The case against attacking Iran’s “nuclear sites”

In a compelling legal opinion published in the Los Angeles Times, Yale law professor Bruce Ackerman demonstrates how America’s support of a “preemptive strike” against Iran violates the U.N Charter and International Law in general. He furthermore argues that engaging in a war regarded as illegal from an international law standpoint also violates the U.S Constitution.

So basically, Professor Ackerman tackles the question from two legal frameworks:  The first one is called the “Jus ad bellum” framework, which is the body of international laws that primarily deals with the conditions under which states (in this case, Israel and the U.S) can enter war. And secondly, from a “domestic law” perspective, which is more concerned with the constitutional limits put on governmental institutions in the use of their war prerogatives.

However, when it comes to the particular case of attacking Iran’s nuclear facilities, the legal challenges shouldn’t just end here. Because (unlike the run-ups to other wars in history) Israel and its Western allies have beforehand specified what installations they precisely want to target in Iran, it is also incumbent to assess the legality of such an attack from a third legal framework as well. This third framework, lawyers call it the “Jus in Bello”. And it is the body of laws that namely defines what constitutes a legitimate target, notwithstanding if the war was started legally or not.

“Jus in bello” is the Latin term for “the law within war”. It is also commonly known as International Humanitarian Law, or IHL. The main legal conventions that regulate IHL are, evidently, the four Geneva Conventions and their two Additional Protocols, the breach of which potentially constitutes “war crimes”. And even though some countries, including the U.S and Israel, have not ratified all of these instruments, it should be noted that they are still rightfully required to respect most of their principles and provisions, since the latters have acquired “customary” status under international law.

This said, lets hereby add an IHL dimension to Professor Ackerman’s argument:

1- Under IHL, Iran’s nuclear installations are considered civil objects, and civil objects shall not be subject of an attack or reprisals. This is what Article 52 of Additional Protocol I to the Geneva Conventions (API) explicitly requires.

Of course, civil objects could lose their protection once they contribute in a direct and effective way to military operations in the course of a war, some would argue. But the fact remains that, absent an ongoing armed-conflict between Iran and its contenders, it would be hard to detect what tangible “military objective” or operation Iran’s nuclear installations are significantly and directly supporting in order to become targetable objects.  At best, it could be contended that Iran’s nuclear installations may potentially serve the country’s “ambition” to bolster its military capabilities. But IHL does certainly not grant permission to treat a civil object (much less a hazardous nuclear installation) as a military target solely based on a presumed “intention”.

Furthermore, Paragraph 3 of Article 52 also says that in case of doubt as to whether an object (which is normally dedicated to civilian purposes) is being used for military aims, it shall be presumed to be a civil object.  Relying on N.I.E reports and IAEA findings alone, one can easily argue that there are indeed ample doubts as to the purpose and regular function of Iran’s nuclear facilities.  

Besides, even assuming (for the sake of argument) that Iran is in fact conducting regular military operations against Israel and the U.S and that its facilities do in fact directly, regularly and significantly support these operations, it should be noted that the “threshold of support” that is required to turn nuclear installations into targetable military objects is much higher than the threshold required to “transform” ordinary civil objects into military ones.

2- Under IHL, not only are these facilities considered civil objects by nature and purpose, but they also fall under a particular category of specifically protected objects.  This is what Article 56 API expressly provides in this regard:

“Works and installations containing dangerous forces, namely dams, dykes and nuclear electrical generating stations, shall not be made the object of attack, even where these objects are military objectives, if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population”.

This means that under the laws of warfare, the humanitarian cost of attacking such hazardous installations is deemed to be so high that no military considerations will likely justify their targeting. In fact, some authors even argue that attacking nuclear installations should be subject to an absolute prohibition just as the use of chemical and a biological weapons is, no matter what “military advantage” their destruction could confer to the assailant.

3- Since Iran’s nuclear sites are built too deep underground to be reached by the conventional weapons, it is often stated that their destruction would require the use of “Hard Target Penetrating Weapons” such as nuclear bunker busters. Of course, the radioactive fallout from the detonation of such weapons - and the potential catastrophic humanitarian and environmental effects of their use – could be a grave violation of IHL in its own right.

According to Article 51 of API the “civilian population and individual civilians shall enjoy general protection against dangers arising from military operations”. Hence, indiscriminate attacks –namely those which employ a method or means of combat the effects of which cannot be limited – are explicitly prohibited.

A further prohibition of the employment of such radiation-releasing weapons could also arise from Article 35 (3) of Additional Protocol I which prohibits methods of warfare the use of which is expected to “cause widespread, long-term and severe damage to the natural environment”.

Of course, much more could be said about the illegality of targeting Iran’s nuclear installations from an IHL perspective. But the point here is to bring to spotlight a dimension of the question that has been unjustifiably omitted in public and legal debates. Let’s not forget that the question is not just about attacking Iran. It’s also about attacking “nuclear sites” - with all the humanitarian consequences that this entails.