Vol. 12, No. 3 25 March 2012
- During his March 4 AIPAC speech, President Barack Obama came closer than ever before to declaring that, should sanctions fail, he was prepared to use military force to stop Iran from acquiring nuclear weapons. Did this mean that the Obama administration is indeed prepared to launch a preventive strike at Iran’s nuclear facilities in the future?
- If that is the case, this would represent a sharp break from the position of many of the critics of the 2003 Iraq War who rejected the legal right of the U.S. to undertake such attacks.They included highly respected scholars like Harold Koh, the Dean of Yale Law School, who would become the legal adviser to the State Department under Obama.Koh wrote in the Stanford Law Review in 2003 that the Iraq War “was illegal under international law.” These legal questions from the Iraq War are likely to have an impact on how the Obama administration treats the Iranian issue.
- Former Secretary of Defense Robert M. Gates, who headed the CIA in the 1990s,has noted that by the time the U.S. may know whether Iran has crossed the nuclear threshold, it might be too late to take any action. “If their policy is to go to the threshold but not assemble a nuclear weapon, how do you tell that they have not assembled? I don’t actually know how you would verify that.”
- Historically, past U.S. governments have used force without any UN authorization: from Kennedy’s naval quarantine around Cuba to Reagan’s air attack on Libya to Clinton’s missile strikes on the El-Shifa chemical plant in Sudan which was suspected of being a weapons factory. The same is true of NATO’s war against Serbia over Kosovo. None of these attacks involved an imminent threat of attack on the U.S.
During his March 4 AIPAC speech, President Barack Obama came closer than ever before to declaring that, should sanctions fail, he was prepared to use military force to stop Iran from acquiring nuclear weapons. He explicitly rejected the idea that the U.S. should base its approach in the future on deterring a nuclear Iran, stressing that his policy was preventing a nuclear Iran instead: “Iran’s leaders should know that I do not have a policy of containment; I have a policy to prevent Iran from obtaining a nuclear weapon.”1
Obama then listed the efforts his administration had undertaken against Iran, at the end of which he said: “and yes a military effort to be prepared for any contingency.” He repeated, “I will take not options off the table,” adding, “and I mean what I say.” There was no explicit guarantee that the U.S. would attack Iran if Tehran reached the point of assembling a weapon. Secretary of Defense Leon Panetta further clarified the administration’s policy two days after Obama spoke: “Military action is the last alternative if all else fails, but make no mistake: When all else fails, we will act.”
Did this mean that the Obama administration is indeed prepared to launch a preventive strike at Iran’s nuclear facilities in the future? If that is the case, this would represent a sharp break from the position of many of the critics of the 2003 Iraq War who rejected the legal right of the U.S. to undertake such attacks.
Is Preemption Legal?
These critics were mostly found in the halls of American academia and a number of leading law schools, which had been Barack Obama’s milieu before he entered politics. They included highly respected scholars like Harold Koh, the Dean of Yale Law School, who would become the legal adviser to the State Department under Obama. Koh wrote in the Stanford Law Review in 2003 that the Iraq War “was illegal under international law.”2 These legal questions from the Iraq War are likely to have an impact on how the Obama administration treats the Iranian issue.
In the shadow of 9/11, it was the 2002 Bush Doctrine that asserted most forcefully the U.S. right to engage in preventive attacks when it spoke about “taking the battle to the enemy…to confront the worst threats before they emerge” [emphasis added]. In contrast, the famous Article 51 of the UN Charter asserts an “inherent right of self-defense if armed attack occurs against a member of the United Nations.” As a result of this language, there has been a school of thought in the legal community that insists that the use of force is only permitted after an armed attack has actually occurred.
But the legal implications of the language of Article 51 are not so clear-cut. In fact, there has been a second school of thought which recognized the right of preemption in armed conflict, which is sometimes called “anticipatory self-defense,” on the basis of customary international law.3 Historically, the right of preemption was recognized as far back as the nineteenth century, when Secretary of State Daniel Webster detailed the preconditions for preemptive strikes after the British attacked an American steamer, the Caroline, along the U.S.-Canadian border.4
According to this second school of thought, the right of preemption that existed in international customary law was not superseded by the strict language of Article 51 of the UN Charter. For example, Sir Humphrey Waldock, who would become President of the International Court of Justice in The Hague, delivered a lecture in 1952 in which he stated: “it would be a travesty of the purposes of the Charter to compel a defending State to allow its assailant to deliver the first and perhaps fatal blow.”5 Israel’s attack in the 1967 Six-Day War demonstrated again the legitimacy of preemption when it appears that war is about to break out.
The Bush Doctrine
Bush took this a step further, past preemption to prevention, by saying that America was not going to wait until the last minute before acting, but rather would neutralize threats well before they became imminent. His National Security Strategy document argued: “We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries.”6
Within two years, Bush’s ideas were forcefully rejected, especially in liberal circles, as U.S. forces became bogged down in the Iraqi insurgency. The New York Times published an editorial in September 2004 entitled: “Preventive War: A Failed Doctrine.” Along with Harold Koh, Prof. Michael Doyle from Columbia University convened a seminar in 2008 under the prestigious Carnegie Council, which he opened by saying, “talking about preventive self-defense today, in the wake of the Iraq fiasco, is something like interviewing the passengers in the lifeboats of the Titanic about their views on ocean travel.”7 It seemed that the U.S. was not again going to take military action so quickly against a rogue state developing nuclear weapons, as in the case of Iraq.
There were two main legal arguments repeatedly voiced against preventive military actions by the U.S. First, the threat they were seeking to neutralize was not imminent, as in the case of a preemptive strike, but rather was still undergoing a process of formation. Alan Dershowitz explained in his 2006 book, Preemption, that there was a consensus that such preventive attacks against non-imminent threats were very problematic under international law. But should preemption and prevention be treated so differently, considering that the real difference between them is how far away the threat they are addressing appears on a timeline?
Today, moreover, there is a growing problem with waiting until the last minute for an imminent threat. In the conventional battlefield, imminent threats are visible. There are classical signs that intelligence services can pick up weeks before a war, like reserve mobilization and the movement of forces from their normal bases to the front with their ammunition stocks. In any event, if state practice since World War II is carefully examined, states have been prepared to take preventive military action against non-imminent threats when facing the prospect of an eventual change in the balance of power.
Will the U.S. Intelligence Community Give a Warning in Time?
But in the push-button era of missiles, it is much harder to know that an enemy is preparing an imminent attack, in which case a preemptive strike might be considered. Moreover, the risks of waiting until those preparations become evident are much too great with nuclear weapons. For that reason, there have been efforts underway to update international law.
Up to this point, President Obama has not been prepared to take preventive action against Iran precisely because he believes he has plenty of time. He told The Atlantic’s Jeffrey Goldberg in a recent interview: “Iran does not yet have a nuclear weapon and is not yet in a position to obtain a nuclear weapon without us having a pretty long lead time in which we will know that they are making that attempt.”
But is Obama’s sense of confidence warranted regarding the ability of the intelligence services to warn him in time? Two years ago, Robert M. Gates, then the secretary of defense, was discussing the Iranian nuclear program and he asked himself: “If their policy is to go to the threshold but not assemble a nuclear weapon, how do you tell that they have not assembled? I don’t actually know how you would verify that.”8
Gates fully understood the limits of intelligence; in the 1990s he headed the CIA. The import of what Gates was saying is that by the time the U.S. may know whether Iran has crossed the nuclear threshold, it might be too late to take any action. The intelligence issue feeds into the legal analysis of the Iranian question, for if the administration understands U.S. intelligence agencies as saying that there is still a great deal of time before Iran completes an operational atomic weapon, then the Iranian threat is not imminent and the chances that Obama will take action are not very great.
Can the U.S. Act Unilaterally?
The second legal argument against the doctrine of preventive operations from the Bush era is that they were unilateral, without the backing of the UN Security Council. The Obama administration’s official National Security Strategy allows for American unilateralism. But in reality the situation is more complicated, as in the case of Libya, in which the U.S. still relied on a UN mandate with NATO support. Critics of the administration noted that President Obama delayed the air war against Gaddafi’s forces until he had UN Security Council approval.9
Legal scholars who are now grappling with ways to advance the legitimacy of preventive strikes often insist that the evidence against rogue states be first presented to the UN Security Council, despite the well- known delays that the UN machinery has demonstrated in repeated crises. It should be stated that historically, past U.S. governments have used force without any UN authorization: from Kennedy’s naval quarantine around Cuba to Reagan’s air attack on Libya to Clinton’s missile strikes on the El-Shifa chemical plant in Sudan which was suspected of being a weapons factory. The same is true of NATO’s war against Serbia over Kosovo. None of these attacks, moreover, involved an imminent threat of attack on the U.S.
At this point, the Obama administration is not so willing to shed the requirement of UN authorization. During testimony before the Senate Armed Services Committee on March 7, Secretary of Defense Panetta stated that in the case of Syria, before the U.S. could get militarily involved, “our goal would be to seek international permission.” Certainly, the Syrian people who are under siege would prefer not to have their rescue dependent on the goodwill of Russia and China in the Security Council. By the same reasoning, would effective action against Iran be made dependent on an international consensus at the UN that does not even exist on sanctions?
Undoubtedly, the Obama administration’s declarations indicate that it has shed much of its reluctance to consider preventive military action, especially in the context of counter-terrorist operations, even if the threat is not imminent. For example, as Peter Berkowitz of Stanford University points out, John Brennnan, Obama’s counterterrorism adviser, stated during a September 2011 speech at Harvard Law School that “a more flexible understanding of ‘imminence'” was needed.10 Attorney General Eric Holder made the same point in a major speech on March 5, 2012, with respect to targeted strikes against individual terrorists.11 These remarks were significant, given the strong opposition that used to be expressed against any military action against non-imminent threats, such as preventive strikes.
Looking at the administration’s rhetoric, it appears that U.S. military policy is clearly undergoing a transition. But how far it has come is difficult to establish. The rhetorical shifts that are evident are noteworthy, for they reflect a change of attitude. But the new approach being sounded comes up against strong predispositions against any preventive military operations in the specific context of nuclear proliferation, in the aftermath of the Iraq War.12 In practice, it appears that even if it becomes clear that sanctions have had no impact on Iranian decision-making with respect to nuclear weapons, it will still take a very long time before the decision is taken to use U.S. force to halt Iran.
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1 Text of President Barak Obama’s Speech at Aipac, Associated Press, March 4, 2012.
2 Harold Hongju Koh, “On American Exceptionalism,” Stanford Law Review, Volume 55, May 2003, p. 1523. Koh objected to the Bush administration’s reliance on previous UN Security Council resolutions, as opposed to a new resolution, but he said at least that this argument was better that “unmoored claims of ‘preemptive self-defense,'” which he clearly did not accept.
3 Ian Brownlie, Principles of Public International Law (Oxford: Oxford University Press, 2008), p. 733.
4 In December 1837 there was an armed revolt in Canada against the British, during which the insurgents were receiving supplies on the American side of the border. The Caroline was a U.S. steamer that was being used for reinforcing the insurgents. A British-commanded team boarded the ship, setting it on fire, and casting it adrift until it went over Niagara Falls. In Britain, Lord Palmerston regarded it as an act of self-defense. Secretary of State Daniel Webster rejected the British claim, but argued in a letter to the British minister in Washington in 1841 that there were conditions under which the use of force would have been justified. This became part of customary international law.
5 Cited by Ambassador Yehuda Blum, “Israel’s Statement Before the Security Council Concerning Its Actions Regarding the Osirak Reactor, June 12 1981,” in John Norton Moore (ed.), The Arab-Israeli Conflict: Volume IV: The Difficult Search for Peace (1975-1988) (Princeton: Princeton University Press, 1991), p. 993.
6 Anthony Clark Arend, “International Law and the Preemptive Use of Force,” Washington Quarterly, Spring 2003, p. 96.
7 Michael W. Doyle, Harold H. Koh, Joanne J. Myers, “Striking First: Preemption and Prevention in International Conflict,” Public Affairs Program, Carnegie Council, September 23, 2008.
8 David E. Sanger, “On Iran, Questions of Detection and Response Divide U.S. and Israel,” New York Times, March 6, 2012.
9 John Yoo, “An Unavoidable Challenge,” National Review, January 3, 2012.
10 Peter Berkowitz, “Would a Military Strike Against Iran Be Legal?” Real Clear Politics, March 2, 2012.
11 U.S. Department of Justice, Attorney General Eric Holder Speaks at Northwestern University School of Law, Chicago, March 5, 2012.
12 See comment by Harold Koh in Michael W. Doyle, Striking First: Preemption and Prevention in International Conflict (Princeton: Princeton University Press, 2008), p. 101.