The media accounts of Israel's public musings of whether it should attack Iran never discuss the legality of such an attack. There are never any discussions of the role of the UN and the Security Council in authorizing an act of aggression. Seldom is there any analysis of the law of humanitarian armed conflict or just war theory. The term "existential threat" is thrown out as if this term, whatever it means, justifies an attack on a sovereign nation. In effect, the media reports the story as if it is legal, permissible and natural for Israel to attack Iran's nuclear facilities. This is not the case.
The law of armed conflict under international law deals with the circumstances under which a state may use military force against another nation. The UN Charter requires that states first resort to peaceful means to settle disputes. It is difficult to understand what Israel's "dispute" is with Iran. It is probably the same as the US's dispute, namely, that Iran cannot be allowed to have a nuclear weapon. This does not appear to be a legitimate dispute. Article 2, Paragraph 3 of the Charter requires that states engage in diplomacy before resorting to military action. The media reports the Iranian nuclear program in stark "good" and "evil" terms, but the purpose of the formation of the UN was to provide a forum where all nations were placed on equal footing to solve international disputes. The recent International Atomic Energy Agency's report on nuclear verification in Iran [PDF] is not a green light from the UN to attack the country.
The UN Security Council has broad peacekeeping powers and the UN Charter sets out the authority of the council to act with respect to "threats to the peace ... or acts of aggression." The Security Council has the authority to take enforcement action in accordance with Articles 41 and 42 to "maintain or restore international peace and security." So far, it has not authorized an attack on Iran and is not likely to do so, but the total absence of any discussion of the proper role of the Security Council misleads the American public on the legitimacy of such an attack and its potential sanctioning by the Obama administration. Article 2, Paragraph 4 of the UN Charter states that "All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations." Israel and the US routinely threaten the territorial integrity of the state of Iran with bellicose threats to "keep all options on the table" and to not "allow" it to have a nuclear weapon, which are, clearly threats to attack. This is improper under Article 2, and an actual attack on Iran's nuclear facilities would certainly be illegal under international norms. Article 2 is read expansively to mean that the use of force is absolutely restricted unless used in self-defense or in support of others.
The Bush doctrine of "preemptive war" has been used by Israel in several instances Israel has attacked suspected nuclear facilities in Syria and Iraq, each time with no response from the so-called international community. These actions were justified by Israel as "anticipatory self-defense," asserting that an attack was imminent. The US asserted this same doctrine when, in 1986, it bombed Libya after an attack against US soldiers in West Berlin that the US claimed was sponsored by Libya. According to these two powerful states, the word "imminent" seems to mean possible or probable as opposed to "about to occur; impending," as defined in the American Heritage Dictionary. The new international norms being created by the US sponsorship of Israel's activities is the law of the strong, Western, nuclear armed states who can do anything without international sanction. However, the notions of "preemptive war" and "anticipatory self-defense" are not universally accepted by international legal scholars, and function only as an excuse to attack by these powerful states.
The media and the Obama administration routinely assert that Israel views Iran as an existential threat. No one ever defines what this terms means. As far anyone can tell, it seems to mean a threat to someone's or a nation's existence. If in fact it means this, then all of the nuclear powered states are existential threats to all non-nuclear powered states (and to each other) which, presumably, is the reason why states seek to join the "nuclear club." The American media never critically analyzes what is meant by this phrase, and, if it did, it could come to no other conclusion than that it is Israel who is the existential threat to Iran, and in fact to every nation in the region. The media report the proposed threat of Israel not only from the perspective of the legitimacy of the action, but also from the standpoint that Israel has no other options but to attack Iran, which again flouts the purpose of the UN and disregards international law. Further, it presents Israel as a nation that is helpless in the face of the purported "existential threat" and must strike out against it. Neither is true. The press and the US government routinely mention Iranian President Mahmoud Ahmadinejad's purported statement of wiping Israel off the map. This is not proof of Iran being an existential threat to Israel. Even if this statement is taken to be true, Iran does not have the means to carry out such a threat, and even if it did, it has taken no efforts in furtherance of this and there is no evidence that it is seeking self-annihilation. Still, the purpose of international law is to provide a framework for nations to resolve conflicts. If nations are allowed to attack each other based merely on words, then the laws of war are irrelevant. The media and the US administration already seem to believe this.
Other international principles that are routinely ignored by the press include the proper role and application of the Hague and Geneva Conventions and the Nuremberg Charter of 1945, which provide for individual criminal responsibility for "crimes against the peace." The American public would be better educated and could more accurately assess, support or oppose Israel's proposed actions and their government's sponsorship thereto, if international law principles were applied to their media coverage. Without this, Americans believe that such an attack is legal, which fits nicely into the "good" versus "evil" uncritical analysis presented by the media and the government. This is dangerous and the American press must accurately and critically report on this issue if it is to be seen as nothing more than a mouthpiece for the Defense Department.
Bryan Bullock is an employment discrimination and civil rights attorney. He was formerly habeas counsel to several Guantanamo Bay detainees and he is an Adjunct Professor at Indiana University Northwest.
Suggested citation: Bryan Bullock, Israeli Action Against Iran: The Need for Greater Legal Scrutiny, JURIST - Sidebar, Dec. 13, 2011, http://jurist.org/sidebar/2011/12/bryan-bullock-iran-israel.php.
This article was prepared for publication by Edward SanFilippo, the head of JURIST's professional commentary service. Please direct any questions or comments to him at email@example.com