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A Misreading of Law and History on Preemptive Strikes

By Peter Berkowitz - March 11, 2012

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As for the Reagan administration’s response to the Israeli bombing of Iraq’s Osirak nuclear reactor in 1981, it is true that several nations voting for the unanimously adopted Security Council Resolution 487 condemning the raid argued that the threat posed by Iraq to Israel failed to meet the clear and exacting standards of Webster test. But contrary to Ackerman’s assertion, the Reagan administration did not embrace this rationale. Rather, as U.N. Ambassador Jeane J. Kirkpatrick stated at the time, the United States’ decision to support the Security Council resolution was “based solely on the conviction that Israel failed to exhaust peaceful means for the resolution of this dispute.”

Concerning the failure to find weapons of mass destruction in Iraq in 2003 after removing Saddam Hussein from power, this no more proves the wisdom of the Webster test and the illegality of preemption than would the discovery of weapons of mass destruction in Iraq have established the legality of preemption. The scope of nations’ inherent right of self-defense is grounded in centuries of state practice and contemporary analysis of evolving threats and changing military capabilities.

Indeed, 40 years before Operation Iraqi Freedom, in his 1963 analysis of the Cuban Missile Crisis, Professor McDougal reported that a consensus had formed around the view that the advent of the nuclear era rendered the Webster rule a dead letter: “The understanding is now widespread that a test formulated in the previous century for a controversy between two friendly states is hardly relevant to contemporary controversies, involving high expectations of violence, between nuclear-armed protagonists.”

Ackerman’s misconceptions do not end with his sweeping claim that before George W. Bush the American constitutional tradition did not recognize the legality of preemption. They extend as well to his insinuation that support for preemption vanished after Bush left the White House.

Actually, without ever quite saying so for obvious political reasons, the Obama administration has adopted -- and elaborated in major speeches by State Department Legal Counsel Harold Koh, top counterterrorism adviser John Brennan, and Attorney General Eric Holder -- the Bush opinion that in an era of transnational terrorism, rogue states, and the proliferation of weapons of mass destruction, considerable flexibility is needed in determining when a threat is imminent, and when preemptive action is justified.

Those opposed to launching a strike against Iran should guard against the temptation to bend the precedents and provisions of international law and twist the facts of American politics to conform to their policy preferences. At the same time, a brief in behalf of the legality of a military strike against Iran must not be confused with a brief in behalf of a military strike against Iran.

Whether to launch a strike to destroy or disable Iran’s nuclear program is the weightiest decision Obama and Netanyahu face. It depends on multilayered judgments about the efficacy of diplomacy and sanctions, windows of opportunity for military action, and how far the program can be set back at this late stage.

And it depends on complex calculations about the likely backlash: thousands of missiles raining down on Tel Aviv by Iran-sponsored Hamas in the south, Iran-sponsored Hezbollah in the north, and Iran to the east; intensification of the international opprobrium to which Israel is already subject; military operations against American military assets and allies in the Persian Gulf and the spread of war throughout the region; closure by Iran of the Strait of Hormuz, triggering skyrocketing oil prices and paralysis of the international economy; and a wave of terrorist attacks on Israeli and American targets around the globe.

Grave, too, would be the costs of allowing Iran to build a nuclear weapon. A rogue state ruled by theocrats and Holocaust deniers and dedicated to the expansion by force of Shia Islam, Iran would threaten Israel, the Arab world, Europe, and soon the United States with nuclear-armed missiles. It would also be likely to set off a nuclear arms race in the Gulf, resulting in not one but several regimes that contain Islamist elements sympathetic to jihadists and terrorism possessing the world’s most dangerous weapons.

What can be safely said is that the effort to close off discussion about striking Iran by concocting a legal prohibition out of fragments of international law and cropped photos of the American constitutional tradition does more than betray illiberal and anti-democratic tendencies. It also would deprive the nation of the informed debate on which our security depends. 

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 Peter Berkowitz is a senior fellow at the Hoover Institution, Stanford University.  His writings are posted at www.PeterBerkowitz.com and you can follow him on Twitter @BerkowitzPeter.

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