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    Summary of ASIL/UNA Program: Use of Force Against a Nuclear Threat from Iran

    Would the use of force to prevent Iran from acquiring nuclear weapons be consistent with the UN Charter and international law? This was the principal issue addressed during the second program in a series on “Use of Force” co-sponsored by ASIL and UNA-NCA, on April 26th at the American Society of International Law (ASIL).

    David Birenbaum began the discussion with a historical introduction.

    Panel member William Taft IV criticized a position expressed at the first program in the series on “Cyberthreats”. Taft characterized the position that international law does not matter “mistaken, as the U.S. must attend to its legal obligations.” On the domestic side, he continued, if the President decides to use force he would need to obtain authority from the Congress to do so; on the international side, it would be most important to obtain the agreement of our allies under Article 2/4 of the UN Charter. That Article, according to Taft, reflects a principle regarding the use of force the U.S. first enunciated at the Nuremberg Trials following WWII, which has served our national interest and enhanced our moral standing in the international community.

    Davis Robinson described the stark contrast between two actions during the Reagan Administration — the Grenada “rescue mission” and the mining of Nicaragua’s harbors — to illustrate a point about international law. In the case of Grenada, Robinson said, there was legal consultation in advance, whereas in the Nicaragua case, legal consultation was not undertaken until after the fact. The lesson learned from these two crises is that if legal advice is sought in advance, administration lawyers can provide timely and positive support for the policymakers. What is important is that lawyers participate in these decisions from the “take-off” and not just from the “crash landing.”

    What if the Security Council says “no”? asked David Birenbaum. It could be argued that if pre-emptive action is a “necessity” demanding the use of force and if the action were “in proportion to the threat” (two basic principles of international law), force would be justified. However, the imminence of the threat of a “humanitarian catastrophe” (used to justify NATO’s intervention in Kosovo), the panelists thought, raises a “troubling” precedent. The imminent threat of the alleged presence of weapons of mass destruction was used to justify the invasion of Iraq. The difficulty post 9/11, said Robinson, is that, in his opinion the UN Charter never contemplated atrocities of such magnitude caused by non-state actors; in spite of this, however, the United States has not undertaken negotiations of a new international convention. Even if such an exercise did not bear fruit, as is probable,  the United States would have some legal justification if unilateral action became necessary against non-State terrorists.

    Applying this problem of the “pre-emptive” use of force to the Iranian situation, the panelists stated that the right of a state to protect itself includes the right to prevent a condition or an action which would destroy that right. The question is: how does a state determine if such a threat exists? Taft argued that only when the state both “acts as late as possible” and cites the “rule of necessity” are they able to determine that the right of a state to protect itself is threatened. Iran’s proclaimed intention to attack Israel, panelists observed, necessarily places on Israel the burden of determining when and if a pre-emptive strike against Iran would be justified. What would justify clearly Israeli use of force against Iran, argued Taft, would be an attack on Israel by Hezbollah, a non-state actor, using arms supplied by Iran.

    During the Q&A, reference was made to the elephant in the room: Israel’s possession of nuclear weapons to which Iran has consistently objected. Harking back to the moderator’s reference at the outset of the meeting that the United States and Israel faced potential nuclear threats from Iran as early as fifty years ago under the Shah, the panelists cautioned against failing to recognize history as a factor in attempting to understand Iran’s intentions as they apply to international law.

    Summary by Dick Rowson, UNA-NCA International Law Committee


    • David Birenbaum, former U.S. Ambassador to the United Nations for UN Management and Reform; Of Counsel, Fried Frank Harris Shriver & Jacobson


    • Davis R. Robinson, former Legal Adviser; Senior Counsel, Crowell & Moring
    • William Taft IV, former Legal Adviser, U.S. Ambassador to NATO, Acting Secretary of Defense and Deputy Secretary of Defense


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