Can you bomb a nuclear facility and not violate the laws of war?

Today’s Guardian features a good examination of the broad legal arguments surrounding a possible Israeli strike on Iran’s nuclear facilities. Like a post I wrote several weeks ago on the subject, it pits the views of legal scholars like Anthony D’amato against the more conventional interpretations of what uses of force are permissible.

But that article and my own posts have focused entirely on international law addressing the resort to force (questions governed by the UN Charter and by customary law regarding self-defense and aggression). Almost all writing that I’ve seen on the subject has omitted a different but potentially important legal question: whether striking a nuclear facility can be legal under the rules that govern how conflicts are fought. Reza Nasri, a PhD candidate at the Graduate Institute of International and Development Studies, sent me some interesting thoughts on the matter:

Under [international humanitarian law], not only are these [nuclear] facilities considered civil objects by nature and purpose, but they also fall under a particular category of specifically protected objects.  This is what Article 56 of Additional Protocol I expressly provides in this regard: “Works and installations containing dangerous forces, namely dams, dykes and nuclear electrical generating stations, shall not be made the object of attack, even where these objects are military objectives, if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population”.

This means that under the laws of warfare, the humanitarian cost of attacking such hazardous installations is deemed to be so high that no military considerations will likely justify their targeting. In fact, some authors even argue that attacking nuclear installations should be subject to an absolute prohibition just as the use of chemical and a biological weapons is, no matter what “military advantage” their destruction could confer to the assailant.

The provision that Nasri cites is not included in the Rome Statute of the International Criminal Court, but the Rome Statute does include a provision that makes illegal:

Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.

Of course neither Israel nor Iran are members of the ICC, and so the question is academic for the moment. But it doesn’t seem beyond the realm of possibility that Iran might, in advance of a strike, take a page out of the Palestinian playbook and submit a declaration giving the ICC jurisdiction over its territory. Doing so would, at the very least, create some headaches for Israeli legal advisors.

More: Martin Holterman, a researcher at the European University Institute, offers this reaction:

Given the politics of the matter, Israeli lawyers wouldn’t need a "guaranteed-win" argument. Instead, all they need is an argument that is plausible enough to convince people who are already on their side and everyone who is more or less neutral. In order to do that, all they have to do is prove (in the court of public opinion) that the attack is not “clearly excessive”….What we’re comparing is the loss of life, injury to civilians and damage to civilian objects on the one hand, and that only insofar as it was foreseeable, and the advantage of not being nuked by Iran on the other hand. Now obviously the latter is to be discounted by the fact that an Iranian nuclear attack is by no means a certainty, but still. (I’m ignoring the “natural environment” thing because, well, come on…) Let’s put a number on it: Unless the Israeli attack gets hundreds or thousands of civilians killed, they’ll be OK in the court of public opinion, and therefore also in the actual Court in The Hague.