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Article Excerpt
I. INTRODUCTION
II. IRAN'S PURSUIT OF NUCLEAR WEAPONS A. A Primer on Nuclear Technology and the Nuclear Non-Proliferation Treaty B. Iran's Covert Nuclear Efforts C. Negotiations with the International Community 1. Iranian Negotiating Tactics 2. Relying on Russia and China D. Is an Iranian Bomb Inevitable? III. IRAN'S ANTI-ISRAEL AGGRESSION A. Mahmoud Ahmadinejad: Escalating or Perpetuating the Status Quo? B. The Convergence of Iran's Nuclear and Anti-Israel Agendas C. The Threats Posed to Israel by a Nuclear-Armed Iran 1. The Threat of a Nuclear Strike 2. Terrorism with Impunity IV. POTENTIAL RESPONSES TO THE IRANIAN THREAT A. International Negotiations Aimed at Keeping Iran Within the NPT B. Sanctions C. Regime Change D. Deterrence E. Military Force 1. The Last Resort: Withering International Criticism or Military Force? 2. The Necessity and Feasibility of an Israeli Strike V. THE LEGALITY OF ISRAELI PREVENTATIVE ACTION AGAINST IRAN A. The Charter and Traditional International Law B. John Yoo's Probability/Magnitude Model C. Polebaum's Reasonable Nation Standard VI. CONCLUSION
Abstract
Few question the conventional wisdom that Iran is well on its way to building a nuclear weapon. Yet even fewer acknowledge that once Iran masters the nuclear fuel cycle, the so-called "point of no return," this path will be irreversible. Among the consequences that would follow, this Article focuses on the two particular threats that a nuclear-armed Iran would pose to Israel: the existential threat of a nuclear strike and the threat of an undeterrable and relentless escalation in anti-Israel terrorism. International efforts to stop Iran have nevertheless ignored the point of no return, relying instead on strategies that offer, at best, the possibility for results in the long term, such as negotiations, sanctions and regime change.
As the country most threatened by a nuclear Iran, Israel may have no choice but to pursue a preventative strike that could forestall nuclear progress in the short term. Traditional international law would nevertheless prohibit such action, and this Article therefore uses Israel's predicament as a means of evaluating alternative legal models for an era in which anticipatory self-defense principles must adapt to terrorist and rogue state warfare. Using the Iranian-Israeli conflict as an example, the Author concludes that for international law to maintain relevance, it must offer states a credible and realistic way to defend themselves preventatively.
I. INTRODUCTION
The subtle but palpable shift towards normalized Arab-Israeli relations, fueled by the Gaza withdrawal and the U.S.-led war on terrorism, has isolated Iran as the key remaining opponent to Israel's existence. (1) Amidst this isolation, Iran's president has called for Israel to be "wiped off the map," (2) and so it is with alarm that Iran has been accused of developing nuclear weapons with the potential to destroy Israel in a single stroke. Iran maintains that it seeks nuclear power only for civilian energy, but a record of concealment and duplicitous diplomacy has laid this claim open to distrust. Israel is widely acknowledged to be the country most directly threatened by a nuclear-armed Iran, which would be capable of annihilating Israel by missile strike or intensifying its terrorist attacks on Israel with impunity.
Military force lies at one end of a long spectrum of options open to Israel and others threatened by the prospect of a nuclear Iran. Yet beyond an international consensus that something must be done, diplomats have yet to settle on a common course. Since the long-awaited referral of the matter from the United Nations' atomic energy watchdog to the Security Council in February 2006, sanctions, regime change, and military force have been proposed but not acted upon. This Article catalogues the arguments for and against these options, and concludes that while none are palatable, the military option may be necessary as a short-term measure to prevent an Iranian nuclear weapon from becoming inevitable.
Perhaps sharing this conclusion--or perhaps out of rhetorical bravado--Israeli officials have responded to Iran's genocidal threats, sponsorship of anti-Israel terrorism, conduct of open war on the Lebanese border through a terrorist vassal, and concomitant efforts to build a nuclear bomb by threatening preventative destruction of Iran's nuclear capacity. Therefore, this Article addresses whether Israel would be justified, under international law, in acting in preventative self-defense.
Part I documents Iran's pursuit of nuclear weapons and its success in forestalling international intervention. Part II traces Iranian-Israeli relations and describes the multifaceted threat that a nuclear-armed Iran would pose to Israel. Part III examines potential international responses to the Iranian threat, concluding that in Israel's case, force may be the only viable option. Accordingly, Part IV uses three prevalent legal standards to evaluate the legality of an Israeli preventative strike. The Article ultimately seeks to determine whether, should Israel choose to act in self-defense, it should be forced to do so under a veil of illegitimacy.
II. IRAN'S PURSUIT OF NUCLEAR WEAPONS
The war of words over the legitimacy of Iran's nuclear research is more than diplomatic banter. Underlying the conflict are threshold issues such as the science behind nuclear weapons, the sordid history of Iran's nuclear program, and the nature of its negotiations with the international community to maintain that program. Though evidence that Iran's program is directed at a bomb is not conclusive, in all likelihood the only open question is when Iran will be armed with nuclear weapons. (3)
A. A Primer on Nuclear Technology and the Nuclear Non-Proliferation Treaty
Although the science behind nuclear weapons is beyond the scope of this Article, a brief detour into the phases of nuclear power development is warranted. (4) First, uranium ore is mined, crushed, and reconstituted in solid form as "yellow cake." This intermediate substance is then enriched in centrifuges in order to increase the proportion of more powerful atoms within the uranium particles. The nuclear fuel cycle thus takes years to master because of both the requisite experimentation and the need to build up a store of enriched uranium. The enriched uranium can then be fed into a nuclear reactor to create electricity for civilian usage. Finally, spent fuel from the reactor is reprocessed to divide potentially valuable uranium, as well as plutonium (a different kind of nuclear fuel), from nuclear waste. (5)
Mastering this process does not, however, surmount all the obstacles to a nuclear weapons program: building up a store of nuclear material (uranium and plutonium), making bombs with that material, and constructing missiles to deliver those bombs to a target are difficult hurdles to the state in search of a nuclear weapon. (6) Even states that have invested years in mastering the nuclear fuel cycle and building up stockpiles of weapons-grade uranium and plutonium are likely to need even more years to create a controlled nuclear explosion. (7) Further, missile capability is critical--while radioactive material can simply be combined with explosives to create a "dirty bomb," these are far less destructive than a conventional nuclear weapon. (8)
The enrichment and reprocessing phases pose the highest risk that nuclear material will be diverted from civilian to military use. (9) During enrichment, uranium can be enriched to a higher degree to form the basic ingredients of a uranium bomb. (10) During reprocessing, leftover uranium and plutonium can be diverted to bomb-making instead of back into the production of civilian energy. (11) Therefore, nuclear technology is generally considered "dual use," and much of the concern over nuclear proliferation stems from the ability to run a covert nuclear weapons program within a broader civilian nuclear energy program. (12)
The Nuclear Non-Proliferation Treaty (NPT) was designed precisely to reduce diversion. The NPT distinguishes between nuclear weapon states and nonnuclear weapon states, committing the former not to transfer their technology and the latter to undertake research only for peaceful purposes and to accept safeguards. (13) Thus, while nonnuclear weapon signatories are granted the "inalienable right ... to develop research, production and use of nuclear energy for peaceful purposes," they are required to submit to an inspections and compliance regime set out in an individualized agreement negotiated with the International Atomic Energy Agency (IAEA) subsequent to their ratification of the NPT. (14) These "safeguards" are intended to prevent diversion, slow the spread of nuclear technology, and reduce the chances of a Chernobyl-like nuclear accident. (15) However, in a gaping loophole, any signatory is permitted to withdraw from the NPT and its supplemental agreements with only ninety days notice. (16)
B. Iran's Covert Nuclear Efforts
Iran ratified the NPT in 1970, during a period in which its Shah enjoyed good relations with the West, although it launched a parallel, clandestine nuclear weapon program at the same time. (17) This was in stark violation of the agreement that Iran had signed with the IAEA, which requires that Iran disclose all of its nuclear research, (18) permit IAEA inspections of its facilities, (19) and generally ensure that its civilian research will not be diverted to military purposes. (20) So in August 2002, when an Iranian opposition group disclosed the existence of secret uranium enrichment facilities, (21) Iran's nuclear portfolio--already a concern to many for some time (22)--vaulted to the top of the international community's watchlist.
It is now clear that the Islamic fundamentalist regime ruling Iran has aggressively sought nuclear technology since coming to power in 1979. The regime enlisted the aid of Dr. Abdul Qadeer Khan, a renegade Pakistani nuclear scientist who provided detailed drawings and lists of equipment to be procured from nuclear states. (23) Under Khan's guidance, the Iranians embarked on an impressive scheme to evade export controls on dual use technology. (24) Bartering with its vast oil reserves, the Iranians enlisted the aid of France, China, and Germany in building their nuclear (25)facilities. The regime was successful in luring many scientists living in exile to return and work on its nuclear enterprise. (26) Of course, the discrete and severable nature of these and other steps that Iran has taken toward nuclear status has given it deniability. (27)
While there is no smoking gun evidence of Iran's true motives for nuclear research, many doubt that the world's fourth largest exporter of oil would so aggressively pursue nuclear power for energy purposes. (28) A 2003 IAEA investigation of Iran confirmed the existence of at least two processing plants capable of producing materials for nuclear arms. (29) Subsequent investigations revealed at least seven secret nuclear sites and traces of uranium concentrated at levels that belie Iranian assertions. (30) U.S. intelligence has uncovered Iranian drawings of a subterranean tunnel designed for an underground atomic test, as well as a laptop computer, allegedly stolen from Iranian operatives, containing plans for a secret, small-scale facility to enrich uranium and build a ballistic missile capable of accommodating a nuclear warhead. (31) Finally, Iran's longstanding investment in a long-range missile--the "Shahab"--that is most effectively used with a nuclear, chemical, or biological warhead, is "corroborating evidence about Tehran's nuclear weapons intentions." (32)
Iran has clearly created a dual-track research process: its civilian energy efforts lag so far behind its nuclear weapon efforts that its claims of a single track of peaceful research are simply not credible. (33) If all Iran wanted was civilian energy, it would not refuse a longstanding Russian offer to provide a permanent supply of low-grade nuclear fuel, thereby allowing Iran to skip the second (and most diversion friendly) phase of nuclear technology. (34) Ultimately, Iran's focus on super-enrichment, its history of concealment, and its virtually limitless supply of oil leave most experts convinced that it is in fact seeking a nuclear weapon. (35)
Not only has Iran failed to live up to its obligations under its NPT-based agreement with the IAEA, it has actively obstructed IAEA investigations by using front companies to conceal relationships between its nuclear facilities and its military. (36) In one instance, the Iranians razed a previously undisclosed uranium enrichment facility, identified via satellite, and sanitized the surrounding soil prior to IAEA testing. (36) And rather than offering even token confidence-building measures, the Iranians have uncompromisingly asserted their NPT-based "inalienable right" to peaceful nuclear research, dismissing the considerable evidence arrayed against their claims that the research is for peaceful purposes. (38)
C. Negotiations with the International Community
The "unsettling Iranian record of concealment, lies, and obfuscation," set off a flurry of diplomatic activity, catching Iran off-guard and red-handed by the revelation of its nuclear progress. (39) Wary of antagonizing a Bush Administration already at its doorstep in neighboring Iraq and Afghanistan, in December 2003 Iran agreed to suspend enrichment activities and sign the Additional Protocol to the NPT that provides for "anytime-anywhere" IAEA inspections. (40) Since then, Iran has negotiated primarily with France, Germany, and Britain (collectively, the "EU3") for the right to continue its nuclear research. (41) The United States has generally stayed on the fringes of the talks because it lacks formal diplomatic relations with Iran and rejects the negotiations' presupposition that Iran's research is only for peaceful purposes. (42) Fulfilling the Americans' prophecy, and in a tactic it would employ repeatedly, Iran announced in January 2004 that it would breach the agreement and resume the prohibited activities. (43)
Negotiations continued, but the Iranians repeatedly maintained a blanket right to nuclear technology while leading the EU3 along with vague hints of potential compromise. (44) In May 2005, Iran once again agreed to suspend its activities, this time in exchange for incentives to be forthcoming from the EU3. (45) By August of that year, Iran had lost patience and announced that it would again breach the agreements and resume its research. (46) In September, Iran's president went before the United Nations and brazenly rejected any compromise over his nation's right to nuclear power. (47) While a subsequent IAEA resolution decried an "absence of confidence that Iran's nuclear program is exclusively for peaceful purposes," it failed to lay the groundwork for referral to the U.N. Security Council. (48)
The Iranian parliament nevertheless responded with a law that would bar any inspections of the country's facilities in the event of referral. (49) Three days before the IAEA was to meet again, referral was taken off the table. (50) Nevertheless, on the eve of their inaction, IAEA member states acknowledged substantial evidence indicating Iran's ulterior motive for nuclear research. (51) Negotiations continued through January 2006, but Iran refused to yield to international demands for full disclosure of its efforts and pledged to "continue until they master nuclear energy." (52) The Iranians summoned the IAEA to remove seals from their enrichment plants--seals that had likely been nothing more than symbolic (53)--and boldly announced the resumption of their nuclear program. (54)
In February, the United States made its strongest push for referral yet and succeeded in extending its coalition beyond the EU3: Russia and China, surprised by Iran's continuing obstinacy, agreed to vote for referral, but only on the condition that no formal action be taken before March. (55) This delay was designed to give Iran time to reintroduce its moratorium on uranium enrichment and thereby comply with its IAEA obligations. (56) However, the follow-up IAEA report that laid the groundwork for the March 2006 IAEA board meeting reported that Iran still failed to reveal the "scope and nature" of its nuclear program, making it impossible to prove that its program was exclusively for civilian energy. (57) On the eve of the meeting, Iran sought a last minute reprieve from the EU3. (58) Once this ploy failed, the Iranians reversed course and proclaimed that if they were formally referred, they would escalate their activities from mere "research" to large scale enrichment. (59) The March 2006 meeting did result in referral to the Security Council, however that body has since failed to stop Iran's march towards a nuclear weapons program. (60)
Meaningful Security Council action was first forestalled by yet another European incentives package, offered on June 6, which the Iranians inexplicably refused to respond to before August 22. (61) In the interim, the Iranian proxy Hizbullah launched a war against Israel, a move many believe was calculated to divert the world's attention from Iran. (62) The Iranians were only partially successful in this regard--on July 31, the Security Council succeeded in passing a resolution demanding the suspension of nuclear activities by August 31. (63) The resolution failed, however, to make noncompliance an automatic trigger for diplomatic and economic sanctions, and instead did no more than open the door to nebulous "appropriate measures." (64)
1. Iranian Negotiating Tactics
Iranian negotiator Ali Larijani, whose predecessor took a more conciliatory approach to Western condemnation, has won praise in Tehran for proving the mantra that "if you stand up to the West, they'll buckle." (65) Pursuing a strategy that emanates from Iran's Supreme Leader Ayatollah Ali Khamenei, Larijani "whittled away the suspension [of uranium enrichment] step by step, testing the EU while establishing 'facts on the ground' ahead of any future settlement." (66) This negotiating strategy is an elaborate shell game: the Iranians compromise just enough to keep their counterparts interested, breach the compromise either out of impatience or simply because they perceive weakness in their counterparty, and finally, contritely promise to adhere to a new compromise if allowed to return to the negotiating table.
If those promises are insufficient, the Iranians use threats--such as barring inspections, (67) withdrawing from the NPT, (68) or even raising the price of its oil exports (69)--in order to draw their counterparts back into negotiation. There is also evidence that Iran has gone as far as to order terrorist attacks and foment
Muslim unrest in countries that oppose its nuclear program. (70) Thus, the Iranians "skate[] right at the edge of controlled pugnaciousness." (71)
2. Relying on Russia and China
The Iranians have also drawn on their relationships with Russia and China to delay resolution of their nuclear portfolio. Both have sold substantial amounts of nuclear technology to Iran, (72) have significant economic relationships with Iran (China relies on Iran for oil and Russia for billions in defense contracts), (73) cast important votes at the IAEA, and maintain veto power in the Security Council. (74) Although both ultimately voted in favor of reporting Iran to the Security Council in February 2006, they were behind the watering down of the resolution and have continuously blocked any meaningful Security Council action. (75)
The Russians have held separate negotiations with the Iranians over a proposal to process Iran's nuclear fuel and thereby prevent diversion; (76) fully aware that the negotiations were going nowhere, the Russians are alleged to have made them appear credible in order to delay Security Council action. (77) Iranian officials gave conflicting signals about the proposal, fueling suspicion that they were just "stalling for time." (78) In fact, at one point the two parties even announced a compromise on the matter, only to have Iranian officials announce hours later that the compromise did not curb their right to autonomous nuclear research. (79) Iran has "merely used talks about such talks to try to divide Russia and China from Europe and America" (80) in the hopes of delaying countermeasures long enough to "build up a civilian nuclear infrastructure under the protection of the [NPT], and then convert it to military use [after] abandon[ing] the treaty" (81) by use of the 90-day withdrawal loophole described above.
As of this writing, though the August 31 deadline has long passed, Iran has forestalled any Security Council action by continuing to float compromise proposals that disappear days later and by insisting on holding talks about talks. (82)
D. Is an Iranian Bomb Inevitable?
Despite the virtual consensus that the Iranians are pursuing a nuclear bomb,...
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