There is no justification in international law for pre-emptive strikes of any nature, writes Perihan Abou Zeid* During President Bush's recent visit to the Middle East, including to Egypt, questions were raised as to whether there is a hidden American agenda of striking Iran over its nuclear programme in the upcoming months. Bush's famous dance with Arab kings and princes while holding an Arab sword did little to assuage those fears. But while some seem focussed only on the "if" and "when", it must be remembered that there is also a question of legitimacy, despite the cover allegedly provided by the "war on terror". International law is mainly concerned with maintaining peace and security and state sovereignty within the international community. It is commonly agreed that international law affirms the prohibition of the use of force. The UN Charter is considered the primary instrument in regulating the use of force in international relations. In its first article the Charter states that its primary objective is to "maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace." The Charter is clear in Article 2(4) that all states shall refrain 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 UN. Nonetheless, the charter made two exceptions to the general rule of not resorting to the use of force in international relations. The first exception is stated in Article 42 allowing the UN Security Council to resort to use of force for the purpose of maintaining or restoring international peace and security where non-forcible measures would be, or have proven to be, inadequate. Accordingly, the absence of such authorisation renders the use of force illegitimate. Certainly individual states do not have discretion to decide when peace is threatened. The second exception relates to self-defence as stated in Article 51. The article ensures that nothing in the charter impairs the inherent right of individual or collective self-defence if an armed attack occurs against a UN member state, until the Security Council has taken measures necessary to maintain international peace and security. It is worthy of noting that most international law scholars agree that the term "armed attack" in Article 51 limits the justification of self-defence under the charter, outlawing pre-emptive or anticipatory military strikes. Accordingly, for a state to invoke self- defence as a justification of the use of force it must first meet the following prerequisites: be victim of a considerable armed attack; the armed attack must either be ongoing or that there is obvious and reasonable evidence that it will be continued; the state that the force will be used against should be responsible for the ongoing or likely to be continued armed attack; and the force used in self-defence must be necessary and proportional. These basic rules, however, have often been violated by major states, especially the US. For example, in the 1986 Nicaragua v the United States of America case, the US bombed Nicaragua on behalf of El Salvador after claiming it was assisting Salvadorian rebels against the Salvadorian government. The US justified its actions on the basis of collective self-defence. Yet Nicaragua rejected its justification and argued that its assistance to Salvadorian rebels did not constitute an armed attack. In that case the International Court of Justice (ICJ) deemed that individual self-defence by a state requires a prior "armed attack", and concluded that Nicaragua's assistance to Salvadorian rebels did not constitute an armed attack. Accordingly, the US was held in violation of international law. In 1981, Israel bombed the Iraqi nuclear power reactor Osirak when it was still under construction. Then Prime Minister Menachem Begin justified the strike on the basis that Israeli intelligence found that the reactor would start operations in July 1981. Iraq was a state party to the Nuclear Non-Proliferation Treaty (NPT), its nuclear programme inspected regularly by the International Atomic Energy Agency (IAEA). After the bombing of Osirak the IAEA issued a report declaring that it did not find any evidence that Iraq's peaceful nuclear programme would be diverted towards nuclear weapons production. The IAEA revealed also that it had intended to appoint a full-time inspector at the site once it started operations that would have made the production of plutonium -- necessary for military applications -- virtually impossible. Israel justified its attack asserting that its main objective was to impede the development of any nuclear weapons programme. However, UN Security Council Resolution 487 rejected Israeli's justification and considered its actions a "clear violation of... the norms of international conduct... and a serious threat to the entire safeguards regime" of both the IAEA and the NPT. Even the US permanent representative to the UN noted that, "the means Israel chose to quiet its fears about the purposes of Iraq's nuclear programme have hurt, and not helped, the peace and security of the area... Israeli action has damaged the regional confidence that is essential for the peace process to go forward." It is important here to note that though it is commonly agreed among international law scholars that currently non-nuclear states possessing or developing nuclear weapons is a violation of the NPT, no legal foundation would be thereby created for the use of force in the name of self-defence. In fact, even the Security Council cannot give authorisation for undertaking a pre-emptive strike on the nuclear sites of a member state. Such authorisation would be deemed illegitimate since the Security Council is bound by the principles of necessity and proportionality. Though the letter of international law prohibits the use of force justified as self-defence absent an armed attack that reasonably could be deemed sustained, the so-called "war on terror" has seen several grave violations of this principle. When the US, the UK and Australia launched their war of aggression on Iraq in March 2003, self-defence was used as justification. Mere allegations of the existence of weapons of mass destruction were considered to be sufficient -- or at least sufficient for other states to remain silent. Given repeated affirmations from Iran's officials that its nuclear programme is entirely peaceful, there is no justification for resort to use of force against Iran for its alleged nuclear activities. In February 2006, the director general of the IAEA issued a report regarding Iran's nuclear programme. The report announced that Iran's uranium was enriched only to 3.6 per cent, which is suitable only for producing electrical power whereas producing weapons requires almost 90 per cent enrichment. Another report issued in 2006 by the Centre for Non- Proliferation Studies numbered the hurdles that would face Iran's nuclear programme if it aimed to convert into an armaments programme. For example, limited uranium mining and the ineffective conversion of yellowcake (concentrated uranium oxide) to uranium hexafluoride gas to supply centrifuges are among the main hurdles. In his testimony before the US Senate Intelligence Committee in February 2006, John Negroponte, director of national intelligence, testified that Iran is "judged as probably having neither a nuclear weapon nor the necessary fissile material for a weapon." More recently US National Security Advisor Stephen Hadley declared on 3 December 2007 that Iran halted its nuclear weapons programme in 2003. This statement represented the consensus of 16 American spy agencies. Although, the report stated that Iran is still producing enriched uranium, this alone does not allow it to produce nuclear weapons before the middle of the next decade. Director general of the IAEA, Mohamed El-Baradei, has affirmed on many occasions the peaceful nature of Iran's nuclear programme. The point, however, is that even if Iran converted its peaceful nuclear programme to a military programme, international law would not justify the launching of a pre-emptive strike in the name of self-defence. Another fact to be born in mind is the decentralisation of Iranian nuclear sites, which are scattered throughout the country in relatively densely populated areas; this aside from most being buried deep underground (Arak, Bushehr, Isfahan, Lashkar Abad, Natanz, Saghand in the Yazd Province, and Tehran). Some military experts suggest that in order to halt Isfahan's nuclear operations a 1.2- megaton B83 earth-penetrating bomb would be needed. Estimates suggest casualties would be not less than three million people in almost 48 hours! In fact, that number is the lowest estimation, since Iran is expected to respond to any strikes by attacking American military bases in neighbouring gulf countries. On more than one occasion, though not recently, Iranian officials warned that Iran would not hesitate to respond to the source of any attack. Meanwhile the stance of Gulf countries regarding the Iranian crisis is clear: that they oppose any US attack. That clarity may be because they believe Iran does not pose a threat to their national security, or because Iran does pose a threat and is capable of responding harshly to any attacks. Some commentators also factor in that the next US president may try to secure a quick yet careful American withdrawal from Iraq, leaving gulf countries financially responsible for their largely destroyed northern neighbour. In all events, the key question is whether a sword dancing Bush will launch a final misadventure before exiting the Oval Office, or whether the legal norms of international relations will prevail, preventing another illegal act of US aggression. * The writer is a PhD attorney specialised in international law.
