Iran's legal right to attack
Israel By Kaveh L Afrasiabi
PALO ALTO, California - After years of
living in the shadow of an Israeli military
strike, Iran is now openly contemplating the idea
of pre-emptive strike, in light of Israel's
preparedness for imminent attack on Iran's nuclear
facilities. Citing a right to anticipatory
self-defense, the Iranian argument is that instead
of waiting for its Zionist adversary to make a
move, Iran should take the offensive and cripple
Israel's ability to deliver on its threatened
assault.
Iran's plan to initiate a
pre-emptive strike on Israel is perfectly legal
under customary international law, according to
several Tehran political analysts specializing on
Iran's foreign affairs. "Under the UN Charter,
Iran has the inherent right of self-defense that
in this case translates into the right to respond
to the clear and present danger of imminent attack
by the state of Israel in clear violation of
international law," says a Tehran University
political scientist who
spoke to the author on the condition of anonymity.
In a nutshell, Tehran's legal argument in
defense of a pre-emptive strike on Israel centers
on several inter-related elements.
First,
under Article 51 of the UN Charter, Iran has the
right to strike Israel because Israel has already
engaged in overt hostile acts including the
assassination of Iran's nuclear scientists,
sabotage, and life-threatening cyber-warfare, not
to mention Israeli political and military leaders'
open declarations of intent to attack Iran in the
immediate future.
Second, these illegal
acts combined with the declarations of intent
constitute an imminent national security threat to
Iran, defined under customary international law in
terms of "outward hostile acts" of one state
against another.
Third, Iran has already
exhausted all the diplomatic means for deterring
an Israeli strike, such as by repeatedly
complaining to the UN Security Council, to no
avail as the Security Council has turned a blind
eye.
Fourth, Israel's stated intention to
attack Iran violates international law for a
number of other reasons:
Iran has never threatened to use its nuclear
capability to attack Israel.
There is a legal bar against any attack on
Iran's civilian nuclear facilities, in light of
the Resolution 533 of International Atomic Energy
Agency (IAEA), which prohibits any such attack and
deems it a violation of international law.
Iran is a signatory to the Non-Proliferation
Treaty (NPT), its leadership has formally
renounced nuclear weapons, there is an absence of
any treaty constraint barring Iran's possession of
a nuclear fuel cycle, and to this date after
extensive inspection of Iran's nuclear facilities,
the IAEA has never detected any diversion of
nuclear material to military purposes.
Evidence, including reports in Washington Post
citing the opinion of US Defense Secretary Leon
Panetta, suggests Israel is well beyond the
"preparatory stages" of an attack on Iran and is
gearing up to implement this plan within the next
several months.
Taken together, these
arguments make a potent legal case for Iran's
anticipatory strike on Israel, irrespective of
whether or not Iran moves forward with it or has
the actual capability for a successful pre-emptory
attack to disable its ardent enemy. According to
Iranian media reports, Iran has some 11,000
missiles able to hit targets throughout Israel.
The issue of military capability aside, within
Iran's legal discourse, the unlawfulness of
Israel's hostile intention and the lawfulness of
Iran's right to attack Israel first are basically
two sides of the same coin. Even the UN sanctions
on Iran, let alone US and or Israeli war on Iran,
should be viewed as illegal under international
law.
According to the International Law
Commission's Draft Articles, an intentionally
wrongful act of a state comprises two elements
(Article 3): the objective element consisting in
an action or omission contrary to an international
obligation, and the subjective element having to
do with intentions of a state. Neither element can
be found with respect to Iran's nuclear program.
The absence of any evidence of diversion
of nuclear material to military activities, based
on extensive inspection of Iran's facilities by
the IAEA, together with explicit renunciation of
nuclear weapons on political and moral and
religious grounds by Iran's leadership, constitute
a bar to the application of both sanctions as well
as threats of war on Iran. [1] This is a reminder
to a number of international observers who have
hailed United States President Barack Obama's
recent criticisms of "irresponsible drumbeats of
war on Iran," overlooking that Obama's explicit
threat of keeping the "military option"
constitutes a violation of UN Charter, that
forbids such threats by UN member states.
The fact is that Obama, a former professor
of constitutional law, continues to get it wrong
on Iran by insisting that once all diplomatic
channels are exhausted, then the US may resort to
the final option of attacking Iran's nuclear
facilities. As a number of sane US pundits, such
as Yale law professor Bruce Ackerman, in his
recent opinion piece in Los Angeles Times, have
rightly pointed out, any such strike would be
illegal from the prism of international law.
To add to Ackerman's argument, pro-Israel
pundits legitimizing an Israeli attack on Iran
have willfully distorted the meaning and purview
of the right to self-defense, by advancing a
dubious understanding that harks back to the
George W Bush administration's ill-fated attempt
to extend the definition of "anticipatory
self-defense," which was thankfully defeated at
the UN. [2]
A historical deja vu,
the present pro-Israel discourses on attacking
Iran, are strikingly similar to the ones heard
prior to US's "proxy war" on Iraq nine years ago,
which was fully rationalized by the whole army of
Israel propagandists swarming the Western media.
The big question is whether or not the
international community has learned any lesson
from the Iraq fiasco and, more important, whether
voices of reasons can prevail over voices that
thirst for another calamitous conflict in the
Middle East? By all indications, the next several
months will hold the answer to this critical
question.
Kaveh L
Afrasiabi, PhD, is the author of After
Khomeini: New Directions in Iran's Foreign Policy
(Westview Press) . For his Wikipedia entry,
click
here. He is author of Reading In Iran
Foreign Policy After September 11 (BookSurge
Publishing , October 23, 2008) and Looking for
Rights at Harvard. His latest book is UN
Management Reform: Selected Articles and
Interviews on United Nations CreateSpace
(November 12, 2011).
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