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Published online by Cambridge University Press: 09 March 2016
Iran’s pursuit of nuclear technology continues to place a major strain on US–Iranian relations, with many US decision makers still sceptical of Iran’s claims that its uranium-enrichment program is aimed only at providing fuel for civilian purposes, not at developing nuclear weapons capability. In spite of the diplomatic progress made to date, the conclusion of a comprehensive agreement resolving the issue remains elusive, with powerful elements in both states resistant to any compromise, and the United States’ key regional allies, Israel and Saudi Arabia, strongly opposed to the Obama administration’s decision to negotiate with the government of Hassan Rouhani. Consequently, a US attack on Iran in order to (at least) severely delay Iran’s nuclear program remains a distinct possibility. After outlining the causes of the current situation, and noting the extent to which both Iran and the United States have disregarded their obligations under the Treaty on the Non-Proliferation of Nuclear Weapons, this article considers the lawfulness of a potential US military strike against Iran, examining in detail relevant international legal rules governing the use of force. The conclusion reached is that such a preventive use of force would be — and should remain — illegal and that adherence to their respective legal obligations still offers the best way forward for both countries.
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6 See, for example, United States, National Intelligence Council, National Intelligence Estimate — Iran: Nuclear Intentions and Capabilities (Washington, DC: National Intelligence Council, November 2007), online: <http://www.dni.gov/files/documents/Newsroom/Reports%20and%20Pubs/20071203_release.pdf> [2007 US National Intelligence Estimate]; Mazzetti, Mark, “US Says Iran Ended Atomic Arms Work,” New York Times (3 December 2007), online: New York Times <http://www.nytimes.com/2007/12/03/world/middleeast/03cnd-iran.htmP_ r=2&hp&oref=slogin&> Google Scholar; Albright, David and Brannan, Paul, “US Intelligence Estimates and the Iranian Nuclear Program” (9 April 2012), online: Institute for Science and International Security <http://isis-online.org/uploads/isis-reports/documents/US_Intelligence_Estimates_and_the_Iranian_Nuclear_Program_9April2012.pdf> Google Scholar; Zakaria, Tabassum and Hosenball, Mark, “Special Report: Intel Shows Iran Nuclear Threat Not Imminent,” Reuters (23 March 2012), online: Reuters <http://www.reuters.com/article/2012/03/23/us-iran-usa-nuclear-idUSBRE82M0G020120323>.Google Scholar
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11 That is, the negotiations between Iran and the five permanent members of the Security Council, being the United States, Russia, China, France, and the UK. They are joined by Germany, as well as the High Representative for Foreign Affairs and Security Policy for the European Union (EU). See Joint Plan of Action (24 November 2013), online: EU <http://eeas.europa.eu/statements/docs/2013/131124_03_en.pdf>.
12 Under the Joint Plan of Action, supra note 11, Iran has agreed to curtail certain of its uranium enrichment activities, not to commission the Arak heavy water reactor and to allow greater access to IAEA inspectors. In return, it has been granted limited sanctions relief, including access to around US $4 billion in hitherto frozen overseas bank accounts. The deadline for reaching a comprehensive agreement on Iran’s nuclear program — originally set to expire on 20 July 2014 — has been extended by a further four months, to 24 November 2014.
13 Blomfield, Adrian, “Assassination of Iranian Nuclear Scientist Is a Familiar Story,” Daily Telegraph (11 January 2012), online: The Telegraph <http://www.telegraph.co.uk/news/worldnews/middleeast/iran/9007055/Assassination-of-Iranian-nuclear-scientist-is-a-familiar-story.html> Google Scholar; Vick, Karl and Klein, Aaron J, “Who Assassinated an Iranian Nuclear Scientist? Israel Isn’t Telling,” Time (13 January 2012) online: Time <http://content.time.com/time/world/article/0,8599,2104372,00.html> Google Scholar; Patrikarakos, supra note 8 at 269–70.
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27 Simpson, supra note 25 at 30–32; Greenblum, supra note 21 at 69; Oborne and Morrison, supra note 3 at 95–96.
28 Dunn, supra note 3 at 25–26; Richelson, supra note 4 at 503–5; Simpson supra note 25 at 11; Greenblum, supra note 21 at 62–63.
29 That is, the National Council of Resistance of Iran, a coalition comprising various Iranian opposition groups, the most prominent of which, Mojahideen-e-Khalq, was previously viewed as a terrorist organization by the United States and numerous European countries. See Pollack, supra note 22 at 361; Ansari, supra note 21 at 198; Müller, supra note 21 at 7.
30 Greenblum, supra note 21 at 62.
31 Müller, supra note 21 at 8.
32 Noyes, James, “Iran’s Nuclear Program: Impact on the Security of the GCC” in Emirates Center for Strategic Studies and Research, ed, Iran’s Nuclear Program, Realities and Repercussions (Abu Dhabi: Emirates Center for Strategic Studies and Research, 2006) 63 at 70–71.Google Scholar
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34 Simpson, supra note 25 at 11; Abrahamian, supra note 20 at 139.
35 Noyes, supra note 32 at 68; Chubin, supra note 21 at 11, 15.
36 Dunn, supra note 3 at 24; Chubin, supra note 21 at 14.
37 Bush, George W, “2002 State of the Union Address” (speech delivered to the US Congress, 29 January 2002), online: Washington Post <http://www.washingtonpost.com/wp-srv/onpolitics/transcripts/sou012902.htm>..>Google Scholar
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39 Noyes, supra note 32 at 66; Abrahamian, supra note 20 at 139; Patrikarakos, supra note 8 at 60.
40 Simpson, supra note 25 at 11; Dunn, supra note 3 at 36. Nagan, Winston P and Hammer, Craig, “The New Bush National Security Strategy and the Rule of Law” (2004) 22:3 Berkeley J Int’l L 375 at 433–34,Google Scholar make the same point in regard to Iraq’s interest in acquiring nuclear weapons. Although, as Parsi points out, Iran and Israel have in the past been prepared to co-operate to further mutual interests. Parsi, supra note 15 at 20–23.
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47 Lodgaard, supra note 43 at 115.
48 Such as denying the Holocaust or stating that Israel must be “wiped off” the map — although some claim the latter threat was never made and can be traced back to an incorrect translation. See, for example, Oborne and Morrison, supra note 3 at 79–80; Pollack, supra note 22 at 376.
49 Dunn, note supra 3 at 33; Perkovich, supra note 33 at 58–59; Greenblum, supra note 21 at 81–82.
50 Perkovich, supra note 33 at 58.
51 Kuppuswamy, supra note 43 at 149; Dunn, supra note 3 at 32; Noyes, supra note 32 at 75–77; Pollack, supra note 22 at 377; Müller, supra note 21 at 31; Chubin, supra note 21 at 129.
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55 Lodgaard, supra note 43 at 115–16; Chubin, supra note 21 at 115–17, 125; Oborne and Morrison, supra note 3 at 20, 90.
56 See Chubin, supra note 21 at 115–17 (quoting former US Secretary of State Condoleezza Rice: “No one wants to see a Middle East that is dominated by an Iranian hegemony … Iran is pursuing policies in the Middle East that are, if not 180, 170 degrees counter to the kind of Middle East that we would build”); Kuppuswamy, supra note 43 at 150. See also Dunn, supra note 3 at 25, 32.
57 Ansari, supra note 21 at 234. See also Chubin, supra note 21 at 115.
58 See, for example, The White House, National Security Strategy of the United States of America (May 2010), online: <http://www.whitehouse.gov/sites/default/files/rss_viewer/national_security_strategy.pdf> at 24 [NSS 2010].
59 Pleitgen, Frederik and Cohen, Tom, “‘War-Weary’ Obama Says Syria Chemical Attack Requires Response,” CNN (30 August 2013), online: CNN <http://edition.cnn.com/2013/08/30/world/europe/syria-civil-war/> Google Scholar; “U.S. Secretary of State Kerry Makes Statement on Syria,” Reuters (30 August 2013), online: Reuters <http://www.reuters.com/article/2013/08/30/us-syria-crisis-kerry-transcript-idUSBRE97T0RR20130830>; “Obama Says US Has ’Obligation’ to Act on Syria, Cites Intel Findings,” Fox News (30 August 2013), online: Fox News <http://www.foxnews.com/politics/2013/08/30/kerry-says-clear-evidence-chemical-weapons-used-in-syria-as-intelligence/>.
60 IAEA, Information Circular: Text of the Agreement between Iran and the IAEA for the Application of Safeguards in Connection with the Treaty on the Non-Proliferation of Nuclear Weapons, Doc INFCIRC/214 (15 May 1974), online: IAEA <http://www.iaea.org/Publications/Documents/Infcircs/Others/infcirc214.pdf> [Safeguards Agreement].
61 Model Protocol Additional to the Agreement(s) between State(s) and the International Atomic Energy Agency for the Application of Safeguards, Doc INFCIRC540 (Corr) (May 1997), online: IAEA <http://www.iaea.org/Publications/Documents/Infcircs/1997/infcirc540c.pdf>. To date, 124 states have concluded additional protocols with the IAEA that are now in force. See IAEA, Safeguards and Verifications: Status of Additional Protocols (as of 6 August 2014), online: IAEA <http://www.iaea.org/safeguards/protocol.html>.
62 See, for example, IAEA, Implementation of the NPT Safeguards Agreement in the Islamic Republic of Iran, Report of 28 April 2006, Doc GOV/2006/27 (2006) at 7, online: IAEA <http://www.iaea.org/Publications/Documents/Board/2006/gov2006-27.pdf>.
63 Statute ofthe International Atomic Energy Agency, 276 UNTS 3 (in force 29 July 1957), online: IAEA <http://www.iaea.org/About/statute.html>. This step was possible under Article 19 of the Safeguards Agreement, supra note 60; IAEA, Implementation ofthe NPT Safeguards Agreement in the Islamic Republic of Iran, Resolution of 4 February 2006, Doc GOV/2006/14 (2006) at 2, paras 2, 4, online: IAEA <http://www.iaea.org/Publications/Documents/Board/2006/gov2006-14.pdf>.
64 IAEA, Implementation of the NPT Safeguards Agreement and Relevant Provisions of United Nations Security Council Resolutions in the Islamic Republic of Iran, Resolution of 13 September 2012, Doc GOV/2012/50 (2012) at paras 1–3, online: IAEA <http://www.iaea.org/Publications/Documents/Board/2012/gov2012-50.pdf>.
65 IAEA, Implementation of the NPT Safeguards Agreement and Relevant Provisions of Security Council Resolutions in the Islamic Republic of Iran, Report of 21 February 2013, Doc GOV/2013/6 (2013) at paras 62, 65, online: IAEA <http://www.iaea.org/Publications/Documents/Board/2013/gov2013-6.pdf>.
66 UN Security Council (SC) Resolution 1696, UNSCOR, 2006, UN Doc S/ RES/1696 (2006); SC Resolution 1737, UNSCOR, 2007, UN Doc S/RES/1737 (2007); SC Resolution 1747, UNSCOR, 2007, UN Doc S/RES/1747 (2007); SC Resolution 1803, UNSCOR, 2008, UN Doc S/RES/1803 (2008); SC Resolution 1835, UNSCOR, 2009, UN Doc S/RES/1835 (2009); SC Resolution 1929, UNSCOR, 2010, UN Doc S/RES/1929 (2010). At the time of writing, there have been four further UNSC resolutions renewing the mandate of the Iran Sanctions Committee: SC Resolution 1984, UNSCOR, 2011, UN Doc S/RES/1984 (2011); SC Resolution 2049, UNSCOR, 2012, UN Doc S/RES/2049 (2012) ; SC Resolution 2105, UNSCOR, 2013, UN Doc S/RES/2105 (2013); and SC Resolution 2159, UNSCOR, 2014, UN Doc S/RES/2159 (2014).
67 Charter of the United Nations, 26 June 1945, Can TS 1945 No 7 (in force 24 October 1945), art 41 [UN Charter].
68 EC, Council Regulation (EU) 264/2012 of 23 March 2012 amending Regulation (EU) No 359/2011 Concerning Restrictive Measures Directed against Certain Persons, Entities and Bodies in View ofthe Situation in Iran,  OJ, L87/26; EC, Council Regulation (EU) No 267/2012 of 23 March 2012 Concerning Restrictive Measures against Iran and Repealing Regulation (EU) No 961/2010,  OJ L88/1.
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71 The International Court of Justice (ICJ) has reaffirmed that Article VI of the NPT imposes an international obligation. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion,  ICJ Rep 226 at paras 102–3, 105 (F). See also Moore, Mike, “Can the Nuclear Powers Continue to Have It Both Ways?” (1997) 4 Brown J World Affairs 83 at 86–87.Google Scholar
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73 Comprehensive Nuclear-Test-Ban Treaty, UN Doc A/50/1027 (1996) (not yet in force). The US Senate rejected ratification in 1999. See Graham, supra note 45 at 14; Nagan and Hammer, supra note 40 at 400, 402.
74 “Remarks by President Barack Obama” (speech delivered at Hradcany Square, Prague, Czech Republic, 5 April 2009), online: White House: <http://www.whitehouse.gov/the_press_office/Remarks-By-President-Barack-Obama-In-Prague-As-Delivered>.
75 Stockholm International Peace Research Institute, “Nuclear Force Reductions and Modernizations Continue; Drop in Peacekeeping Troops; No Progress in Cluster Munitions Control—New SIPRI Yearbook out Now,” Press Release (3 June 2013); “Nuclear Forces Reduced While Modernizations Continue, says SIPRI,” Press Release (16 June 2014) online: Stockholm International Peace Research Institute <http://www.sipri.org/media/pressreleases/2013/YBlaunch_2013>; <http://www.sipri.org/media/pressreleases/2014/nuclear_May_2014>.
76 Falk, supra note 42 at 73–74, 76–77; Lodgaard, supra note 43 at 113.
77 Joint Statement by President George W Bush and Prime Minister Manmohan Singh, White House Press Release, Washington, DC (18 July 2005), online: US Dept of State Archive <http://2001-2009.state.gov/p/sca/rls/pr/2005/49763.htm>. The name for such agreements derives from section 123 of the US Atomic Energy Act of 1954, Pub L 83–703, which governs co-operation between the United States and other states on nuclear matters.
78 United States-India Nuclear Cooperation Approval and Non-proliferation Enhancement Act, Pub L 110–369, 110th Cong (8 October 2008).
79 It should be noted that France almost immediately followed suit, concluding an agreement on nuclear co-operation with India in 2008. See “Text of Indo-France Nuclear Deal,” Times of India (30 September 2008), online: Times of India <http://timesofindia.indiatimes.com/india/Text-of-Indo-France-nuclear-deal/articleshow/3545557.cms>; “India and France in Nuclear Deal,” BBC News (30 September 2008), online: BBC <http://news.bbc.co.uk/1/hi/7644377.stm>.
80 Agreement between the Government of India and the International Atomic Energy Agency for the Application of Safeguards to Civilian Nuclear Facilities, Doc INFCIRC754 (29 May 2009) (in force 11 May 2009), online: IAEA <http://www.iaea.org/Pub-lications/Documents/Infcircs/2009/infcirc754.pdf>.
81 Kuppuswamy, supra note 43 at 145; Oborne and Morrison, supra note 3 at 36–37. See also “India Joins World Nuclear Club amid Warnings over Spread of Weapons,” The Times (8 September, 2008) 33, reporting on the decision of the Nuclear Suppliers’ Group (founded to combat proliferation, and made up of forty-five states that supply nuclear technology) to allow nuclear technology exports to India despite India not being a state party to the NPT.
82 See SC Resolution 487, UNSCOR, 1981, UN Doc S/RES/487 (1981) at operative para 5.
83 See Hersh, supra note 54 at 225–40, 262–83 (describing US support notwithstanding its awareness of Israeli nuclear efforts from the 1950s onwards). See also Nagan and Hammer, supra note 40 at 434 (arguing that a “single nuclear power in the Middle East” is a “major security threat for all states and peoples in the region”); Falk, supra note 42 at 77; Kuppuswamy, supra note 43 at 150; Aly, supra note 43 at 153–54; Noyes, supra note 32 at 74–75; Lodgaard, supra note 43 at 113, 138–39; Oborne and Morrison, supra note 3 at 32–34; Patrikarakos, supra note 8 at 152–53.
84 See Centre for Arms Control and Non-Proliferation, India-Pakistan Sanctions Legislation Factsheet, online: <http://armscontrolcenter.org/issues/nonproliferation/articles/india_pakistan_sanctions/#>.
85 Whereby claimants alleging treaty violations by another party must themselves not be at fault. See Diversion of Water from the River Meuse (Netherlands v Belgium) (1937), PCIJ (Ser A/B) No 70 at 24–25.
86 White House, National Security Strategy of the United States of America (September 2002), online: <http://www.state.gov/documents/organization/63562.pdf> at 14 [NSS 2002].
87 Ibid at 15.
88 NSS 2006, supra note 38 at 2, 20. President Obama refers to “outliers” rather than “rogue states.” “’Outliers Like Iran and North Korea’ Are Exceptions to New Policy on Nukes, Obama Says,” NY Daily News (6 April 2010), online: NY Daily News <http://www.nydailynews.com/news/politics/outliers-iran-north-korea-exceptions-new-policy-nukes-obama-article-1.163742>.
89 NSS 2010, supra note 58.
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92 An 1837 incident in which the American ship Caroline was attacked by British troops because of its supposed use in aiding rebels seeking to overthrow British rule in Canada.
93 Letter from Daniel Webster to Lord Ashburton (27 July 1842), online: Yale Law School, the Avalon Project <http://avalon.law.yale.edu/19th_century/br-1842d.asp#web1>.
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100 “The United States has long maintained the option of preemptive actions to counter a sufficient threat to our national security. The greater the threat, the greater is the risk of inaction — and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place ofthe enemy’s attack!” Ibid [emphasis added].
101 See, for example, Collins, Jeff, “The Case for Pre-emption (Not Prevention) in Public International Law,” Globalized World Post (23 January 2012), online: Globalized World Post <http://thegwpost.com/2012/01/23/the-case-for-pre-emption-not-prevention-in-public-international-law/>.Google Scholar Mulcahy and Mahony, supra note 97 at 237, also seem to use “anticipatory” as an all-encompassing term that can include the preventive use of force: “[I]t should not be forgotten that the use of anticipatory self-defence where there is an emerging threat is permissible under the Charter regime where the Security Council gives its consent.”
102 Glennon, Michael J, “The UN Security Council in a Unipolar World” (2003–04) 44 Va J Int’l L 91 at 98–100.Google Scholar A more nuanced version of this argument can be found in Glennon, Michael J, “The Rise and Fall of the UN Charter’s Use of Force Rules” (2003–04) 27 Hastings Int’l & Comp L Rev 497.Google Scholar
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116 See text accompanying note 175 in this article.
117 Sloss, supra note 96 at 50–53.
118 NSS 2002, supra note 86 at 15.
119 Ibid, preamble.
120 Cited in Bethlehem, Daniel, “Self-Defense against an Imminent or Actual Armed Attack by Nonstate Actors” (2012) 106 AJIL 770 at 771.Google Scholar
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122 Cited in ibid.
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127 Levy, supra note 97 at 1.
128 On the possibility of US-engineered “regime change” in Iran, whether by military or non-military means, see Abrams, Elliott, “Regime Change” in Blackwill, Robert D, ed, Iran: The Nuclear Challenge (New York: Council on Foreign Relations, 2012) 43.Google Scholar
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131 Bowett, Derek William, Self-Defence in International Law (Manchester: Manchester University Press, 1958) at 184–85.Google Scholar
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133 Ibid at 182–84, 187–93.
134 See, for example, the argument to this effect by the then Lord Chancellor, Viscount Kilmuir, speaking in the House of Lords at the time of the Suez crisis in 1956. House of Lords, UK, Parliamentary Debates, vol 199, col 1243–1365 at 1351–52 (1 November 1956), online: <http://hansard.millbanksystems.com/lords/1956/nov/01/egypt>.
136 That is, use of force in individual or collective self-defence under the UN Charter, supra note 67, art 51, or as authorized by the Security Council acting under its Chapter VII powers.
137 Dinstein, supra note 95 at 185.
138 Bowett, supra note 131 at 184.
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141 Nicaragua, supra note 115 at para 195. See also DRC v Uganda, supra note 140 at paras 142–47; Oil Platforms (Islamic Republic of Iran v United States of America),  ICJ Rep 161 at para 51 [Iran v US].
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146 Beyerlin, supra note 114 at 219–21, 240.
147 See text accompanying notes 137–40 above.
148 Brownlie, , “The Use of Force in Self-Defence,” supra note 112 at 239–41,Google Scholar pointing out that the right of self-defence had, between 1920 and 1945, become “vague” and that it therefore seemed highly unlikely that the UN Charter’s framers would have attempted to preserve such an indeterminate customary right. See also Brownlie, , International Law, supra note 112 at 269–75Google Scholar; Beyerlin, supra note 114 at 221–23, 230–31; Krift, supra note 112 at 52.
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153 It is worth noting, however, that there is no great difference in the practical application of the law between those who claim a right of anticipatory self-de-fence in the case of a truly imminent attack and the view supported here. As some have argued, if an aggressor state takes “irrevocable” steps towards launching an attack, that attack must be seen as “occurring.” “Interceptive” self-defence against an attack that has obviously already begun is lawful under Article 51 of the Charter. See, for example, Dinstein, supra note 95 at 185, 187–92; Gazzini, Tarcisio, The Changing Rules on the Use of Force in International Law (Manchester, UK: Manchester University Press, 2005) at 152–53.Google Scholar
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157 Reisman and Armstrong, supra note 149 at 527; Gray, supra note 142 at 131–32. However, see Rothwell, supra note 96 at 343–45, arguing that the US raid on Libya in 1986 was a case of anticipatory self-defence, although acknowledging that this characterization is “clouded due to the ongoing tensions” between the two countries. In fact, Libyan involvement in the terrorist attack on a Berlin discotheque is generally seen as the main reason for the subsequent US attack, so that the raid cannot serve as a classic example of anticipatory self-defence.
159 Gray, supra note 142 at 131, mentioning a fourth case, the Iraqi attack on Iran in 1980, which Iraq originally characterized as “preventive” self-defence. However, as Gray points out, Iraq quickly changed its position and justified its actions on the basis of a prior attack by Iran.
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163 Sapiro, supra note 98 at 601; Gray, supra note 142 at 130–31; Gazzini, supra note 153 at 150.
164 See Resolution of the Council of the Organization of American States (22 October 1962), (1962) 47 Dep’t St Bull 722, invoking Article 6 of the Inter-American Treaty of Reciprocal Assistance, 21 UNTS 77 (in force 3 December 1948), which does not require an “armed attack.” See further Wedgwood, supra note 123 at 584; Sapiro, supra note 98 at 601; Gray, supra note 142 at 131; Nydell, supra note 123 at 484–85, (pointing out that the US government explicitly rejected the idea ofjustifying its actions on the basis of self-defence because no “armed attack” had occurred and it did not want to set a precedent); Pierson, supra note 161 at 164; Roberts, supra note 45 at 528; Gazzini, supra note 153 at 149–50.
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167 Arab and Soviet bloc states condemned the Israeli attack as “aggression.” See Paul, supra note 95 at 466. But see Gill, supra note 96 at 136 (claiming an “overwhelming majority of states” supported the Israeli actions — a rather surprising assessment given that a Yugoslav draft resolution calling for Israel’s immediate and unconditional withdrawal garnered a deeply divided vote of 53: 46: 20 in the UN General Assembly). See also Gazzini, supra note 153 at 150 (describing international reaction as “consistently negative”).
168 D’Amato, , “Israel’s Air Strike,” supra note 108 at 587–88Google Scholar; Sapiro, supra note 98 at 601; Gray, supra note 142 at 133; Pogany, supra note 96 at 73; Silverberg, supra note 123 at 60.
169 SC Resolution 487, supra note 82.
170 Paul, supra note 95 at 467–68; Gill, supra note 96 at 140–41; Pogany, supra note 96 at 73–74 (interpreting the statements of the United States, the UK, Sierra Leone, and Niger as — at least — implicitly accepting the legality of anticipatory self-defence); Henderson, supra note 41 at n 41. See also Pierson, supra note 161 at 167–68 (while acknowledging there was no consensus within the UN Security Council on the legality of anticipatory self-defence, somewhat paradoxically concluding that this demonstrated worldwide support).
171 Quigley, supra note 162 at 441; Gray, supra note 142 at 133; Pogany, supra note 96 at 74 (naming Uganda, Algeria, Brazil, Spain, Ireland, Syria, Guyana, Mexico, and the Soviet Union as explicitly rejecting the notion of anticipatory self-defence during the UN Security Council debate).
172 See Gray, supra note 142 at 130 (stating that the “vast majority of states” rejects the concept of anticipatory self-defence).
173 Guruli, supra note 96 at 120-22; Paul, supra note 95 at 469 (describing these views); Pierson, supra note 161 at 177.
174 Gray, supra note 142 at 134; Franck, Thomas M, “What Happens Now? The United Nations after Iraq” (2003) 97 AJIL 607 at 620.CrossRefGoogle Scholar See, for example, Guruli, supra note 96 at 120–22 (claiming that the invasion of Iraq in 2003 led to new norms “emerging,” despite acknowledging that the invasion was extremely controversial).
175 Yearbook of the United Nations 1981 (New York: United Nations Office of Public Information, 1981) at 277.
176 See Armed Israeli Aggression against the Iraqi Nuclear Installations and Its Grave Consequences for the Established International System Concerning the Peaceful Uses of Nuclear Energy, the Non-Proliferation of Nuclear Weapons and International Peace and Security, GA Res 36/27, UNGAOR, 36th Sess, UN Doc A/RES/36/27, (1981), condemning the Israeli actions (only the United States and Israel opposed the resolution). See also Paul, supra note 95 at 468; Beres, Louis René and Tsidddon-Chatto, Yoash, “Reconsidering Israel’s Destruction of Iraq’s Osiraq Nuclear Reactor” (1995) 9 Temp Int’l & Comp LJ 437 at 437 Google Scholar (who, however, go on to demand a re-evaluation); Beres, supra note 52 at 203; Gill, supra note 96 at 140; Silverberg, supra note 123 at 60; Mallison and Mallison, supra note 96 at 441; Roberts, supra note 45 at 530; Byers, Michael, War Law: International Law and Armed Conflict (London: Atlantic Books, 2005) at 73.Google Scholar
177 SC Resolution 487, supra note 82.
178 Yearbook of the United Nations 1981, supra note 175 at 276.
179 Paul, supra note 95 at 467–68; Graham, supra note 45 at 11 (quoting former British Prime Minister Margaret Thatcher as saying: “Armed attack in such circumstances cannot be justified. It represents a grave breach of international law.”)
180 Yearbook of the United Nations 1981, supra note 175 at 277.
181 Rademaker, supra note 160 at 462–63.
182 Malone, supra note 72 at 816; Rademaker, supra note 160 at 462–65; Paul, supra note 95 at 474; Graham, supra note 45 at 13; Franck, supra note 174 at 611; Gray, supra note 142 at 182; Fidler, David P, “International Law and Weapons of Mass Destruction: End of the Arms Control Approach?” (2004) 14 Duke J Comp & Int’l L 39 at 73 Google Scholar; Rothwell, supra note 96 at 349; Henderson, supra note 41 at 14; Byers, supra note 176 at 79.
183 Letter dated 20 March 2003 from the Permanent Representative ofthe United Kingdom of Great Britain and Northern Ireland to the United Nations Addressed to the President of the Security Council, UN Doc S/2003/350 (2003); Simpson, Gerry, “The War in Iraq and International Law” (2005) 6 Melbourne J Int’l L 167 at 173–75Google Scholar; Fidler, supra note 182 at 73; Stromseth, supra note 123 at 629, n 4. For accounts questioning such a justification, see Paul, supra note 95 at 459–61; Franck, supra note 174 at 611–14; Rothwell, supra note 96 at 349; Henderson, supra note 41 at 10; Gazzini, supra note 153 at 221; Byers, supra note 176 at 79.
184 Letter dated 20 March 2003 from the Permanent Representative of the United States of America to the United Nations Addressed to the President of the Security Council, UN Doc S/2003/351 (2003) (relying almost exclusively on SC Resolutions 1441 and 678 as providing legal justification for the attack on Iraq, although the necessity to “defend” the United States and the “international community” is also mentioned in one sentence). See also Rademaker, supra note 160 at 464–65; Stromseth, supra note 123 at 629, n 4 (pointing out that the United States did not base its justification on “pre-emptive” self-defence before the Security Council); Gill, supra note 96 at 142; Gazzini, supra note 153 at 221, 232.
185 The then UN secretary-general, Kofi Annan, declared in 2004 that “[f]rom our point of view and the U.N. Charter point of view, it was illegal” (quoted in Crook, John R, “Contemporary Practice of the United States Relating to International Law” (2005) 99 AJIL 269 at 269).Google Scholar See also Dutch Military Mission to Iraq, Conclusions of the Committee of Inquiry on Iraq (21 April 2010) online <http://vorige. nrc.nl/multimedia/archive/00267/rapport_commissie_i_267285a.pdf> at paras 18, 20 of the English summary at 530–31. In a case before the German Federal Administrative Court (the Bundesverwaltungsgericht) in 2005, the court declared that there were grave doubts as to the legality, under international law, of the attack on Iraq by the United States and the UK, as both governments could not rely on authorization by the UN Security Council nor on Article 51. Bundesverwaltungsgericht, Urteil/Judgment (21 June 2005), BVerwG 2WD 12.04, online: <http://www.bverwg.de/entscheidungen/pdf/210605U2WD12.04.0.pdf>. See further “War Would Be Illegal” (letter from 16 leading legal academics in Britain), The Guardian (7 March 2003) 29, online: The Guardian <http://www.theguardian.com/politics/2003/mar/07/highereducation.iraq>); Bingham, Tom, The Rule of Law (London: Allen Lane, 2010) at 122–24Google Scholar; Sands, Phillipe, Lawless World (London: Penguin Books, 2006) at 174–204, 258–75Google Scholar; Franck, supra note 105 at 95, 97, 103; Neuhold, Hanspeter, “Law and Force in International Relations: European and American Positions” (2004) 64 ZaöRV 263 at 276–78Google Scholar; Simpson, supra note 183 at 172–78; Gray, supra note 142 at 135; Gazzini, supra note 153 at 221.
186 Wedgwood, supra note 123 at 577 (quoting from a “White House Information Sheet”). See also Gray, supra note 142 at 183 (referring to “about forty-five states [that] were willing to offer military or political support to the USA,” of which none justified its support on the basis of preventive self-defence).
187 Paul, supra note 95 at 472–73; Gray, supra note 142 at 181–83.
188 UN Charter, supra note 67, art 27(3). This attempt was based on UK Prime Minister Tony Blair’s rather novel and questionable theory of the “unreasonable veto,” whereby a veto cast in contravention of UN principles — presumably as understood by the UK — would be deemed invalid.
189 Reisman and Armstrong, supra note 149 at 537; Henderson, supra note 41 at 13.
190 See the evidence provided to the Chilcot Inquiry by Sir Michael Wood, legal adviser to the UK Foreign and Commonwealth Office from 1999–2006: Iraq Inquiry, Statement by Sir Michael Wood, 26 January 2010, at para 15, online: <http://www.iraqinquiry.org.uk/media/43477/wood-statement.pdf>. The deputy legal adviser to the UK Foreign and Commonwealth Office, Elizabeth Wilmshurst, resigned from her post because she believed the Iraq War to be a “crime of aggression,” as she explained in her evidence to the Chilcot Inquiry. See Iraq Inquiry, transcript of Elizabeth Wilmshurst (26 January 2010), online: Iraq Inquiry <http://www.iraqinquiry.org.uk/media/44211/20100126pm-wilmshurst-final.pdf>. In his draft advice of 14 January 2003, the UK attorney general (who, of course, later changed his mind), concluded “that resolution 1441 does not revive the authorisation to use of force [sic] contained in resolution 678 in the absence of a further decision by the Security Council.” Iraq Inquiry: Attorney General’s Draft Advice to Prime Minister at 5, online: <http://www.iraqinquiry.org.uk/media/46493/Goldsmith-draft-advice-14January2003.pdf>. See further Pidd, Helen and Mulholland, Hélène, “Lord Goldsmith Changed Legal View of Iraq War in Two Months, Says Adviser,” The Guardian (26 January 2010), online: The Guardian <http://www.guardian.co.uk/uk/2010/jan/26/iraq-war-illegal-chilcot-inquiry>.Google Scholar Similarly, in the United States, Richard Perle, chairman of the Defense Policy Board Advisory Committee in the Bush administration, declared, during a visit to the UK, that “in this case international law stood in the way of doing the right thing” as “international law … would have required us to leave Saddam Hussein alone.” See Burkeman, Oliver and Borger, Julian, “War Critics Astonished as US Hawk Admits Invasion Was Illegal,” The Guardian (20 November 2003) 4, online: The Guardian <http://www.theguardian.com/uk/2003/nov/20/usa.iraq1>.Google Scholar
191 Sanger, David E and Mazzetti, Mark, “Israel Struck Syrian Nuclear Project, Analysts Say,” New York Times (14 October 2007) online: New York Times <http://www.nytimes.com/2007/10/14/washington/14weapons.html?pagewanted=all&_r=0> Google Scholar; see also Follath, Erich and Stark, Holger, “The Story of ’Operation Orchard’: How Israel Destroyed Syria’s Al Kibar Nuclear Reactor,” Der Spiegel (2 November 2009) online: Spiegel Online International <http://www.spiegel.de/international/world/the-story-of-operation-orchard-how-israel-destroyed-syria-s-al-kibar-nuclear-reactor-a-658663.html>.Google Scholar
193 Oren, Amir, “IDF Lifts Censorship of Sept. 6 IAF Strike on Target inside Syria,” Haaretz (2 October 2007) online: Haaretz <http://www.haaretz.com/news/idf-lifts-censorship-of-sept-6-iaf-strike-on-target-inside-syria-1.230392>.Google Scholar
194 “Israel Condemned for Intrusion into Syria’s Territorial Air” (11 September 2007), online: KCNA <http://www.kcna.co.jp/item/2007/200709/news09/12.htm>.
195 “IAEA Chief Criticizes Israel over Syria Raid,” Reuters (28 October 2007), online: Reuters <http://www.reuters.com/article/2007/10/28/idUSN28442767>.
196 See Reisman and Armstrong, supra note 149 at 540–46 (claiming implicit acceptance of “pre-emptive self-defence” in the national security strategies and/ or statements made by officials ofJapan, the UK, China (only regarding Taiwan), France, India, Israel, North Korea, Russia, Taiwan (only regarding China), and Iran). However, most of the material quoted deals only with terrorist threats, casting doubt on the degree of support for “pre-emptive” self-defence directed against other states (a point conceded by the authors at 547). See also Raymond and Kegley, supra note 96 at 107 (presenting a similar list, albeit limited to statements made by individual politicians).
197 Guruli, supra note 96 at 119; Reisman and Armstrong, supra note 149 at 538–40 (also quoting former Australian Prime Minister John Howard as saying, in 2002, that “preemptive action is a self-evidently defensible and valid principle”). Gray, supra note 142 at 177; Henderson, supra note 41 at 10.
198 Henderson, Christian M, “The 2006 National Security Strategy of the United States: The Pre-emptive Use of Force and the Persistent Advocate” (2007) 15 Tulsa J Comp & IL 1 at 3, 16Google Scholar; Gray, supra note 142 at 177–78 (pointing out that the United States failed to gain the explicit approval of the North Atlantic Treaty Organization and of the UK regarding its doctrine); Shah, supra note 150 at 115.
199 Brownstein, Ronald, “America’s Sharp Turn Inward,” National Journal (5 September 2013), online: National Journal <http://www.nationaljournal.com/political-connections/america-s-sharp-turn-inward-20130905> Google Scholar; Mludzinski, Tom, “The British Aren’t Coming: Syria and the Legacy of Iraq,” Daily Telegraph (5 September 2013), online: The Telegraph <http://www.telegraph.co.uk/news/worldnews/middleeast/syria/10289553/The-British-arent-coming-Syria-and-the-legacy-of-Iraq.html> Google Scholar; Young, Marc, “Syria Crisis Exposes Rifts in U.S.-German Ties,” Yahoo News (12 September 2013), online: Yahoo News <http://news.yahoo.com/syria-crisis-exposes-rifts-in-us-german-ties--222905636.html>.Google Scholar
200 Paul, supra note 95 at 469; Greenblum, supra note 21 at 56–57, 103.
201 Roberts, supra note 45 at 484; Beres, supra note 52 at 201–03; Silverberg, supra note 123 at 86–87; Pierson, supra note 161 at 174–75; Newcomb, supra note 123 at 631–33; Greenblum, supra note 21 at 57.
202 Roberts, supra note 45 at 483, 517–18, 518–27.
203 Pierson, supra note 161 at 171; Beres and Tsidddon-Chatto, supra note 176 at 439; Beres, supra note 52 at 205–06; Roberts, supra note 45 at 497.
204 Newcomb, note supra 123 at 618; Beres and Tsiddon-Chatto, supra note 176 at 438 (“international law is not a suicide pact!”); Beres, supra note 52 at 188 (claiming that pre-emption is necessary to avoid “genocide”); Greenblum, supra note 21 at 111–12.
205 It should be noted that Ahmadinejad’s egregious pronouncements are by no means indicative of the thinking of all members of Iran’s political class. See Parsi, supra note 15 at 82; Parsi, Trita, Treacherous Alliance: The Secret Dealings of Israel, Iran, and the US (New Haven, CT: Yale University Press, 2007) at 9.Google Scholar
206 It has been suggested that the breakdown of the rule of law in international affairs may in fact be the intention of some of the concept’s proponents. See, for example, Gill, supra note 96 at 149; Quigley, supra note 162 at 444; Graham, supra note 45 at 11–12; Stromseth, supra note 123 at 636; Sapiro, supra note 98 at 603; Sloss, supra note 96 at 54; Reisman and Armstrong, supra note 149 at 548–50; Raymond and Kegley, supra note 96 at 106 (describing US President Eisenhower’s reaction to the suggestion of pre-empting the emerging Chinese nuclear capability as follows: “He wouldn’t even listen to anyone seriously that came in and talked about such a thing”); Mallison and Mallison, supra note 96 at 429, 444–46; Shah, supra note 150 at 112 (also pointing out the similarities of the theory to German arguments preceding the First World War); Henderson, supra note 41 at 22; Gazzini, supra note 153 at 221–22; Byers, supra note 176 at 76.
207 Paul, supra note 95 at 458, correctly describes such an argument as “not a doctrine of law” but “simply a unilateral assertion of power.”
208 Ibid at 458; Sapiro, supra note 98 at 599, 605; Gray, supra note 142 at 186 (adding the example of China/Taiwan); Shah, supra note 150 at 103–4; Henderson, supra note 198 at 28; Henderson, supra note 41 at 5; Byers, supra note 176 at 76.
209 A similar point is made by Nagan and Hammer, supra note 40 at 429 (observing that the United States may no longer be able to “pick and choose which rogue state to coddle and which to destroy” if the Bush doctrine were to be accepted universally).
210 Report by the Secretary-General’s High-level Panel on Threats, Challenges and Change: A More Secure World: Our Shared Responsibility, UNGAOR, 59th Sess, UN Doc A/59/565 (December 2004) at para 191, online: <http://www.unrol.org/files/gaA.59.565_En.pdf>.
211 Comments of the Non-Aligned Movement on the Observations and Recommendations Contained in the Report of the High-level Panel on Threats, Challenges and Change, Non-Aligned Movement Position Paper (28 February 2005), online: <http://www.un.int/malaysia/NAM/Positionpaper280205.doc> at 43.
212 Dunn, supra note 3 at 30; Perkovich, supra note 33 at 57.
213 Graham, supra note 45 at 10; Lodgaard, supra note 43 at 121; Raymond and Kegley, supra note 96 at 103; Newcomb, supra note 123 at 631 (who nevertheless supports “pre-emptive” self-defence); Henderson, supra note 41 at 19; Byers, supra note 176 at 76.
214 Lodgaard, supra note 43 at 117; Raymond and Kegley, supra note 96 at 103; Mallison and Mallison, supra note 96 at 443.
215 Dunn, supra note 3 at 29.
216 Ibid; Oborne and Morrison, supra note 3 at 22.
217 Perkovich, supra note 33 at 48.
218 Waltz, Kenneth N, “Why Iran Should Get the Bomb” (July/August 2012) 91:4 Foreign Affairs 2, online: Council on Foreign Relations <http://sistemas.mre.gov.br/kitweb/datafiles/IRBr/pt-br/file/CAD/LXIICAD/Pol%ADtica/Why%20Iran%20Should%20Get%20the%20Bomb.pdf>.Google Scholar
219 Although it should be noted that Khamenei, in 2005, issued a fatwa outlawing the possession of nuclear weapons. See Oborne and Morrison, supra note 3 at 76–79.
220 See, for example, Reisman and Armstrong, supra note 149 at 545 (quoting former Iranian Defence Secretary Shamkhani as claiming a right of “pre-emptive” self-defence against US troops in the Middle East in 2004); Nagan and Hammer, supra note 40 at 408, n 129 (quoting Henry Kissinger as remarking: “It is not in the American national interest to establish pre-emption as a universal principle available to every nation.”)
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