There is no easy answer to the question of ongoing Iranian nuclearization. All options are unappealing, and all will have very substantial costs. For the moment, diplomacy still seems to be the preferred path to crisis remediation, but only because polite conversation and empty threats protect all parties from taking easily identifiable risks.
International law is not a suicide pact. In the matter of Iran’s search for nuclear weapons, further diplomatic discourse is silly at best. No UN sanctions will have any effect on the pace and substance of Iranian nuclearization. In fact, unless there is a very near-term defensive first-strike at certain elements of Iran’s growing nuclear infrastructures, that Islamic state will quickly become a full member of the nuclear club.
Leaving aside Iran’s obvious and ongoing violations of the Non-Proliferation Treaty, such membership would pose a genuinely apocalyptic hazard to us all. A nuclear Iran would not closely resemble any other members of the nuclear club, and there could be no stable “balance of terror” between such a country and any other nuclear states. Unlike the cold war between the United States and the Soviet Union, which was always governed by common assumptions of rationality, a world with a nuclear-armed Iran could deteriorate at any moment into real chaos. Although it is possible to imagine postponement of preemption against Iran until that country is more openly nuclear, the collateral consequences of any such delayed act of self-defense would be far worse.
To be sure, in the best of all possible worlds, diplomacy could actually be taken seriously, and discussions of military solutions would be out of place. But we still don’t live in such a world, and we now have little choice but to compare the costs of prompt preemptive action against Iran with the costs of both inaction and delayed military action. In any such comparison, it is apparent that all available options are going to be costly and that putting our heads in the sand will only make us blind.
Iran’s president, Mahmoud Ahmadinejad, says repeatedly that his country’s nuclear program is intended solely to generate electricity, but there is absolutely no reasonable argument or evidence to support this statement. Ahmadinejad blames Israel for war and terror in the Middle East, but it is only Iran that calls for “wiping off the map” another country in the region (Israel) – a call that is a clear violation of the Genocide Convention of 1948. Also significant is that Israel has never threatened any other state with nuclear weapons, and indeed does not even acknowledge that such weapons exist.
Iran must be stopped immediately from acquiring atomic arms, and this can only be accomplished through what international law calls “anticipatory self-defense.” From the standpoint of international law, an appropriately precise set of defensive attacks against Iran’s nuclear assets could be distinctly legal. And contrary to prevailing conventional wisdom, the authorization for preemptive action against Iran would not have to come from a collective decision by the UN Security Council. At this point, the United States and/or Israel could choose to act on behalf of the entire international community, and could do so without securing wider approvals.
The clear right of self-defense by forestalling an attack appears in Hugo Grotius’s classic, The Law Of War And Peace (1625). Recognizing the need for protection against “present danger” and threatening behavior that is imminent, Grotius indicates that self-defense is permitted not only after an attack has already been suffered, but also in advance, “where the deed may be anticipated.” Continues Grotius: “It be lawful to kill him who is preparing to kill.”
Emmerich de Vattel takes a similar position in his The Law Of Nations (1758). Here, he argues that it is lawful to resist and even to anticipate attacks by other nations so long as aggression is truly forthcoming. “The safest plan,” says Vattel, “is to prevent evil, where that is possible. A nation has the right to resist the injury another seeks to inflict upon it, and to use force and every other just means of resistance against the aggressor.”
Some current scholars will argue that the specific language of Article 51 of the UN Charter overrides the customary right of anticipatory self-defense. In this view, which effectively undermines the authoritative non-treaty sources of international law identified at Article 38 of the Statute of the International Court of Justice, Article 51 fashions a new and far more restrictive statement of self-defense. This narrow interpretation ignores that international law must always refuse to compel a state to wait until it absorbs a devastating or even lethal first-strike before acting to protect itself. Regarding Israel’s preemptive attack on the Osirak nuclear reactor in Iraq on June 7, 1981, neither the UN Security Council nor the General Assembly censured the attack. This signified an implicit approval by the United Nations of this particular resort to anticipatory self-defense.
There is very little time left to deal with Iran. In fact, the operational success of any essential preemption against Iranian military targets is already very much in doubt. To make matters worse, even the most successful preemption against Iran would already entail large numbers of civilian casualties due to the deliberate Iranian policy of placing military assets in the midst of civilian populations. Still, further postponements will only multiply the number of casualties from any future preemption or, in the worst-case scenario, even permit Iran to become fully nuclear. In that genuinely grotesque eventuality, a vast region could then face the prospect of literally millions of prompt fatalities. Here, the survivors would envy the dead.
Copyright The Jewish Press, Oct. 20, 2006. All rights reserved.
LOUIS RENE BERES was educated at Princeton (Ph.D., 1971). He is Chair of “Project Daniel.”