One of the most depressing aspects of all the talk about Israel or the United States destroying Iran’s nuclear facilities (and much else besides, no doubt) is the near absence of any reference to international law. Even so distinguished an expert as Anthony Cordesman seems to take it for granted [...]]]> via Lobe Log

One of the most depressing aspects of all the talk about Israel or the United States destroying Iran’s nuclear facilities (and much else besides, no doubt) is the near absence of any reference to international law. Even so distinguished an expert as Anthony Cordesman seems to take it for granted that there will be no legal impediment to the US attacking Iran if a credible threat of an attack fails to intimidate Iran into making the concessions required to pacify Israel.

In my country, Britain, on 20 February 2012, members of the House of Commons spent five hours debating whether the use of force against Iran would be “productive” without dwelling more than cursorily on the legal aspects of the question.

How is one to account for this blind spot? Are ignorance and oversight to blame, or has respect for international law gone out of fashion?

It’s hard to believe that anyone who has policy-making responsibilities that involve other States, or who takes a professional interest in such policy-making, can be unaware of what the bed-rock of the post-1945 international system has to say about war-making. The United Nations Charter was drafted to be understood by a much wider readership than international law-focused lawyers. Paragraphs 3 and 4 of Article 2 of the Charter could hardly be clearer:

3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered.

4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any other state, or in any other manner inconsistent with the Purposes of the United Nations.”

Read in conjunction with Article 1, which spells out the Purposes of the UN, and Articles 39 to 50, which detail how the Security Council should react to “Threats to the Peace, Breaches of the Peace and Acts of Aggression”, these paragraphs suggest that the use of force by one state against another state is only lawful if the Security Council authorises it.

An exception to this rule can be found in Article 51 of the Charter: the right of self-defence if an armed attack occurs against a Member. But this is irrelevant to the Iranian nuclear dispute at the present juncture, for reasons set out most recently by Dan Joyner.

These points are so easily understood, and so clearly central to any proposal to attack Iran for its nuclear activities, that ignorance and oversight can hardly explain their widespread absence from the public debate, or the conspicuous failure of Western politicians to inject a reminder of the legal dimension into that debate.

My sense is that one must look elsewhere for an explanation: foreign policy communities in the US, Israel and the United Kingdom have lost sight of the importance of upholding international law to preserve the post-1945 international system, which underpins Western security and prosperity. They have reverted to the belief in Realpolitik of an earlier age: State military power is a legitimate instrument for resolving disputes.

I am reminded of one of the most striking episodes in Thucydides’ History of the Peloponnesian War: the Athenian extinction of Melos – the men massacred, the women and children sold into slavery – because the people of Melos refused to submit to Athenian demands. (At one point the Athenian delegates say: “You know as well as we do that justice is only at issue between equals in power; the strong do what they can and the weak suffer what they must”.)

Thucydides saw this cruel, disproportionate act as the moment at which fifth century BC Athens succumbed to hubris. Drawing on an idea familiar to the Classical tragedians, Thucydides implies that it was this act that triggered the misfortunes that reduced Athens to a has-been within twelve years.

Well, I must not press the analogy, which is only potential at this stage. The point I really want to make is that the West has much to gain by harnessing its military power to respect for the UN Charter and other universal legal instruments – and quite a lot to lose by showing disregard for international law.

I have heard it said (but cannot verify) that at some point President Bill Clinton observed that the US had twenty years to create a global order in which Americans could feel secure when the US no longer had a quasi-monopoly of military strength.  If this is true, it suggests that President Clinton understood how much even the greatest of powers has to gain from fostering the rule of law at the international level, and from resisting the impulse to use force for selfish, non-collective ends. No power has stayed on top forever.

Nearly 300 years ago, Montesquieu, a thinker much admired by the founders of the Union, wrote: “Political strength resides in renouncing self-interest, hard though that is”. Good leaders have long known that selfishness corrodes the loyalty and obedience of the led, as do injustice and putting the interests of a few ahead of the interest of the whole.

I am conscious how quaint these words will seem to some readers. So much of the contemporary foreign policy debate seems to take place in a moral vacuum, with little or no reference to justice and the rule of law in international affairs. I am almost embarrassed to be using such words.

Yet it seems to me rational to suggest that the post-1945 international system is the best yet devised, that it has brought great benefits to the West, that its preservation requires commitment from the leading power of the age, and that the leading power has to marry justice to strength to retain the loyalty of other participants. If I’m right, treating Iran unlawfully is a bad option.

The 6 August issue of the Wall Street Journal contained a disturbing article on Iran by Israel’s ambassador to the United States, Michael Oren. It was disturbing not because Oren presented reasoned evidence that Iran’s leaders have decided to use their uranium enrichment capacity to produce nuclear weapons (he [...]]]> via Lobe Log

The 6 August issue of the Wall Street Journal contained a disturbing article on Iran by Israel’s ambassador to the United States, Michael Oren. It was disturbing not because Oren presented reasoned evidence that Iran’s leaders have decided to use their uranium enrichment capacity to produce nuclear weapons (he did no such thing) – but because the article amounted to an unreasoned appeal to the post-9/11 sensitivities of American readers to justify a pre-emptive attack on Iran that would contravene Israel’s international obligations.

Let me try to explain.

The theme of the article is: Iran is the world’s leading terror sponsor without nuclear weapons.With them, it can commit incalculable atrocities.

Is Iran the world’s leading sponsor of terror? Without access to reams of intelligence this is hard to judge. Iran is undoubtedly a sponsor of terror, but bestowing on it the number one spot probably requires making assumptions about Hezbollah and about what constitutes “sponsorship” that are contentious.

Oren alleges that Iran has “supplied 70,000 rockets to terrorist organisations deployed on Israel’s border”. But Israel is one of only six United Nations members (out of 192), the US being another, that classify Hezbollah as a terrorist organisation. Hezbollah’s paramilitary wing is seen as a resistance movement in most Muslim countries. Hezbollah was born in response to the 1982 Israeli invasion of Lebanon, which prompted the UN Security Council to express grave concern at the violation of the territorial integrity, independence, and sovereignty of Lebanon.

Oren affirms that “Iranian-backed Hezbollah terrorists” killed five Israeli tourists in Bulgaria in July, echoing a claim made by Israel’s Prime Minister within half an hour of this outrage occurring. But to date neither the Bulgarian authorities nor, reportedly, the CIA, share Israeli certainty that Iran can reasonably be accused of this barbarous act.

The most dangerous terrorist network of the last decade is generally held to have been Al Qaeda. Iranian support for an Al Qaeda operation in Saudi Arabia has been alleged but not proved. No authoritative source has ever linked Iran to the 9/11 tragedy. Al Qaeda’s leaders are Sunni extremists, Iran’s are Shiite Muslims; the twain meet reluctantly.

So what sounds like a statement of fact – “Iran is the world’s leading sponsor of terror” – is in reality a subjective evaluation. Now what of the claim that with nuclear weapons Iran “can commit incalculable atrocities anywhere in the world”?

The first thing to notice is the auxiliary verb: “can”. There are many states (including Israel) that have the capacity to do the most terrible things to other states. Mankind has survived until now, however, because capacity is only half the story: the will to use that capacity for offensive purposes also needs to exist.

Oren tries to cope with that fact by reminding readers of the “genocidal rhetoric” to which Iran’s leaders are prone. What he fails to mention is that this rhetoric may not be a reliable guide to Iranian intentions and that for thirteen years (1979-1992) Israel’s leaders were happy to assume it wasn’t.

In truth, leading Iranians have been threatening Israel for more than 30 years, but have yet to act. Hezbollah’s 1985 manifesto talks of the “final obliteration” of Israel; but Hezbollah has shown no sign of wanting to use its “70,000 rockets” not in self defence but to bring about that obliteration. At any point in the last 30 years Iran could have supplied Hezbollah with radioactive material for use in “dirty bombs” or with infectious pathogens for dispersal among the Israeli population. Yet, there is no indication that Iran has tried to do so.

Let us suppose, however, that Iran somehow contrives to produce a score of nuclear weapons without the UN Security Council acting to avert such a gross violation of Iran’s Nuclear Non-Proliferation Treaty (NPT) obligations. Would that enable Iran to “commit incalculable atrocities anywhere in the world”?

Of course not. Iran does not possess an intercontinental ballistic missile capability. Iran’s leaders, who are “rational actors” in the view of US intelligence and defence experts, know that an Iranian first use of nuclear weapons would invite the annihilation of their goods and chattels in a nuclear counter-strike. Possession of nuclear weapons does not secure immunity from punishment for outrages committed by terrorist proxies. Nuclear forensic science provides a persuasive deterrent against making nuclear weapons available to terrorist proxies.

So the highly emotive claim that the possession of nuclear weapons would enable Iran to commit atrocities wherever it chooses turns out to be without a solid foundation in reason.

Oren’s article is also remarkable for a number of distortions of the truth, to put it politely. Since 1992, Iran’s leaders have not “systematically lied about their nuclear operations”. They have not “blocked International Atomic Energy Agency (IAEA) inspectors from visiting Iran’s nuclear sites”. They have not “rejected all confidence-building measures”. Iran’s centrifuges are not “spinning even faster” today than in the past. And “with each passing day”, the lives of eight million Israelis are not “growing increasingly imperilled”.

Last, Oren suggests that the President of the United States can bestow on Israel a right of self-defence “against any threat” at a time of its choosing. This is not so. Israel’s right of self-defence flows from and is circumscribed by Article 51 of the UN Charter, since Israel is a party to that Charter.

Article 51 recognises a right of self-defence “if an armed attack occurs against a Member of the United Nations”. Since the Charter was agreed, UN members have come to accept that the clear imminence of an armed attack might also justify acts of self-defence. But it is unlikely that the UN membership, or the Security Council where responsibility for maintaining and restoring peace and security rests, would regard the acquisition of a uranium enrichment capacity by a neighbouring state, even one suspected of having conducted research into the design of nuclear weapons, as amounting to an imminent armed attack.

However, these observations are incidental to my main points: the claim that Iran is “the world’s leading terror sponsor” is subjective and possibly an exaggeration; and, it is highly questionable whether possession of nuclear weapons would lead Iran to commit “incalculable atrocities”. Iran has been responsible for acts of terror since shortly after the founding of the Islamic Republic, but that is not the reason why most members of the international community object to Iran’s attempts to acquire nuclear weapons, or why they welcome the continuing absence of evidence proving nuclear weapons production.

I leave readers to form their own conclusions as to why Israel’s ambassador to the United States seeks to appeal to the emotions and not the reason of the American public, and why he finds it necessary to give an inaccurate account of certain facts.