Debating the Legality of an Assault on Iran’s Nuclear Facilities

I expect the legal issues arising out of a possible attack on Iran’s nuclear facilities are going to get hotter in the coming weeks. Peter Berkowitz of the Hoover Institution offers this argument in favor of the legality of Israel’s attack drawing from the doctrine of “preemptive” self defense (h/t Jack Goldsmith at Lawfare).

The charter of the United Nations affirms member states’ obligation to refrain “from the threat or use of force against the territorial integrity or political independence of any state” and, while envisaging a vigorous role for the Security Council in managing the use of force, also affirms states’ “inherent” right of self-defense.

States need not absorb a blow before they resort to military action. When threats are imminent, customary international law recognizes a right of anticipatory self-defense, though of course its scope is disputed.

Authority can be found for both a narrower and broader reading of imminence. In the “Caroline affair” of 1842, U.S. Secretary of State Daniel Webster, advancing the most stringent interpretation of imminence to make the case against the destruction by the British in 1837 of an American steamer, argued that states which have claimed a right to strike first must be able to “show a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation.”

But as Yale historian John Lewis Gaddis shows in “Surprise, Security and the American Experience,” the United States has been claiming the right to use force against emerging threats since 1818, when John Quincy Adams, President James Monroe’s secretary of state, formulated the doctrine to justify Gen. Andrew Jackson’s raids into Spanish Florida. Long after Webster settled the Caroline affair amicably, Presidents Theodore Roosevelt, William Howard Taft, and Woodrow Wilson all argued that the United States had a right to use force against failed or rogue states whose conduct endangered international order, and all ordered American troops into action on that ground.

Bruce Ackerman of Yale has quite a different take of US views on preemptive self-defense over at the LA Times.

In 1981, the United States joined in the U.N. Security Council’s unanimous condemnation of Israel’s preemptive assault on an Iraqi nuclear reactor. British Prime Minister Margaret Thatcher put it bluntly: “Armed attack in such circumstances cannot be justified. It represents a grave breach of international law.”

In standing with the Security Council to condemn the Israeli raid, the Reagan administration was embracing a tradition of U.S. statesmanship that began with Secretary of State Daniel Webster. In 1837, the British were trying to suppress a revolt in eastern Canada. Because U.S. militias were assisting the uprising, the British launched a night raid into New York state, burning a U.S. ship, the SS Caroline, and sending it over Niagara Falls.

After lengthy negotiations, Webster gained British consent to a treaty that prohibited such preemptive strikes. The two sides agreed in 1842 that a cross-border strike was legitimate only if there was a “necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation.” This Anglo-American formula remains a part of international law today.

The United States was also the central player at the decisive moment for self-defense in the 20th century: the judgment at Nuremberg. We remember these trials for their condemnation of genocide. But this was not their central focus. The main charge was that the Nazis had waged aggressive war — and this required the Allies to endorse the limited doctrine of self-defense enshrined in traditional law.

Even when the United States felt itself to be directly threatened during the 1962 Cuban missile crisis, President Kennedy did not invoke the right of preemptive self-defense. Although the risk of mass destruction was high, the president’s legal arguments were carefully constrained: When intercepting Soviet missiles on the high seas, Kennedy relied on the regional peacekeeping provisions of the U.N. Charter.

I’ll admit up front that I don’t find Ackerman’s precedents terribly powerful.  The Caroline principle sounds good, but there is little evidence that either the US or Britain adhered to it very consistently.  Nor does Nuremberg seem to me a very specific precedent against the factual issue here (Ackerman also fails to note that the recent ICC Review Conference at Kampala has hardly added much meat to his definition of preemptive self-defense or aggression). And Kennedy instituted what is essentially an act of war, a “blockade” of Cuba, even though he called it a “quarantine” to avoid invoking a war.

I don’t think Berkowitz’s argument is foolproof, either. But he does offer a more persuasive take to me.  In his view, Israel is uniquely threatened by a nuclear-armed Iran, whose leaders have made specific threats to use them against Israel.  Given the nature of such weapons, and the vulnerability of Israel to nuclear weapons, it is not hard to see a preemptive strike actually meeting the Caroline “instant, overwhelming, leaving no choice of means, and no moment for deliberation” standard.

All of this depends on the facts, of course.  Would a preemptive strike by Iran on Israel’s facilities also be legal, for instance? I think not, because Israel has not made credible threats (or any threats) to use those weapons, which it does not even acknowledge having.  But this is the kind of factual issue that needs parsing, and which is murky enough that we may get no satisfactory resolution of the legal question.