Should Israel Attack Iran?

by Eric Posner, 10/26/09

That was the topic of a conference last Friday at the American Enterprise Institute.  The three panelists who addressed this question agreed that an Iranian nuclear arsenal would be worrisome indeed, not because Iran would immediately incinerate Tel Aviv, but because it would almost certainly use its conventional forces and its terrorist infrastructure more aggressively once it enjoyed the protection of the Bomb, because an Iranian nuclear force would provoke a nuclear arms race in the middle east, and because collapse of the current regime, should it ever come, might put loose nukes into the hands of dangerous elements who are less interested than the regime in self-preservation or are less easy to identify and target.  Some people believe that if every country had a nuclear weapon, the world would be more peaceful rather than more dangerous—“More Guns, Less Crime” internationally speaking—but the panelists did not.  We survived the cold war but there were a number of close calls; given enough nukes and enough time, something very bad will happen.

John Bolton pressed the case for an Israeli attack with customary vigor, but the other two panelists were more persuasive.  Michael Rubin believed that an Israeli attack would either not succeed at all or do no more than delay the nuclear program by a year or two.  Logistics are too hard; Iranian defenses are good and getting better; the program is too advanced.  Martin Indyk argued that diplomacy could still do some good, but the impression he gave was less that of enthusiasm about the prospects for diplomatic success, which sounded pretty hopeless, but, like Rubin, of the futility of military action, leaving diplomacy as the sole alternative.

With every day, the globe rolls farther from Obama’s (and Reagan’s) dream of a nuke-free world.  Determined states can build nuclear weapons if they want to; foreign states are too divided to prevent them from doing so.  The benefits of holding nuclear weapons, in terms of short-term security and national prestige, are considerable, and they will continue to increase as American power declines and U.S. security guarantees become less credible.  The cost of developing nuclear weapons becomes, every year, a smaller portion of states’ national products and hence a smaller burden on their budgets.  We will just have to live (or die) with this state of affairs.

I was given the humble—indeed, in context, vaguely comical—task of commenting on the law (also on my panel were Edwin Williamson and Gregory Maggs).  Here is what I said.

1.  The black-letter law.

Article 51 of the UN charter permits countries to use military force in self-defense; otherwise, security council authorization is required.  Clearly, Israel will not obtain Security Council authorization, so the only question is that of self-defense.  International law, like domestic law, understands self-defense in narrow terms.  A state may act in self-defense by repelling an attack or countering an imminent attack, but self-defense does not encompass military attacks against states that merely pose a threat, however significant.

In international law, as in other fields of law, the black letter does not always tell us what we need to know.  International law can change as a result of state behavior; treaties can fall out of use, they can be ignored, customary norms can pile up in their place.  So it is legitimate to ask whether norms that recognize broader forms of self-defense have built up over the years and replaced the traditional narrow conception.

It’s a legitimate question but the answer is surely no.   CONTINUED HERE.