Posted on 12/18/2005 2:16:41 PM PST by billorites
According to Mohamed ElBaradei, the world is "losing patience" with Iran. And, indeed, recent press reports indicate that Israel is considering the use of force to prevent Iran from further developing a nuclear program. The potential of such preemptive force brings up the ghost of the Osirak Reactor bombing and raises a number of critical legal and political questions.
Preemption and International Law
While there is a debate among international legal scholars about the permissibility of the preemptive use of force under the United Nations Charter, most scholars and states would acknowledge that "anticipatory self-defense" continues to be lawful under existing international law. The classic case that affirms the criteria for the lawful use of preemptive force is the Caroline incident. The Caroline was a ship owned by American nationals that allegedly had been used in providing support for an insurrection in Canada. In late December of 1837, while the ship was docked on the American side of the Niagra River, British forces crossed the river, set the ship on fire and sent it over Niagra Falls. The United States-- through its Secretary of State Daniel Webster--protested, and the British ultimately apologized. But in the course of the diplomatic exchanges that took place, two criteria for permissible preemptive self-defense were articulated: 1) Necessity and 2) Proportionality. First, the state using force must be able to demonstrate that an attack on it was imminent. As Webster noted in one of his letters to the British, the state would have to "show a necessity of self-defence, [that is] instant, overwhelming, leaving no choice of means, and no moment for deliberation." Second, the state using force would have to respond in a manner proportionate to the imminent threat.
In 1981, when Israeli bombers attacked the Iraqi Osirak Reactor, the United Nations Security Council condemned the action, finding that the attack was "in clear violation of the Charter of the United Nations and the norms of international conduct." During the discussion at the Council, several states criticized Israel for failing to meet the necessity criterion of Caroline because no Iraqi attack was imminent. The British representativie to the Council, Sir Anthony Parsons, for example, argued that "[t]here was no instant or overwhelming necessity for self-defence."
If Israel were to attack Iran now, the same conclusion would obtain. While an Iranian move toward the development of a nuclear weapons program is extraordinarily troubling, there is no indication at this time that an Iranian attack on Israel-- or any other state for that matter-- is imminent. Accordingly, a preemptive strike by Israeli would be a violation of international law as understood by the great majority of legal scholars and states.
Preemption and Politics
And not only would a preemptive attack on Iran violate international law, it would also be bad politics. Steve Bainbridge has recently posted:
The idea that there is a quick military fix to the problem thus strikes me as implausible. It may well be that a policy of economic sanctions, containment, and deterrence is the best option, despite concerns as to whether Iran can be deterred. One thing does seem clear, however, and that is that the US will come in for a lot of the blame if Israel attacks Iran. It is not in our national interest to let Israel use US-supplied weapons in a lone wolf capacity. We have no business letting Israel drag us into a wider war in the Middle East.
Mohamed ElBaradei has suggested another approach:
Sweden-Nobel Peace Prize winner Mohamed ElBaradei said Monday he thinks the United States will need to give Iran a security guarantee before a final agreement can be reached regarding the country's atomic program.
ElBaradei, who heads the International Atomic Energy Agency, also said the U.S. will need to become more involved in the stalled negotiations between Iran and the European Union, aimed at making Tehran permanently freeze nuclear enrichment.
"I think part of the negotiations should be providing Iran with security assurances," ElBaradei said after meeting with Swedish Prime Minister Goran Persson to discuss the work of the IAEA. "I hope that as the negotiations with the European Union proceed that the United States at a certain point will be more engaged. We look at the United States ... to do the heavy lifting in the area of security."
In September, North Korea agreed to abandon its nuclear program in exchange for security guarantees and energy aid, and ElBaradei said a similar package will be needed to bring the negotiations with Iran to a successful close. Tehran temporarily froze its enrichment program in November 2004, but the Europeans want it permanently halted.
"I very much see (security assurances by the U.S.) as part of the final solution," ElBaradei said.
Both Bainbridge and ElBaradei make sense. Using military force against Iran would be disastrous. The Iraqi conflict has enflamed the situation in the Middle East enough. The United States should work to develop a diplomatic approach that employs both the stick of sanctions and the carrot of security assurances. It should use all its influence to strongly discourage any state in the region from using military force against Iran. Perhaps there will come a time when such use of force would make sense, but that time is not now.
Of course Islamofascists would blame Israel for such an "industrial accident," it would be a no-brainer. It would increase anti-Israeli sentiment in the Arab world if Israel was blamed, therefore Israel would be blamed.
BTT...
Law is an attribute of sovereignty.
There is no power sovereign over the world, hence, there is no such thing as international "law".
And the debate about what is "permissible" under that piece of toilet paper called the UN Charter?
Absurd.
Absurd to the tenth power.
"The filthbags now in charge in Iran make Hitler look like a 10 year old schoolgirl by comparison."
I dont know about your ratio, but they teach the exact same message that it is their duty to erradicate the Jews from the earth. Knowing history, I have no doubt other Western countries would have attacked Nazi Germany in 1935-36 before they had completed the Panzer battalions that swept through Europe.
"It is so...I was talking to several Army officers the other night, that's what they said. I spoke of Israel and they confirmed there's a real possibility that Israel will hit Iran."
Well it made national media (was it August?) that we 'sold' Israel 5000 smart bombs. They will put this to good use no doubt. Israel already has a substantial deterrent so....
"The US doesn't have to do anything. Israel will take care of this problem easily and efficiently, like they did with Saddam's nuclear facility some years ago. The Israeli air force is so far superior to the Iranian defenses that it is unlikely they will lose a single aircraft."
Maybe, but Iran learned from Osirik and has buried their major facilities deep underground.
"Of course the accusation would be made by the foaming at the mouth anti-semites the world over, nothing can stop that. It's those in the world whose thinking doesn't solely consist of "It's was the evil JOOOOZ!" I referred to."
Isn't it interesting yet sad that we have not learned from human history about our behavior? Our species must always have someone or something for our personal or collective failures.
This all started with France and that creepy Khomeini.
I didn't know the facility is deep underground. This will make it much more difficult, depending on how deep. This may be why they're reported to be planning some kind of combined air and ground assault this time.
If it comes to this, criticism will be the least of our concerns. Personally, I'd really prefer not to have anyone get bombed-- us, euro's, or Iranians. But my take on the matter is gloomy and I have concluded that something decisive will one day have to be done.
These mullahs are nuts and capable of anything. That means, we must be capable of whatever it takes to stay safe.
Indeed. What does "containment" mean, when the problem is a handful perhaps of intermediate range missiles launched from Iranian territory toward Israel, and maybe Europe, by fanatics who don't care if they get vaporized in return? What "sanctions" could possibly mean anything more than a mosquito bite to such savages?
I agree some day we will have to do something, but let the Euros sweat. Who knows they may wake up some day and do something themselves.
The West.....???
While "the West" is sitting on their ass, Israel will be removing this threat.
Can't wait to hear the DemoRats bust their spleen when it happens.
When it happens.........not "if"...........when.
LVM
"I didn't know the facility is deep underground. This will make it much more difficult, depending on how deep. This may be why they're reported to be planning some kind of combined air and ground assault this time."
An attack on the ground would likely be the only real solution. Leave the population out of it and keep the leadership underground as we restructure a new democracy around it. That is what worked with Saddam, he was still alive and claiming he was the ruler while a new government was being formed.
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