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Would an attack on Iran be legal?
By Paul Reynolds
World Affairs Correspondent, BBC News website

As diplomatic attempts continue in the UN Security Council to get Iran to suspend its nuclear enrichment activities, the question has been raised about an American attack on Iran and whether it would be legal under international law.

View of Iran's uranium enrichment site at Natanz
Iran says its nuclear programme is

If the US decided to attack Iran, it would probably claim that it was acting pre-emptively and exercising an inherent right of self-defence under the UN Charter.

One can rule out the US taking the other main legal path by which one state can attack another - an authorisation of force by the Security Council. Russia and China, both veto holders, are opposed to sanctions against Iran, let alone military action.

And nor would it invoke the growing doctrine of a humanitarian intervention, as the conditions needed for that do not apply.

So the US would probably seek to justify an attack under the self-defence principle, and it would first of all have to outline the nature of the threat.

Currently, this would refer to Iran's previously secret development of enrichment technology, and therefore its forfeiture of trust; its refusal to follow Security Council demands to suspend enrichment; and its president's hostile comments on Israel's right to exist.

All of these would be declared a threat to the US, its interests and to regional and world security. At some future date, the US might bring forward further arguments, depending on how Iran's nuclear programme develops.

Article 51

Having defined the threat, the US would then invoke Article 51 of the UN Charter, which allows self-defence.

This article says: "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."

To get round the phrase "if an armed attack occurs", the US would say that international law does not require that an attack is actually taking place, and that its own new doctrine of pre-emption, an extension of the self-defence principle, was being implemented.

It justified pre-emption in a National Security Strategy document in 2002, after the attacks of 11 September 2001:

"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 US might say that it was acting in protection of or at the request of Israel, which could argue that it was under a greater threat than the US itself.

Collective defence is allowed by the UN if the original state claiming self-defence asks for help.

It is possible that, if the Security Council ever agreed a resolution under the enforcement of Chapter Seven of the UN Charter, which orders a member state to comply, the US could declare that it was enforcing it unilaterally.

International law

Would such arguments be accepted in international law?


There is currently no basis for an American attack on Iran under Article 51
Elizabeth Wilmshurst

There is some legal backing for the principle of not waiting too long.

A British judge, Dame Rosalyn Higgins, who was made president of the International Court of Justice in February, said before she joined the court: "In a nuclear age, common sense cannot require one to interpret an ambiguous provision in a text in a way that requires a state passively to accept its fate before it can defend itself."

However, the general view among international lawyers is that there has to be the threat of an "imminent" attack.

British Attorney General Lord Goldsmith, who used a complex series of Security Council resolutions on Iraq to justify the 2003 invasion, was critical of pre-emption in the House of Lords in April 2004: "International law permits the use of force in self-defence against an imminent attack, but does not authorise the use of force to mount a pre-emptive strike against a threat that is more remote."

There is therefore a fairly fundamental divergence between the US doctrine and the view of much of the rest of the UN membership. At the very least, there is no settled opinion.

The question of imminence

Elizabeth Wilmshurst, senior fellow in international law at the British think tank Chatham House, who resigned as a legal adviser to the Foreign Office because she felt the invasion of Iraq was illegal, told the BBC News website: "There is currently no basis for an American attack on Iran under Article 51. There certainly is not a case for self-defence at the moment.

"You do not have to wait for an attack but the threat has to be real and imminent."

She did not think the conditions for a self-defence argument existed. "Does enrichment of uranium count as a threat?" she asked. "It has not been weaponised. Is there a threat?"

Nor did she accept that the US could enforce a Chapter Seven resolution by itself. "This requires a further resolution authorising force and is a settled view," she said.

That an attack is illegal is also a view shared by former British Foreign Secretary Jack Straw. He told reporters the other day that an Article 51 action could not be justified.

The new Foreign Secretary, Margaret Beckett, has not gone that far, saying only that nobody had any "intention" of attacking Iran.

British Prime Minister Tony Blair has pointedly refused to say that an attack is "inconceivable", a word used by Mr Straw, but whether this is a tactical use of language to rattle Iran or whether it foretells potential British support for an attack is not clear.

Ms Wilmshurst accepted that Israel might regard itself as threatened, given the remarks made by President Mahmoud Ahmadinejad.

But she added: "Israel would have to take an objective, realistic view as to whether there was a real threat, and I am doubtful at the moment."

The Caroline incident

Much of the traditional doctrine on self-defence comes from an incident in 1837 near the Niagara Falls, in which a boat called the Caroline was attacked and tipped over the Falls by British forces that moved into American waters from Canada. The boat was being used by Canadian rebels preparing an attack.

Some very elegant diplomatic exchanges between US Secretary of State Daniel Webster and British Foreign Secretary Lord Ashburton led to the acceptance of Webster's principles of pre-emptive self-defence. These held that it was justified only in cases in which the "necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment for deliberation".

The UN Charter basically adopted that rule, and a highlevel group which looked at UN reform in 2004 said that "Article 51 needs neither extension nor restriction in its long understood scope".

The General Assembly confirmed that view. However there remains some debate about how "imminent" a threat has to be, and how large.

The doctrine of pre-emption has therefore not received widespread international backing. Last year, Chatham House sent a questionnaire about self-defence to 13 international lawyers in Britain. As a result, a number of principles were drawn up to give precision to Webster's phrasing.

These stressed the importance of imminence.

Post-9/11 style pre-emption was not endorsed.

when did any law matter to the Bush administration?

About as "legal" as the Iraq invasion and war was. "Legality" is a pretty meaningless term when its the aggressor-nation itself, in this case the United States of America, that determines what is legal or illegal, and is stronger than everyone else so nobody can hold it accountable for what it does.

The US will do whatever it can get away with, and international law be damned. You still believe the US plays by the rules. Rules and laws are made to be manipulated and broken by the powerful. They will manipulate and interpret the law around what they already want to do. Haven't you recognized this by now? The law and rules are created by the powerful to control the powerless. They were never meant to restrict the behavior of the powerful themselves. In any case, the ends justify the means. And afterwards, who is really going to care, one way or another? America did it, and that makes it legal and right by definition to the majority of Patriotic American citizens, regardless of the circumstances. Just like Iraq.

I know that is a terribly cynical attitude, but it is the only attitude that makes sense in America right now.

Absolutely it would be legal,
and Bushco would take great pains to change what ever law they needed to make it legal!

From what I have seen from the Bush Administration, it seems as if they are doing what they did with Iraq. The only problem is Iraq hardly has a military and they have still yet to control the situation. If the US invades Iran there is going to be much more bloodshed. After Iran is down whose to say Sudan isn't next?

The weird thing about this whole middle east war is the history behind the US and these countries. Afghanistan, Iran, and Iraq have a past that seems a little fishy to me.
If (more likely when) the war breaks out in Iran I fear an outbreak of fighting between more countries then just Iran.

the 3 main causes of WW1 were
The Assasination of Archduke Ferdinand
The rise of Nationalism
The building up of the Military and Aliances

the main cause of WW2 in my opinion was unfinished business from WW1 and the rise of the Nazi Regime

I can see history echoing itself alread. The assassination of Archduke Ferdinand was the spark of WW1 caused by a terrorist group known as the Black Hand. For the wars in the middle east, it was 911 that sparked it commited allegedly by a terrorist group in Al-quaeda.

Nationalism has been apparent in the US since they first won WW2. Nothing wrong with being proud of ones country but when nationalistic propaganda is made to make people believe there is reason for War is truly unjust.

The building up of military seems to be existant in the world today. The US and Canada are both in a state of militarizing. With Hamas the leader of Palestinian power, talks of war in Iran, and possibly Sudan next the world is changing for the worst. 100 years ago today these similar wheels were in motion.

WW1 ended with unfinished business, and because of that WW2 occured and the Leaque of Nations had no control over anything. Now it seems like the UN is just as powerless to really do anything.

I am not going to call Bush a Fascist because I have seen some of the stupid arguments by bush supporters (cough-cough-Dough-Cough) after this word gets thrown around. Fascist or not one thing I think we can all agree that Bush is evil and is ruining a wonderful country like the US.

If the war in Iran sparks (many conspiracy theorists already think that June 6 is a day to look at) there will be hell to pay. Not just for Iran or the US but humanity as we know it. We have gone over 60 years without a nuclear bomb being dropped on another country because of the effects the bombs in Nagasacki and Hiroshima have had on Japan, but we have yet to see the power of the more advanced nuclear weapons that were made during the cold war. We are on the brink of destroying ourselves and its the people in the US who are powerless to do anything-not even protest works anymore because of the modern day US pigs(cops).

In the end the US will lose its power... the balance of power will be shifted as it always happens at the end of a big war, and China will probably take over (if there is any of the world left to takeover) as the superpower who polices the world and sticks its nose in more business then the UN ever will.

not by international standards. And Iran isn't doing anything openly illegal. One of the three pillars of the non-proliferation treaty is the right of any nation to produce peaceful nuclear energy. Should Iran decide to create nuclear weapons, they are years away. They could however, have gotten the material and knowledge from the A. Q. Khan network originating from our allies in the "War on Terruh" TM, Pakistan as NK did.

A preemptive attack on Iran is legal according to us, though. The bill was passed years ago allowing for it. it's available in .PDF format on our documents archives page.

The terrible thing is is that Bush has put Iran in a spot where they would be foolish not to aquire nukes.

Well, shit, we oughtta be executin' democrats as potential murderers.

Rules and Laws are only for servants and slaves.