Israel Military Action to Prevent Iran From Developing a Nuclear Weapon Capacity - Essay Example

 Topic: What may justify Israel to use military action to prevent Iran from developing a nuclear weapon capacity? This paper seeks to respond by providing legal advice to the Israeli government as to the legality of a military strike to prevent Iran developing a nuclear weapons capacity to the following factual circumstances: In Security Council Resolution. 1747 (2007), adopted under Chapter VII of the Charter of the United Nations, the Security Council expressed itself “Concerned by the proliferation risks presented by the Iranian nuclear programme” (preamble). Israel is troubled by the possibility that Iran might develop a nuclear weapons capacity, and (i) use them in any military conflict between Israel and Iran; and/or (ii) provide a nuclear weapon to Hezbollah (an extreme Shiite Muslim group), which has a history of armed conflict with Israel in South Lebanon and Israel itself. This paper attempts to explore the idea of the possibility of using self defence as a ground within and outside Article 51 of the UN Charter. Article 51 of the United Nations Charter preserves the right of nations to use military force in self-defence. The article says: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.” The article clearly speaks of the inherent right of the individual member of the UN in case there is an armed attack that has occurred against it. Since Israel is a member of the UN then it may be inferred that it can use this part of the UN Charter to use military action in destroying any nuclear weapon that may be possessed by Iran that it may use against Israel. This therefore brings the question on what are the possibilities under the present theories where the taking of military action is possible. When is Preemptive Strikes May Be Permitted in Response to the idea of Self Defence? Maggs discussed three views on pre-emptive strikes, where the first view does not permit the use of pre-emptive strike while the other two views permit the same. One of the views which allows pre-emptive strike, and which is within the ambit of Article 51 is the use military force to act upon or respond to an actual armed attack or in case of an “imminent” armed attack. Of course the author was referring to the possibility of the US using the same but this could be used by Israel in case there are already enemy warships on the horizon, troops that have massed on the border, and planes are already in the air although the imminent attack has not yet begun.1 The idea of actual attack having existed as basis of the military action may be a question of fact on the part of Israel. Thus it may be asked: Has Iran committed any actual armed attack on Israel? So the next question here is what is the meaning of armed attack? An armed attack has the meaning of the use of arms that will harm another country’s people or property. It is however traditionally distinguished from a terrorist acts as the term attack is regarded as “subcategory of aggression of aggression”2 hence it may indicate the conception that the attack must come from a state. The distinction is believed to have become blurred as a result of the 9/11 attack on New York in 20013. Comparing the US situation with its relation with Iran and North Korea, which the US considers are rogue nations with the case of Israel where there is a concern as evidenced a Security Resolutions about the proliferation risks presented by the Iranian nuclear programme that is disquieting Israel about the great possibility that Iran might develop a nuclear weapon capacity and use the same in any military conflict between Iran and Israel may provide the same options which includes the use of preventive military strike against Iran that may be used by either US or Israel or both since Israel is an ally of the US. Maggs was puzzled how to reconcile the theory with the text of Article 51, where military action in self-defence is only permissible “after a nation has suffered an actual armed attack.”4 Thus he posited a possible argument using the very words of Article 51 about the so called inherent right of individual or collective self-defence.5 In admitting that an inherent right is an essential or intrinsic right, he had in effect argued that the signatory nations of U.N. Charter had no intentions in their minds to weaken or restrain that inherent right. What he meant was that Article 51 pertains only to the in case there is a principle of self-defence to an armed attack but that “the inherent right of self-defence is more comprehensive than said principle as to include the right to respond to an imminent attack under the theory expressed by Daniel Webster in the Caroline case of 18426. Mikael Nabati has characterized this type right of self-defence as an independent and autonomous right pre-existing the Charter rules and therefore could be made subservient to the requirements set forth in Article 51 and so that what is ‘inherent right’ as self defence must be one that is defined customarily in international law.7 However, Maggs admitted the inapplicability said interpretation of Article 51 with the experience of the U.N., although questionably there was also no indication that the various organs of the U.N. also have expressed rejection. Maggs cited the fact that the Security Council failed to put to express any legal reasoning about pre-emptive strikes8 when it damned Israel for destroying the Osirak nuclear facility. Maggs must be right in positing that the Security Council resolution merely did not accept any self-defence justification that Israel might have had on the particular facts. It may be argued that Israel is facing an imminent nuclear attack by Iran or the Hezbollah from South Lebanon. It may be argued that the hostilities between Israel and Hezbollah were just halted via SC resolution 1701 (2006).9 The only issue is whether Israel has “no more choice of means and no more moment for deliberation” as quoted by Daniel Webster. There have already been threats to the US and Israel form Iran on the basis of the following: As to the threats against the US, Ayatollah Ali Khamenei of Iran was noted to have said "The world of Islam has been mobilized against America for the past 25 years. The peoples call, "death to America." Who used to say ‘death to America?’ Who, besides the Islamic Republic and the Iranian people, used to say this? Today, everyone says this.” 10 As to threat to Israel, President Mahmoud Ahmadinejad has stated, "As the Imam said, Israel must be wiped off the map."11 Another view is the case of anticipatory self defence which Maggs cited to justify a preventative strike under certain circumstances even in the absence of suffering first any armed attack and facing any imminent danger. He cited the US White House’ National Security Strategy of 2002.12 to have adopted this theory in responding to an imminent threat “to the capabilities and objectives of today’s adversaries” where rogue states and terrorists do not seek to attack using conventional means.. The said NSS (2002) cited the reliance of the enemies of the US “on acts of terror and, potentially, the use of weapons of mass destruction”13 which are concealable and usable without warning. 14 Israel could use the same argument as that of the US since Iran may be considered to be using weapons of mass destruction that Iran can conceal, deliver covertly and use without warning. In fact as earlier stated, Iran may have already warned against Israel. The circumstances under the Iran President may have made those warnings may only be taken in the context that Iran may have the power to launch and attack using nuclear weapons. Maggs explained how NSS 2002 to have concluded about extent of potential harm that could be caused by adversaries’ choice of weapons, without waiting for an attack15. The US however appeared to have sustained the use of anticipatory self defence in its NSS 2006.16 The same theory is favoured by Professor Philip Bobbitt, who had written about the absolute necessity of pre-emption given the nature of terrorist attacks that are capable of being disguised.17 There is also basis to agree with Professor Maggs merely relying on defence after the attack would make the US helpless in preventing nuclear strikes against it in the absence of a clear enemy at which to strike back. Thus he concluded that the United States desire for self protection lies in preventing the very creation of “weapons of mass destruction” that terrorists may come to posses. By the same token, this is the only possible mean that Israel can do to protect itself from Iran. What could be the possible objections on NSS 2002? The first objection noted by Maggs is that the theory lacks clear legal footing under the text of Article 51 and historic practice.18 This is understandable as explained earlier but the US still had commitment to institutions like the United Nations 197 without citing the UN Charter. The second objection is absence of logical stopping point, where almost every country could use same and hence greater threat to international peace. The final objection is that the theory has an unpleasant past since the same justification by the Nazis in their aggression20 and the Japanese in justifying its assault of Pearl Harbour.21 Under what theory then may Israel base its military action against Iran? Given the limitations of the theories on preemptive strikes discussed so far Maggs cited another ground under the US may justify strike on Iran or North Korea. This is on the premise that the two countries, Iran and North Korea are “constantly engaged in conventional armed attacks and other aggression”22 against the US allies23. Maggs however forwarded the requirement for the fulfilment of certain conditions by the US that must be met. For Israel to use this argumentation, it needs proof of conventional armed attacks and other aggression committed by Hezbollah or Iran against itself as an ally of the United States. The Panama Invasion and the 2003 Iraq invasion may be used as precedents by Israel. In case of Panama invasion, Maggs cited the 1989 case of Manuel Noriega who created an international crisis in Panama.24 Noriega was found to have engaged in international drug trafficking,25 caused the nullification of an election depriving presidential candidate Guillermo Endara of the opposition to take control of Panama government.26 This was in addition to imprisoning Kurt Muse, an American citizen, who had the chance to connect a secret radio network in Panama in the interest of the Central Intelligence Agency of the US. and to the many hostile statements uttered by Noriega against the United States that had caused the Americans to question Panama Canal security and the safety of thousands of American citizens in Panama.27 The US responded by deciding the application of military force have Noriega in its custody, have Muse released, and have Panama democracy restored.28 Obviously, Article 51 of UN Charter was not applicable because it is irrelevant to a country selling drug or becoming undemocratic. But the US waited for the occurrence of an actual attack which came to pass when Noriega’ security personnel has stupidly killed a member of the US service has abused other members.29 It was on this ground that then President Bush invoked the justification in deploying of the US force in the exercise of the right of self defence under UN Charter, particularly Article of 51 and so US was able to invade Panama. By the same analogy, Israel may be argued to wait for violation or killing of one of its citizens or member of its armed forces. Or it may be pointed out such condition may have already happened. It may be recalled that it has an existing ceasefire with Hezbollah and any violation of that same could be used as valid ground to attack the nuclear weapon facility of Iran. 30 It may be observed that the veto power of UK, US and France of a Security Resolution on any of latter’s resolution in condemnation would have a great weight in determining the meaning of the UN Charter. It would therefore mean that any action of the Israel against Iran needs to have the support of these countries so that Israel may have the necessary legal basis in said action. Israel may easily have the support of the US with its being an ally of the latter. This is also in the light of the fact that the US had vetoed all Security Council Resolutions that have been addressed against Israel. 31 In terms of legal justification and the greater ends to be achieved the 2003 Iraq invasion is almost under similar in terms. It was out concern by the United States and its many allies around the world that Saddam Hussein was developing weapons of mass destruction that justified the invasion.32 The necessity of military force was paramount to prevent Saddam Hussein from the threat of the use of nuclear or biological devices33, thus Iraq invasion was inevitable and the result was the removal of Sadam from power and his eventual conviction and execution by the Iraqi court.34 Maggs explained that although the US and its coalition of the willing were clearly of the belief that there was a need to take a pre-emptive action as a way of averting the development of nuclear or biological weapons35, they justified the legality of the military mission not on said grounds but found an alternative that there was a 1991 Security Council authorization for the use of military force against Iraq when it the latter had invaded Kuwait.36 With Iraq being defeated and ousted from Kuwait an immediate fighting ended based on an agreement of ceasefire from both parties37 under terms approved by the Security Council38. But clearly there was really no complete peace. The years following the cease fire yielded violations of the ceasefire agreement as determined by Security Council. Such violations of ceasefire included the shooting of American planes and denial of access to weapon inspectors.39 With the US and the UK asserting material breach by Iraq caused them to do their obligations under the cease-fire agreement and the same permitted the allied forces to resume fighting on the basis of Security Council authorization of 1991.40 There must be a strong ground to agree with Maggs that with legal justification properly established; the psychological reason for attacking Iraq was actually to get rid of the threat of weapons of mass destruction and to take away Saddam Hussein from his position as president. Maggs emphasized one notable factor the Iraq invasion was the fact that the United States and the United Kingdom failed not to act insincerely. With their announcement to the world about their specific legal justification for using force, they justified on the ground of the use of military force “to accomplish a greater end.” In the same way Israel should act in the same manner as the US and the UK if it wants to attack Iran on the latter development of nuclear weapons development facilities. Thus the accomplishment-of-a-greater-end principle by destroying nuclear weapons could be used as a legal explanation. It does not mean however that there could be no objections on the use of force by Israel against Iran. The sufficiency of the predicate for using military force sufficient could be questioned by the opponents of the attack such the alleged incident of armed attack did not occur;41 that Iran or Hezbollah did not cause the harm, that the incident did not cause grave harm42. The best way to counter these would be matter of evidence for Israel should be prepared to face.43 Another objection that could be used by opponents of the attack is the possible effects of destroying nuclear weapons development facilities would on the requirements of necessity and proportionality. Again Israel could address the first objection about the seriousness of Iran of the consequences of Iran having attacked Israel using nuclear weapon. The other objection could be addressed by being precise of its targets in attacking the nuclear facilities when it comes to proportionality. The latter two objections could also be question of facts and for which Israel should be prepared to answer. To conclude, it may be stated that since the US may has justified its acts in the use military strikes in the case of Panama and 2003 Iraq invasion then Israel must have right to use the same principles from said precedent to prevent Iran from using the latter nuclear capacity to use them in any military conflict between Israel and Iran; and/or provide a nuclear weapon to Hezbollah (an extreme Shiite Muslim group), which has a history of armed conflict with Israel in South Lebanon and Israel itself. Such actions of Israel against need not rely on interpretation of Article 51 and still could be considered as valid acts of self defence in its traditionally international sense even if an armed attacked had not occurred as understood by some to be a requirement of the UN Charter. The fact however that Hezbollah with which Israel had an existing ceasefire agreement then any violation of that ceasefire agreement which may be committed by Hezbollah or Iran in case if would helped Hezbollah may be considered as constant engaging in actual armed attacks or forms of other aggression that would justify the use of military force by Israel against Iran. More pursuing greater end principle as used by US in Panama and Iraq, Israel may be justified indeed is the use of precise military action in destroying Iran’s nuclear weapons development facilities This paper should also be taken as providing legal justification for the use of military force against Iran and does not necessary suggest an immediate attack on Iran in the same way that Maggs44 has made his disclaimers in his paper. This paper then agrees with Maggs there could still be other options including sanctions and diplomacy so that international peace may be better attained. However for Israel to do it must seek the help of the members of the Security Council especially the permanent members45 like the US, France and UK which could help the Israel in their exercise of veto power should and SC resolution should be taken against it. Works Cited: 17 The Trial of German Major War Criminals Sitting at Nuremberg, Germany 294 (1946). A Kelle, Securitization of International Public Health: Implications for Global Health Governance and the Biological Weapons Prohibition Regime; Global Governance, Vol. 13, 2007 Alan Cowel, Blair Pushes Iran for Release of Captive Service Members, N.Y. Times, M ar. 28, 2007, at A10. BBYO’s Campaign for Nuclear-Free Iran, U.N. Security Council Must Take Decisive Action Against Iran, Accessed on January 8,2008 Bob Woodward, The Commanders 92 , 158 (1991) at 84. Council, U.N. Doc S/1998/780 (Aug 20, 1998) E Luck, UN Security Council: Practice and Promise, Routledge, 2006 G Gaja, The Attack on the World Trade Centre: Legal Responses, Table of Contents: In What Sense was There an "Armed Attack"?, http://www.ejil.org/forum_WTC/ny-gaja.html G Maggs, “How the United States Might Justify a Preemptive Strike on a Rogue Nation’s Nuclear Weapon Development.” The George Washington University Law School Public Law And Legal Theory Working Paper No. 373, Legal Studies Research Paper No. 373, 57 Syracuse L. Rev. 465, (2007) G Maggs. , The Campaign To Restrict The Right To Respond To Terrorist Attacks In Self-defence Under Article 51 Of The U.N. Charter And What The United States Can Do About It, The George Washington University Law School Public Law And Legal Theory Working Paper No. 376, Legal Studies Research Paper No. 376 , 4 Regent J. Int'l L. 149, 2006 J. Mearsheimer and S. Walt. The Israel Lobby and U.S. Foreign Policy. KSG Faculty Research Working Paper Series. Harvard University.. Retrieved on 2007-09-08 Japanese Note to the United States (Dec. 7, 1941), Dept. of State Bulletin, Vol. V, No. 129, Dec. 13, 1941, Accessed on January 8, 2008 K. Paris, The Expansion of the Biological Weapons Convention: The History and Problems of a Verification Regime; Houston Journal of International Law, Vol. 24, 2002 Letter from Bill Richardson, Permanent Representative of the United Lord Goldsmith, Attorney General, Legal Basis for Use of Force Against Iraq (Mar. 17, 2003) (stating the formal argument used jointly by the United States and the United Kingdom), available at http://www.number-10.gov.uk/output/page3287.asp. M Nabati, International Law at a Crossroads: Self-defence, Global Terrorism, and Pre-emption (A Call to Rethink the Self-Defence Normative Framework), 13 Transnat’l L. & Contemp. Probs. 77 1, 790-91 (2003). M. Glennon, The UN Security Council in a Unipolar World, 44 Va. J. Int’l L. 91, 95-96 (2003) Nicaragua, 1986 I.C.J. at 119 Noriega, 117 F.3d at 1210. Philip Bobbitt, Waging War Against Terror: An Essay for Sandy Levinson, 40 Ga. L. Rev. 753, 772-73 (2006) S.C. Res. 1441, U .N. Doc. S/RES/1441 (Nov. 8, 2002) S.C. Res. 487, U.N. Doc. S/RES/487 (June 19, 1981) S.C. Res. 678, P 2, U.N. Doc. S/RES/678 (Nov. 29, 1990) S.C. Res. 687, P 1, U.N. Doc. S/RES/687 (Apr. 3, 1991) Security Council, Security Council Calls For End To Hostilities Between Hezbollah, Israel, Unanimously Adopting Resolution 1701 (2006) Accessed on January 8, 2008 States of America to the United Nations, to Danilo Turk, President, U.N. Security UN Charter, Article 51, , Accessed on January 8, 2008-01-09 USA Today, Iran reportedly doubles centrifuges; learn the impact < http://blogs.usatoday.com/ondeadline/2006/10/iran_reportedly_1.html> Accessed on January 8, 2008 W. Murray & R. Scales, Jr., The Iraq War: A Military History 15-44 (2003) White House, The National Security Strategy of the United States of America (2002) White House, The National Security Strategy of the United States of America (2006), < http://www.whitehouse.gov/nsc/nss/2006.html>, Accessed on January 8, 2008 Read More