Israel, Iran, and the fog of international law

In surveying the legality of a potential Israeli strike against Iran, I argued recently that Israel’s best case might be that Iran has, in effect, already initiated hostilities by providing military and financial support to armed groups attacking Israel. More broadly, I suggested that Israel could argue that the UN Charter’s prohibition on the use of force is much narrower than is usually argued, and that state practice over the years has reinforced that narrow reading of the Charter. So long as Israel showed no desire to overthrow the Iranian regime or seize its territory, a strike on its nuclear facilities might not vioalate the Charter.

In that post, I put little emphasis on anticipatory self defense, which strikes me as a weak legal basis.  In his own assessment, Peter Berkowitz insists that anticipatory self-defense is, in fact, Israel’s strongest claim:

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.

In immediate response to al-Qaeda’s Sept. 11 surprise attack, but also in view of the steadily increasing threat posed by the proliferation of weapons of mass destruction, the Bush administration’s 2002 “National Security Strategy of the United States” argued for a broader reading. It maintained that the use of preventive force would sometimes be necessary because of “the inability to deter a potential attacker, the immediacy of today’s threats, and the magnitude of potential harm that could be caused by our adversaries’ choice of weapons.” The failure of coalition forces to find weapons of mass destruction in Iraq after the American-led 2003 invasion does not affect the logic of the argument, even as it underscores the dependence of strategic judgments on sound intelligence.

Israel’s claim that the Iranian nuclear program meets the threshold of imminence is certainly much stronger than the U.S. claim regarding Iraq. But I do not believe that current international law supports the notion that a hostile state acquiring a weapon of mass destruction itself constitutes an imminent threat. Whatever the merits of his legal analysis, Berkowitz then moves on to make an even more ambitious assertion: that the weight of Israel’s legal case could translate into political benefits.  "Having the law on their side as they grapple with the momentous decision is for both countries ….a strategic and political asset."

This is a strange claim. Even if Berkowitz is right in some abstract sense that an Israeli strike would have legal support, how does that translate into anything real? Most of the world would still view a  strike as dangerous, reckless, and unprovoked; even governments that would privately welcome it will publicly condemn it. Even more to the point, there would very likely never be an adjudication of its legality. At the UN, the United States would probably block a condemnation of the strike in the Security Council; the General Assembly might vent its spleen but any condemnatory resolutions it passed would have no direct legal force. Iran might, I suppose, complain to the International Court of Justice, but cases at the ICJ often take years to be resolved (witness Bosnia’s claim that Serbia was responsible for genocide during the 1992-1995 war, finally decided in 2007).

Rather than being crisply decided, the legality of an Israeli strike on Iran would become another in the long list of  cases that are argued about but never really resolved. Particularly when it comes to the use of force, there is much more murk than clarity in international law. The odd thing is that so many observers persist in speaking about law in this realm as if it had the definitiveness of domestic law.