mossad’s assessment that Iran is on the verge of producing enough enriched uranium to make nuclear weapons within two years.
The full article is here.
I, for one, would like to know what Opinio Juris contributors think about this….
Yes, I’d like to hear opinions on how Iran will/should handle this. And will this conflict spread to the region? Is this a new cold war? What are the sides?
I find it very unlikely that Israel would use nuclear weapons, even low-yield ones, in the Middle East without being attacked first. The foreign policy ramifications and the widespread condemnation such a move would provoke, its blatant illegality notwithstanding, would outweigh any possible benefits that Israel might draw from temporarily hindering Iran’s nuclear program.
Sorry for not having put in further analysis from the get go. I’m trying to write an article and I saw this and wanted to point it out this report but didn’t think I had time for much more. But since you asked…I’ll just mention a couple of thoughts that come to mind.
Reading the Times article, of course the main legal issue that springs up is the whole question of pre-emptive self defense/anticipatory self-defense that was so hot in the run up to the Iraq War. So, for me, the interesting questions are (a) has the international community come to some sort of consensus on the legality of pre-emption and (b) the issue of proportionality of using nuclear weapons, even tactical nukes, when you have not yet been attacked (the legal side of Marko’s point).
On the first issue: John Ikenbery, Charles Kupchan, and other political scientists have written (persuasively in my opinion) that one of the ways hegemonic states (like the U.S.) project power is through the socialization of other states into their world view. This can be all well and good for the hegemonic power until other countries start acting based on these new norms to which they have been “socialized” in ways that the hegmon did not anticipate. (As an aside, I’ll mention that I think the biggest example of this is the U.S. arguing in favor of international war crimes tribunals for decades–WWII, ICTY, ICTR–but then bolting when others really took up the charge in favor of the ICC.)
Of course, Israel doesn’t need to be socialized into accepting a norm of pre-emption; they argued in favor of that norm when they bombed the Iraqi reactor in ’82. But that action was roundly condemned by the Security Council in a resolution that that U.S. chose not to veto. Now the U.S. has not only come out in favor of pre-emption but, picking up the arguments of Detlev Vagts and Jose Alvarez on Hegemonic International Law, the U.S. has worjked through the UN Security Council to essentially support these norms via (a) the SC resolutions prior to the invasion of Afghanistan where it found a right to use force in self-defense although any threat to the U.S. at that point was “clandestine and unpredictable” and (b) to a lesser extend the SC resolutions around the invasion of Iraq. In neither case did the SC simply state it favored pre-emption but, as Alvarez explains, it wrote resolutions that were indeterminate enough to give the U.S. lots of interpretive room if they needed to justify such activities in the future. (See Jose Alvarez, Hegemonic International Law Revisited, 97 Am. J. Int’l L. 873 (2003) and Detelv Vagts, Hegemonic International Law, 95 Am. J. Int’l L. 843 (2003))
But how will the U.S. and other countries react if Israel (or some other nation) takes up the interpretation of this now-indeterminate norm to justify their own actions? We always talk about how it is important to appreciate the reciprocal—follow the law because you want other states to do the same when in regards to you—but this is a whole other level of complexity when one state makes a norm indeterminate and then others may pick up the argument.
I’ll leave the proportionality issue aside, only to note that Alvarez argues that it too faces increasing indeterminacy as a result of these resolutions and the actions of the U.S. While I agree with Marko that that the reaction would be horror at a pre-emptive use of (even tactical) nukes, I think a non-nuclear strike may not cause the same level of shock.
If these norms are becoming increasingly indeterminate and states have increased leeway to decide whetehr or not pre-emption is warranted, where does that leave us? So, even if this Israeli strike does not occur (and I do NOT think it will, either) the question for me is, given recent history, based on what normative grounds can one clearly argue that as a legal matter it may not occur?
Prof. Borgen and all,
I’ve submitted a paper for the Opinio Juris Symposum that tries to put this issue in the larger context. However, to be brief, I think we can see that Iran crisis in the Council today is like looking in a cracked mirror of the Israel-Iraq crisis concering the Osirak Reactor 25 years ago. Both the resolution from two weeks ago (on Iran/ Non-proliferation) and Security Council Resolution 487 of 19 June 1981 puport to defend the same values and indeed the same non-proliferation framework, but intervening history helps make sense of the absolute reversal of the terms, and how the Security Counicl would pose the questions today.
Res. 487 was the Council’s resolution condemning Israel’s unilateral strikes in 1981 targeting the Osirak reactor in Iraq, which is still the only precedent for a successful preventive strike against a fledgling nuclear program. At that time, however, to support the NPT and IAEA framework, the Security Council condemned the destruction of the nuclear reactor and defended the aspiring proliferant’s “sovereign right” to pursue peaceful nuclear program in conformity with the NPT. It appears in retrospect that the Security Council and IAEA’s threat assessment and reading of Iraq’s intentions was factually incorrect, though their doctrinal support against unilateral strikes may still hold.
Today, as priorities have shifted, the question of a surgical strike to prevent proliferation will likely reapear with the the question posed in the Resolution reversed: under the collective security system, may the Security Council authorize a military strike (or any lesser forcible measure) against a proliferation threat? This possibility is preserved as a legal option, even by the Resolution on Osirak. Yet almost nobody expects this to happen. More likely is a military strike by Israel or the United States, and the invocation of a resolution that seems in part to support these actions. A resolution condemning such a strike would also be introduced and promptly vetoed.
Yet the recourse to unilateral “surgical strikes” is all the more complicated both in fact and at law after recent uses of force. Leaving aside the risks that Israel would risk destabilizing the region if it acted similarly today in Iran, it is probably not possible to reproduce the earlier military success. Instructed by the lesson of the Osirak strike that Iranians have dispersed their nuclear sites throughout the country, and probably underground.
Yet, at least this week, Israel is in a stronger posistion to make *threats* of this kind than the U.S. The potential impact of a U.S. unilateral strike following disappointing results at the Security Council would carry the shadow of the Iraq War debates. In the medium term, agains tthe backdrop of Iraq, perhaps the popularity of U.S. airstrikes will return. Or perhaps the airtight fact-finding concerning WMDs will become a matter of national priority.
In any case, both the Osirak and the Iraq War put the Security Council in an ambiguous position in terms of its own practice and how this would be interpreted in enforcing non-proliferation norms.
If the Charter is regarded as a potentially dynamic instrument, it cannot only be so for the Security Council alone, but we must also recognize consistent state practice. If we look at the text and purposes of the charter without discarding 60 years of institutional and state practice, the same openness in the text of the Charter that gives The Security Council such a wide margin of discretion, also gives some dynamic possibility to state practice. Thus the Charter itself may not have contemplated anticipatory self-defense or humanitarian intervention (“the responsibility to protect”); the same way it might not have conceived of the Security Council’s powers as “legislative” or added non-proliferation to the Security Council’s portfolio. For Franck, while the ‘literal’ text of the UN Charter does not allow for anticipatory self-defense, the spirit rather than the letter of the Charter can be followed faithfully in the practice of the UN’s principal organs and by members through state practice. Franck argues that the Charter has been adapted to allow for a much broader reading of the right of self-defense to encompass anticipatory self-defense or the rescue of a state’s nationals abroad, and for an approach to humanitarian intervention that would treat it as excusable if illegal.
Though the mainstream legal position on preemptive self-defense has remained the same over the years, state practice is ambiguous: (1) the U.S. used Resolutions as well as a questionable theory of customary law of anticipatory self-defense to justify its military action in Iraq, and (2) Australian, Spanish, and British justification for military action was premised entirely on the enforcement of Security Council Resolutions 678, 687, and 1441. Thus any future Resolution could be bent to the service of a unilateral strike, leading back to a near replay of Osirak, with the Security Council in an uncertain position. The best way for the Security Council to take control of these uncertain doctrines and their role in non-proliferation is to draw a line in the sand on which kinds of threats may properly lead to military action under the UN system, and what fact-finding will support such an action.
Vik Kanwar
JSD Candidate NYU
Loyola New Orleans 2006-07
Chris and Vik,
Yes, of course, the legal problem here would be the permissibility of anticipatory self defense in international law, but I don’t agree that the 2003 Iraq episode is legally as relevant as you both suggest. I must confess that I have become a big fan of formalism when it comes to the law on the use of force, a la the ICJ’s 1986 Nicaragua judgment.
It is true that the US has invoked pre-emption as a (political) rationale for invading Iraq, but that is NOT the legal case that it has made before the Security Council. What it did argue, in the end, like the UK, is that Iraq was in material breach of the previous SC resolutions, and that this gave the US the right to invade Iraq to enforce these resolutions. Its legal case, therefore, was implied SC authorization, and this is the only legal argument which should matter (for a detailed discussion, see Dino Kritsiotis’ EJIL article ‘Arguments of Mass Confusion‘).
When it comes to Afghanistan, the question was again not preemptive self-defense in the classical sense, as an armed attack has already occurred. The problem there is whether the UN Charter allows for the exercise of self-defense by one state against an armed attack by a non-state actor operating from the territory of another state – as recently Israel engaged Hezbollah in Lebanon.
So, the ‘ruling precedent’, as it were, when it comes to preemptive self-defense is still the Osirak episode, where even the US condemnded Israel. I don’t care that Bush made speeches in which he stated the danger of Saddam giving WMDs to terrorists or using them against the US in some other way, when the legal case made by the US in international fora for the Iraq invasion was SC authorization. This formalism cuts both ways though – say that the real motive of the US was preemption, but that it did in fact have clear SC authorization. The fact that it would have a myriad of other policy reasons, even suspect ones, for invading Iraq, would not change the fact that it was legally entitled to do so.
Many thanks to Marko, Chris and Vik for the helpful and illuminating treatment of the salient legal issues. I also appreciate the references.
While I don’t have anything to really add regarding the legal issues here, the strategic thrust of this “revelation” is of interest. Obviously, if the leakers really did scotch a plan already in motion and decided upon, their betrayal of Israel is rather grave.
I’m inclined to think, however, that this leak was quite intentional and no real plan to carry through with this existed. By floating this type of plan, Israel puts pressure upon the US and international community to act, as well as making any future strikes seem like restraint by comparison.
They’ve mentioned the nuclear-tipped missiles either to represent a future, non-nuclear attack as “restraint” or “compromise,” or to float a convenient scapegoat if a conventional attack fails. Essentially “See, we needed to use nukes to destroy those facilities.”
Marko:
Thank you for your comments. I have two thoughts concerning the points you raised:
The Debate over Pre-emption. I agree that the U.S. did not emphasize the doctrine of pre-emption before the Security Council. My point (and I believe Alvarez’s) is that the effect of the SC resolutions was to broaden the application of pre-emption as a legal justification. Even if the words “pre-emption” or “anticipatory” were never uttered in the Council debates (and I don’t know if that’s the case), everybody knew that that was a major issue (regarding not only Iraq but also Afghanistan). Pre-emption was a key part of the September 18, 2001 Authorization for the Use of Military Force by the U.S. Congress. Your interpretation of “the” issue in Afghanistan being about non-state actors I think narrows the actual debates that occurred at the time. That was an issue, not the issue.
Pre-emption was all over the mass media and political speeches. The SC presentations were about risk of future actions, either by terrorists (Afghanistan) or in support of terrorists (Iraq). It was largely about pre-emption as a legal matter even if it was not formally framed that way. And, particularly in regards to the war in Afghanistan, the result are resolutions that seemingly endorse a wider interpretation of what is acceptable as self-defense. Which brings me to my second point…
Formalism and international law. It is an old saw that, very generally speaking, Continentally-trained lawyers tend to be more formal and common lawyers less formal on legal questions. Formalism is only one approach to resolving such questions. Many U.S. decision-makers (and those from other countries that have to be flexible given their level of international exposure) tend to find formalism as perhaps intellectually coherent but practically unrealistic as a method of approaching international law and politics. And, given the domestic import, I think state practice tends to show that use of force issues is where formalism is the least prevalent interpretative style…
I am reminded of an anecdote of about a European international lawyer known for his formalist approach to legal questions. A friend of mine (also an international lawyer) was sitting in a Japanese restaurant and he saw this European lawyer come in and he heard this interchange:
True story. Anyway, this is the concern many people have about formalism. There comes a point when it lcan lose touch with reality.
Marko &Vik:
I just want to add that I think that my argument that formalism may be eclipsed by state practice in use of force issues is essentlially in agreement with Vik’s analysis and particularly his last paragraph. (I don’t know if Vik agrees with that, though…)
Chris
Chris,
Yes, you’re quite right – formalism can indeed lose touch with reality, as your sushi anegdote amply demonstrates (touche btw, and I suddenly have a craving for a California roll). And I also, to a point, accept your discussion on differences between European lawyers and common lawyers. I have certainly heard myself many instances of a European lawyer saying that article so and so resolves what is in reality a very complicated issue. There is also, I’m afraid, a parallel problem, and not with common lawyers generally, but with American lawyers more specifically, who are brought up on so much legal realism that they sometimes fail to grasp the difference between law and politics, especially in issues of constitutional or international law.
But enough with generalities and glorious Japanese food. I am not just making an argument out of formal logic, but from actual state and judicial practice. It is this practice which shows that we must indeed differentiate, as lawyers, between legal and policy arguments, and that the one legal argument that counts is the one which a state actually chooses to advance in the relevant forum. That I think goes without saying in any court, and I see no good reason to depart from that scheme when an event actually happens, and a legal justification for it is actually offered.
This is especially so when, even though the legality of the Iraq invasion was never adjudicated (save at the last ASIL meeting :)) there is an appropriate venue for a formal legal justification to be made – the Security Council – and the states concerned have availed themselves of the opportunity. You forget that there were other justifications floating around other than pre-emption, such as regime change necessitated by Saddam’s brutality and so on. Yet, it is the states concerned, notably the US and the UK, which have chosen not to make this legal argument before the Security Council, probably because they (rightly) considered that any humanitarian intervention argument would fail, not just because of the doctrine’s uncertain status in international law, but because the universally accepted conditions for such an intervention, such as ongoing mass crimes, were not present. The US and the UK have also evaluated the legal merits of pre-emption, and they have also chosen not to make that argument before the Council, but to rely on implied authorization, which I believe is indeed the best legal argument that they could have made. Adding in a jumble of other potential justification to the mix does not make this argument any stronger.
As for the Congressional AUMF, yes, it does indeed contain an element of pre-emption. But, this is simply not a legal justification offered offically at the international level, but a purely internal US matter. The same thing actually happened in Nicaragua, where the ICJ refused to give a lot of consideration to a Congressional resolution offered by Nicaragua as evidence of an ulterior motive of the US, but instead followed the justification offered by the US government, that of collective self-defense. See more the Kritsiotis article referred to above, at 246-252, esp 250-1. This is especially true when the Iraq episode is contrasted to earlier practice of the US, which has always offered a very detailed elaboration of any claim to self-defense in its communications to the Security Council.
Marko,
On Iraq (2003) you’re right that the U.S. “did argue, in the end, like the UK, is that Iraq was in material breach of the previous SC resolutions, and that this gave the US the right to invade Iraq to enforce these resolutions.” They also took the last of these resolutions as specific (enough) authorization.
This seems to be an emerging strategy toward hegemonic ends. Maybe we should call it “stockpiling” resolutions. Following Iraq, the North Korea and Iran strategies would be an escalating series of resolutions, before introducing one lightly touching on military action. The most dramatic development in the past few months has been the passage of Chapter VII resolutions against North Korea and “against” Iran (though the text returns again and again to general support for NPT/ IAEA goals and away from Iran in crucual passages). In the US, the media has done a poor job of explaining the significance of Chapter VII (though its interesting to see them try) and the public perception I think it benefits the U.S. position, is that these resolutions provide a kind of global AUMF.
That’s the kind of deformalization that gave momentum towards the Iraq War (both at the Security Council and with Congress). It is well within this administration’s bag of tricks to take any resolution (esp. Chapter VII) as a blank check.
On the political side, any thoughts on how Russia taking the chair (and Bolton’s exit) might change dynamics?
Vik