By Dan Joyner
via Arms Control Law
Colonel Libman was responding to my post from last Thursday regarding Steve Walt’s recent FP piece. However, I wanted to give Col. Libman’s comment, and my response to it, their own post. I’ll first copy Col. Libman’s comment as a block quote, and then give my response to it below:
Dear Mr. Joyner. I thought this is a blog about LEGAL issues relevant to arms control. This post does not contribute anything to the legal analysis, and seems more like another chapter of the “save Iran” campaign you seem to engage in persistently on this platform.
The first chapter was titled “Can the U.S. or Israel Lawfully Attack Iran’s Nuclear Facilities?” and, at least, had some fair legal arguments, although I had two comments on this discussion:
First, the whole discussion was planted in Jus Ad bellum, presuming that an attack on Iranian nuclear facilities will be the beginning of an armed conflict. This is overlooking the possibility that Iran and Israel are already in war. Just this morning Iran’s proxies in the Gaza strip launched Grad rockets to the Israeli city of Beer Sheva, causing a shutdown of all schools in the city (See this report: http://www.ynetnews.com/articles/0,7340,L-4297621,00.html). And this is not a singular incident. Earlier this month, Iran’s northern proxy, the Hezbollah, sent a drone infiltrating Israeli territory. I need only quote Lebanese ex PM, Mr. Siniora (not a great fan of Israel) that said: “Sending the drone over Israel is not a Lebanese decision, however the move was made at an Iranian behest. Such act needs techniques only available in Iran”. Mr. Siniora further expressed the concern that such an act implicates Lebanon in possible military operations and Israeli reactions.
(The Daily Star, Lebanon News: http://www.dailystar.com.lb/News/Local-News/2012/Oct-14/191353-siniora-hezbollah-drone-sent-over-israel-at-irans-behest.ashx#ixzz2Aa1suZtw )
It is interesting to note that Prof. Dinstein, in his book “War, Aggression and Self-Defence”, discusses the 1981 Israeli raid on a nuclear reactor under construction in Iraq. In his opinion, the attack is justifiable as a continuation of the state of war that had started as a result of the Iraqi invasion of Israel in 1948 and its subsequent pulling out without signing an armistice or a peace treaty. Of course, the situation between Israel and Iran is not identical, but perhaps a similar argument can be made.
Secondly, your comment in the discussion following this post that “We all know the lengths to which the U.S. and Israel have gone to argue that the Jus in Bello hasn’t applied in significant ways to, e.g., the war in Afghanistan; prisoners at Guantanamo Bay; predator drone strikes in Pakistan; military strikes in Gaza and in the West Bank” has no base in the facts, at least when it comes to Israel. Israel never denied the applicability of Jus In Bello to its armed conflict with Palestinian armed groups, ongoing since 2000. Just check the official Israeli government position paper “The Operation in Gaza – factual and legal aspects”, part III (available at: http://www.mfa.gov.il/NR/rdonlyres/E89E699D-A435-491B-B2D0-017675DAFEF7/0/GazaOperationwLinks.pdf ). Indeed, Israel did deny the applicability of the IV Geneva Convention in the territories it occupied from Egypt and Jordan in 1967, but this had nothing to do with the rules on the conduct of hostilities.
The next chapter in this “save Iran” crusade was “The Myth of Surgical Strikes on Iran’s Nuclear Facilities”. I will presume, for the purpose of this discussion that the figures quoted of possible Iranian civilian casualties because of a strike are realistic, although they do not seem to come from impartial sources. However, one cannot draw such unequivocal conclusions about illegality of an attack in Jus in Bello just based on potential civilian casualties. The rule of proportionality is about the RELATION between civilian casualties and damage to civilian objects and the military advantage of the attack. Only when the civilian toll is excessive in relation to the military advantage, is the attack illegal. You have not considered the anticipated military advantage Israel or the US might see in such an attack. Maybe a hint can be found in the words of former Iranian president Hashemi Rafsanjani . In a speech in 14 December 2001, he warned that if Muslims possessed nuclear weapons, “the attitude of global arrogance would have to change”. He added that “the use of even one nuclear bomb in Israel will destroy everything, whereas [a nuclear explosion] would only harm the Islamic world” (available at: http://www.cer.org.uk/sites/default/files/publications/attachments/pdf/2011/wp513_eng_iran-1512.pdf ). And this is considered to be an Iranian “pragmatist” and “moderate” leader.
Just to clarify, I do not necessary think that a military strike on Iran’s military nuclear program, either by the US or by Israel is a good idea. In any case, it can only be a last resort. However, if your legal position is that Israel cannot act before an Iranian nuclear warhead is about to be launched against it in the name of holy Jihad, I suggest you check again your fundamental understanding of law. As the former president of the Israeli supreme court, Aharon Barak, once said : “A Constitution is not a prescription for national suicide” (“The Judge in a Democracy”, 2006, Princeton University press, p. 291). I think it is true for law in general and for international law, too.
Dear Colonel Libman, I cannot help noting the profound irony of the chief international lawyer for Israel’s military – someone who is paid to convince the world that whatever Israel does is legal – accusing me of political bias in my legal analysis.
I certainly won’t apologize for bringing attention to Steve Walt’s article. Unlike you, I don’t see it as a part of a “save Iran” campaign, but as a part of a “let’s think about this rationally and not go to war” campaign. I recommend its reading, and its thinking, to you.
With regard to your legal arguments, I note that you use the non-technical term “state of war” when making your jus ad bellum arguments. I suspect this is because you know that trying to claim that there is an actual armed conflict – the only relevant legal term – in existence between Israel and Iran, would be unpersuasive according to the jus in bello and the relevant facts. There is no armed conflict in existence currently between Israel and Iran, and to claim that there is is just grasping at straws in an unpersuasive attempt to do your job – convince us that whatever Israel does is lawful. Lawyers for the USG, particularly during the bad old Bush years, have similarly tried to argue that the US is in some kind of eternal state of war with a method of violence – terrorism – and with anyone (names to be continually added) that the USG thinks employs that method of violence against the US or its allies. That argument of a continuing legal war on terrorism, which is of course intended to legally justify anything the USG wants to do anywhere in the world that has any connection to terrorism, no matter how strained the connection – has been similarly unpersuasive to international legal scholars.
When I made the statement that you quote about Israel denying the applicability of the jus in bello to strikes in the West Bank and Gaza, I was indeed referring to Israel’s repeated erroneous denial that Geneva Convention IV applies to the West Bank and Gaza, and its continued argument that these are not occupied territories under the jus in bello. I understand the distinction you are making with regard to conduct of hostilities, and I concede that to be more correct I should have replaced the word “strikes” in that sentence with “occupation,” so that the sentence would have read “We all know the lengths to which the U.S. and Israel have gone to argue that the Jus in Bello hasn’t applied in significant ways to, e.g., the war in Afghanistan; prisoners at Guantanamo Bay; predator drone strikes in Pakistan; military occupation in Gaza and in the West Bank.” The overall point I was making in that sentence, in context, which was clarified by the hypothetical I spelled out in the next paragraph, is that, like the US, Israel has gone to great lengths whenever possible to try to limit its exposure to the law of the Geneva Conventions, and might be expected to do so again in the context of a strike against Iran. Israel’s repeated denials of the applicability of GC IV to the West Bank and Gaza, and denial that Israel has the legal duties of an occupying power – arguments that have been thoroughly discredited by the International Court of Justice and the vast majority of academic commentators – are certainly proof of these efforts.
Now with regard to your comments about the anticipated military advantage of attacking Iranian nuclear facilities, and the potential for this military advantage to outweigh, under proportionality analysis, the very significant civilian casualties that would be caused by the release of dangerous forces from these attacks, which as I and Marco noted in the post and comments, is the subject of both treaty and customary international law establishing an exceptionally high standard of care for the attacking force.
The question of military necessity is of course a complicated one, as is the question of actually applying the proportionality test as between military necessity and civilian protection. I tell my students that it’s kind of like comparing apples and anvils. As it happens, we are very honored here at Alabama right now to have President Aharon Barak visiting with us and teaching a short course. And I had the privilege today of having lunch with him. I mentioned our exchange to him, and we talked about questions surrounding this issue, including whether military necessity in IHL is essentially a subjective determination on the part of military officials, or alternatively whether it is essentially an objective determination that can be reviewed by courts of law and in other legal fora. And even if it is an essentially objective determination, to what extent should the law defer to military officials’ determination of military necessity? I found the conversation very enlightening. His view was that military necessity is essentially an objective determination that can be reviewed by courts and judges, and he said that as a judge he didn’t give any deference to military assessments of military necessity over others’ assessments of military necessity. And he said further – and I found this point particularly analytically helpful – that governments bear the burden of proof of military necessity. I think this principle has very useful application to IHL situations, and places the burden for establishing military necessity on the shoulders of the attacking military.
There is of course a long history of disconnect between Israeli military and civilian officials on the one hand, and the broader international legal community on the other, on questions of international humanitarian law, including the question of military necessity and proportionality balancing.
We have seen this disconnect play out so many times in the judgments of the International Court of Justice; in the assessments of investigating groups sanctioned by international organizations including the United Nations; and in the assessments of respected non-governmental organizations. Israel will claim that military actions in the West Bank, Gaza, or Lebanon are justified by military necessity; but international jurists and other international investigators will subsequently assess these claims to be legally incorrect, in light of countervailing legal considerations of human rights, as protected by international humanitarian law, and embedded in the IHL principles of proportionality and discrimination. Examples of such occasions include the ICJ Wall Advisory Opinion, the Goldstone Report, the van Kappen Report on Qana, and Amnesty International’s reports on the Gaza Blockade and on the 2006 Lebanon campaign.
So often in these cases, Israeli officials’ subjective assessment of military necessity and its proportional relation to anticipated civilian casualties, simply doesn’t convince international jurists and investigators from other countries, who feel they are able to look at the facts and the law in a more objective light, and apply the law objectively to produce a correct result.
Now, who is “right” in the context of these disagreements between Israeli officials and the international community is a complicated question, and one that I have thought a lot about. I was going to say something on this subject here, but I think I’ll have to save it for another day. I’ll rather limit myself here to saying that I see this same phenomenon happening now in the case of threatened Israeli attacks on Iran’s nuclear facilities.
From a military advantage perspective, attacking Iran’s nuclear facilities – including conversion, enrichment and fuel fabrication facilities – appears to most in the international legal community to offer no appreciable military advantage in itself. There is simply no real evidence that Iran is using these facilities for military purposes. This has been established over and over again by Western intelligence agencies. The idea that Iran might, at some indeterminate time in the future, take the decision to use these facilities as part of a military nuclear program, appears to be a suspicion in the minds of Israeli officials that has no real basis or support in the observed behavior of Iran (not just in the incendiary words of some of its leaders), or in any actual evidence regarding Iran’s nuclear program. With the burden of proof resting upon its shoulders for demonstrating military necessity, these facts will make satisfying this burden impossible for Israeli officials. I know very well that you will disagree with the assessment I have just made. But that is precisely my point. There is a longstanding, and continuing disconnect at work.
And even if one does look ahead to some possible military use of these nuclear facilities in the future to find a military necessity for attacking them now, it is well understood that destroying Iran’s known nuclear facilities now would only set Iran’s nuclear program, whatever its character, back a few years – it would not permanently destroy Iran’s program. And in terms of other factors that should also be influentially weighed in calculating military advantage, there is also an increasing awareness that an attack on Iran’s nuclear facilities would actually likely work as a catalyst to Iran’s development and manufacture of a nuclear weapon, and to its withdrawal from the NPT.
All of these factors, taken together, appear to most in international legal community to produce no military advantage from an attack on Iran’s nuclear facilities. Indeed quite the opposite. I think this is how the international legal community overwhelmingly views the prospect of such an attack, and how international jurists and investigators would assess the military advantage factor in a proportionality analysis under international humanitarian law. You can see, then, how this assessment of military necessity wouldn’t even come close to the IHL standard necessary to legally justify such an attack on targets that would release dangerous forces, likely resulting in thousands of civilian deaths. Thus, I am quite confident that the ICJ and other international jurists and investigators would concur with my and Marco’s view that such attacks would be unlawful.
Again, I know that this is not how you would view and assess the military advantage of such an attack, as you’ve said. And therein lies the disconnect that is my overall point here. And again, I’m sure we could go back and forth for hours about who, as between Israeli officials and international lawyers outside of Israel, is right in their assessments of the relevant criteria, and their proportionality with each other.
But I do think it is important to emphasize that the determinations and legal analysis under IHL must remain objectively applied by the international legal community. If not, and if every attacking state is to be given deference in their subjective determinations of military necessity and the proportionality and discrimination tests, IHL would be rendered completely moot and incapable of fulfilling its primary purpose, which is to restrain the methods, means, and choice of targets of militaries during armed conflict, in order to impose a modicum of civility on this most uncivilized of human activities.