|
kalikshama -> RE: Cyberattacks against Iran (6/2/2012 12:09:29 PM)
|
quote:
Is it against the world law, at least the UN law, for Iran to produce nuclear weapons?
Iran's nuclear programme: legal debate stirs over basis for US or Israeli attack
...legal authorities are confronting the challenge of constructing a legal case for attack, if it comes.
And already there is considerable dispute over the issue.
Alan Dershowitz, the renowned jurist and supporter of Israel, has argued that the US and the Jewish state can invoke a long-standing right under customary international law of "pro-active self-defence" as well as article 51 of the United Nations charter.
Sceptics counter that international law only permits military action in response to an imminent attack, or if one is under way. They say there is no immediate threat because, as the White House has said, there is no evidence Tehran is building a nuclear weapon.
Then there are those who argue that the legal grounds for a military assault have already been met because the US and Israel are already under attack from "terrorist organisations" sponsored by Iran.
There is considerable support among politicians who favour an attack on Iran for the view of Anthony D'Amato, a professor in international law at Northwestern University, who has argued cases before the European Court of Human Rights. He says using force to prevent Iran obtaining a nuclear weapon would uphold international law, not undermine it.
"Iran says it wants to push the Israelis into the sea and that they are constructing nuclear weapons. That's enough for me to say that cannot be allowed. If the US or Israel takes the initiative to block that action, it can hardly be said to be violating international law. It can only be preserving international law for future generations," he said.
"In order to preserve international law we have to defend it once in while. I think we have to defend it against rogue states or states that have expressed a hostile intentions, like Iran and like North Korea. The only reasonable thing to do is to take those weapons out. Remove that threat and the world is going to be safer."
But D'Amato's view is scorned by other specialists in international law.
Much of the the legal argument centres on the interpretation of one word: imminent.
Although the United Nations charter recognises the right of self-defence, it is imprecise. Lawyers look beyond the charter to an older standard in customary international law, established in the 19th century, allowing one state to use force to preempt an imminent attack by another.
That came out of a cross-border raid by British forces into New York state in 1837 to destroy an American ship, the SS Caroline, which was delivering aid to a rebellion in Canada. The British raiding party set fire to the Caroline and cast her adrift toward Niagara Falls. One American was killed.
In the ensuing diplomatic battle, London and Washington agreed on a treaty providing for a right of pre-emptive self-defence – more commonly spoken of today as a pre-emptive strike – but only when there is "instant, overwhelming" necessity, "leaving no choice of means, and no moment of deliberation".
That formula has long been regarded as an integral part of international law, but there are wide differences over how the "Caroline test" would apply to a US or Israeli attack on Iran.
D'Amato said the threat is imminent because of Tehran's rhetoric against Israel. He said the US and Israel are also entitled to act under a clause in the UN charter – article 2, paragraph 4 – requiring countries to refrain from "the threat or use of force against the territorial integrity or political independence of any state".
"Let's ask the question: who would be violating that clause? Would it be the United States' attack on Iran or would it be Iran's threat against Israel? Who is the violator here? If Iran is in a war to the death with Israel, as they claim they are, and they are also preparing nuclear weapons against a small state, I think any reasonable person would look at that and say they are in violation of article 2 section 4 of the charter," he said.
But Kevin Heller, author of The Nuremberg Military Tribunals and the Origins of International Criminal Law, and who served as Human Rights Watch's external legal advisor on Saddam Hussein's trial, is dismissive of D'Amato's interpretation.
"To say that argument is profoundly flawed is an understatement. It may well be that by threatening the use of force Iran is in breach of the UN charter. But that couldn't possibly justify a military response," he said.
Heller said that whatever threat Iran my pose, it is not "imminent", as required by the Caroline test.
"In terms of Iran, I don't even think it's enough under the UN charter for the US to say Iran has a nuclear weapon. At a minimum, they would actually have to have a nuclear weapon, and they would have to issue some kind of concrete threat to use it against Israel or some other country before a military response would be acceptable," he said.
Bruce Ackerman, an influential constitutional law professor at Yale, is similarly sceptical of any claim of an imminent threat.
"The idea that the United States is under imminent threat from Iran is preposterous. It is not preposterous that Israel's under threat from Iran. It just isn't imminent," he said....
|
|
|
|
