Amid the saber-rattling and bluster over Iran, a furious if little-noticed debate is boiling over the legal basis for a US or Israeli attack on Tehran’s nuclear program.
The threat of a military strike hangs over this weekend’s talks in Istanbul between the major powers and Iran.
The Israeli leadership says an attack will come within months, not years, if the present diplomatic push fails. The US Congress is not far behind, with the Republican leadership pledging to pass an authorization for the use of “overwhelming military force” if there are signs Iran is developing a nuclear weapon.
US President Barack Obama is more cautious, but says the “military option” remains on the table if sanctions fail to persuade Tehran to give up its enriched uranium.
But while intelligence agencies grapple to assess whether Tehran is attempting to develop a nuclear weapon and militaries consider the logistics of bombing Iran, legal authorities are confronting the challenge of constructing a legal case for attack, if it comes.
And already there is considerable dispute over the issue.
Alan Dershowitz, the renowned jurist and supporter of Israel, has argued that the US and the Jewish state can invoke a long-standing right under customary international law of “pro-active self-defense” as well as article 51 of the UN charter.
Skeptics counter that international law only permits military action in response to an imminent attack, or if one is under way. They say there is no immediate threat because, as the White House has said, there is no evidence Tehran is building a nuclear weapon.
Then there are those who argue that the legal grounds for a military assault have already been met because the US and Israel are already under attack from “terrorist organizations” sponsored by Iran.
There is considerable support among politicians who favor an attack on Iran for the view of Anthony D’Amato, a professor in international law at Northwestern University, who has argued cases before the European Court of Human Rights. He says using force to prevent Iran obtaining a nuclear weapon would uphold international law, not undermine it.
“Iran says it wants to push the Israelis into the sea and that they are constructing nuclear weapons. That’s enough for me to say that cannot be allowed. If the US or Israel takes the initiative to block that action, it can hardly be said to be violating international law. It can only be preserving international law for future generations,” he said. “In order to preserve international law we have to defend it once in while. I think we have to defend it against rogue states or states that have expressed a hostile intentions, like Iran and like North Korea. The only reasonable thing to do is to take those weapons out. Remove that threat and the world is going to be safer.”
But D’Amato’s view is scorned by other specialists in international law.
Much of the legal argument centers on the interpretation of one word: imminent.
Although the UN charter recognizes the right of self-defense, it is imprecise. Lawyers look beyond the charter to an older standard in customary international law, established in the 19th century, allowing one state to use force to preempt an imminent attack by another.
That came out of a cross-border raid by British forces into New York state in 1837 to destroy an American ship, the SS Caroline, which was delivering aid to a rebellion in Canada. The British raiding party set fire to the Caroline and cast her adrift toward Niagara Falls. One American was killed.