The Osterley Times: Would attacking Iran be legal?

The BBC have learned that the Bush administration have plans for attacking Iran that go far beyond it's nuclear facilities and include most of the country's military infrastructure.

It is understood that any such attack - if ordered - would target Iranian air bases, naval bases, missile facilities and command-and-control centres.

The US insists it is not planning to attack, and is trying to persuade Tehran to stop uranium enrichment.

The UN has urged Iran to stop the programme or face economic sanctions.

But diplomatic sources have told the BBC that as a fallback plan, senior officials at Central Command in Florida have already selected their target sets inside Iran.

That list includes Iran's uranium enrichment plant at Natanz. Facilities at Isfahan, Arak and Bushehr are also on the target list, the sources say.

BBC security correspondent Frank Gardner says the trigger for such an attack reportedly includes any confirmation that Iran was developing a nuclear weapon - which it denies.

Now, citing the fact that Iran may or may not be building a nuclear bomb as the reason for a possible US attack on that country does not, in itself, mean that such an attack would be legal under international law.

Bush would no doubt invoke Article 51 which states:

"Nothing in the present charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security."

However, as no armed attack is actually taking place against the United States, Bush would have to rely on his own policy of pre-emption as set out in a National Security Strategy document in 2002, after the attacks of 11 September 2001. This states:

"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 of the enemy's attack. To forestall or prevent such hostile attacks by our adversaries, the United States will, if necessary, act pre-emptively."

The right of pre-emption under international law is not actually a concept that Bush invented in this National Security Strategy document, although from the way some of his supporters talk you would be forgiven for thinking so.

The right of pre-emptive self defence has existed in international law since an incident in 1837 when the British boarded the American steamboat Caroline, which had been carrying supplies to a group of Canadian insurgents, and set it on fire, leaving it to float down river towards the falls.

This incident, in which at least one US citizen was killed, could easily have triggered war between the US and Britain. However, it went on to become the bedrock of what became known in international law as anticipatory self defence.

The British argued that the Caroline had to be attacked because this was the only way to deprive the rebels of their means of invasion. An invasion which was imminent.

In a series of letters between US Secretary of State, Daniel Webster, and the British Special Minister to Washington, Lord Ashburton, the concept of what became anticipatory self defence was hammered out.

Ashburton sets such instances as those where, for the shortest possible time and due to an overruling necessity and within the narrow confines of such a necessity, self-defence may be invoked. He firstly states that self-defence is the first law of nature and is recognised by every code that regulates the condition and the relations of man. Doing so, he recognises fully the general principles laid down by Webster and set his argument upon them but establishes a difference between expeditions across national border and the case of the Caroline. He presents the example of a situation where a man standing on grounds where you have no legal rights to chase him presents himself with a weapon long enough to reach you. He then asks how long one is supposed to wait when he has asked for succour and asked for relief and none are forwarding. By doing so, he recognised the efforts made by the United States to prevent American taking part in the Canadian rebellion, by underlines the inefficiency of its attempts.

Furthermore, Ashburton includes in his version of the events that the initial efforts to capture the Caroline was to seize her in British waters at Navy Island, and not on the American side but that since the orders of the rebel leaders were disobeyed, the Caroline went, docked and was moored at Schlosser point. It is only as he passed the point of Navy Island that Commander Drew did not see the ship there but on the American shore and that pursuant with his mission forged ahead. This statement addressed the question by which not a moment was left to deliberation, that the expedition was not planned with the intent of invading American territory from the outset by those circumstances and that the necessity of preventing the rebels from further use of the ship as a mean of invasion overwhelmed the normal respect of national territory.

When the Third Reich invaded Denmark on May 31, 1939, they proffered a defence of "preventative action" which was fully rejected by the court based on this exchange of letters between Webster and Ashburton which the court ruled had established anticipatory self defence as being allowed only in cases where there existed, “an instant and overwhelming necessity for self-defence leaving no choice of means, and no moment of deliberation.”

So, under international law, in order to be able to invoke anticipatory self defence one would have to be able to prove that an attack against oneself or an ally (in this case I presume the US would cite Israel) is imminent and that the US has been left with "no choice of means, and no moment of deliberation.”

It is very hard to imagine that the US - even were Iran to be in the process of building a nuclear weapon - could amply prove that Iran had any imminent intention to use such a weapon. And even taking Ahmadinejad's comments regarding Israel into account, those comments in themselves do not provide proof of an imminent attack, especially as Israel herself possesses the very weapons that the US are claiming Iran are attempting to build.

So, under the definition hammered out between Webster and Ashburton, there appears to be no legality to this planned attack and certainly none under the rules of anticipatory self defence as recognised under international law.

Not that I believe for a moment that the question of legality bothers Bush one way or the other, but - with the notion that the administration would cite Iranian possession of a nuclear weapon as a valid reason for an attack - I think Congress should address, not whether or not such an attack would be dangerous, but whether Bush has any right to even consider such an attack under international law.

If Congress concluded that he did not, then steps could be taken to prevent him from launching one. Bush announced that war against Iraq was not inevitable whilst taking steps to ensure that it was. Likewise, he now claims that he has no intention to attack Iran whilst taking the very same steps that preceded the Iraqi invasion.

Congress should reaffirm that anticipatory self defence is not applicable at this time against Iran.