By Matthew Waxman, Special to CNN
Editor’s note: Matthew C. Waxman is a Professor at Columbia Law School, an adjunct senior fellow at the Council on Foreign Relations and a member of the Hoover Institution Task Force on National Security and Law. The views expressed are his own.
In all the talk and debate about possible U.S. or Israeli military strikes against Iranian nuclear development sites, there has been remarkably little discussion of international law. In a recent Washington Post Op-Ed, a former State Department legal adviser and former CIA general counsel lamented that there “has been almost no discussion of whether an attack by the United States would be legal.” One might easily wonder, based on this near-silence amid public debates about red lines and likely effects of strikes on Iranian capabilities and regional politics, whether international law will really matter at all if the crisis should come to military blows.
But it will matter, because strategy and international law are entwined, a reality illustrated 50 years ago this week, in another nuclear showdown: the Cuban Missile Crisis.
On October 22, 1962, President Kennedy addressed the nation. In explaining that the Soviet Union had secretly and in violation of pledges begun moving nuclear missiles to communist Cuba, Kennedy explained:
“Neither the United States of America nor the world community of nations can tolerate deliberate deception and offensive threats on the part of any nation, large or small. We no longer live in a world where only the actual firing of weapons represents a sufficient challenge to a nation's security to constitute maximum peril. Nuclear weapons are so destructive and ballistic missiles are so swift, that any substantially increased possibility of their use or any sudden change in their deployment may well be regarded as a definite threat to peace.”
This language and logic, similar to that used by American and Israeli government officials in explaining the dangers of a nuclear armed or capable Iran, was used at that time to justify the U.S. naval “quarantine” – really a military blockade – of Cuba to prevent further arms shipments and to signal U.S. willingness to escalate. Several days later, and under the specter of superpower conflict, the U.S. and Soviet leadership reached an agreement and the missiles were removed.
From an international law perspective, the U.S. government faced a problem, though. The quarantine was a “use of force,” which is prohibited under the U.N. Charter except in cases of self-defense against an actual or imminent armed attack, or unless the U.N. Security Council authorized force (but that was impossible because the Soviets held a veto). Yes, nuclear missiles in Cuba were very destabilizing and threatening, but there was no indication that a Soviet attack was immediately impending. The U.S. government therefore decided to base its public justification on a resolution favoring the quarantine by the Organization of American States (OAS), even though this was at best a very weak legal argument (since the OAS could not authorize a use of force that was prohibited by the U.N. Charter). Because the stakes were so high and the U.S. legal arguments so thin in this eyeball-to-eyeball nuclear showdown, one might easily dismiss international law as having been irrelevant. International law shaped policy-making in some subtle but important ways, however, with lessons for the current face-off with Iran.
Today, it again seems implausible for the foreseeable future that the U.N. Security Council will authorize military action (this time because Russia and China would likely veto), so international law would demand that American or Israeli military strikes be justified under a theory of self-defense. Such an argument will depend on the facts at the time, but will no doubt face very skeptical audiences at home and abroad.
In the end, perceived strategic necessities eventually may again compel military action even without clear-cut legal authority – it is naïve to think otherwise – but law is itself a factor in that strategic calculus. Dubious legality makes military action more costly – including in terms of military, political, and diplomatic repercussions, as well as long-term precedent that may be exploited by others – and therefore affects its perceived merits relative to other options. Internally within the government, solid legal arguments also strengthen greatly the bureaucratic hands of proponents of force as policy deliberations unfold. During the Cuban Missile Crisis, some senior decision-makers were concerned, for example, about the U.S. appearing as the unjustified aggressor, and this influenced their consideration of whether and how the United States should use force. These factors have grown in importance since the Cuban Missile Crisis in part because the end of the Cold War has revived faith among some Western states in the U.N. Security Council’s primacy in managing security crises and because lawyers now play a more powerful role in many states’ (including the United States’) security and foreign policy agencies.
When military strikes are launched, international law plays a powerful role in either justifying or delegitimizing actions. Widely understood and respected rules and the principles behind them bolster or weaken political and diplomatic arguments for or against military force. Even if the OAS’s approval of the quarantine was insufficient to fully satisfy international law regarding force, it demonstrated broad international backing for action and a commitment to pursuing diplomatic solutions – two core principles of the U.N. Charter system. The U.N. Security Council and OAS, both products of international law, were important forums for communicating the U.S. positions to allies and neutral states and refuting Soviet ones, despite that neither of those bodies was capable of resolving the crisis without U.S. military force and secret bargaining.
The lessons here for Iran policy include that the effectiveness of American or Israeli military strikes or threats of force will depend in part on how persuasively they can argue their legal case to global audiences. Some Western states are increasingly – and correctly, in my opinion – of the view that self-defense rules should take account of the extraordinary destructiveness of nuclear weapons, perhaps especially in the hands of terrorists or terrorist-sponsors. But any claim that preemptive strikes are justified against Iranian nuclear sites will undoubtedly be vigorously contested. The United States or Israel can strengthen their legal hand for possible future action by demonstrating good faith exhaustion of diplomatic alternatives. They can also strengthen it by continuing to work through the U.N. Security Council and with the International Atomic Energy Agency to substantiate authoritatively and credibly the threat of Iranian nuclear capability.
More generally, it is a mistake to judge international law by idealistic standards of whether it can either halt Iranian nuclear ambitions or hold back the United States or Israel from taking military action. It is also mistaken to dismiss it as irrelevant to either Iranian designs or American or Israeli decision-making about possible preemptive strikes. Even during – indeed, especially during – standoffs with catastrophic risks, security strategy and international law are inseparably entwined.
I'm wondering if the Bush Family is funding the Iranian Nuclear Program like they were funding the NAZIs before WWII. The Bush Family had JFK murdered via Hunt under the supervision of GH Bush. JFK wanted the decrease funding to the Military Idustrial Complex and eliminate it completely. JFK also wanted to rein in the FED. The MIC and the FED would have none of that so the NAZI Bush Family took care of business. RIP JFK.
Wow... Some wild accusations. Did you go off your lithium today sir?
Google it dolt.
JFK is the one who sent in the first large group of military instructors into Vet Nam, dummy. He was also the president during the Cuba missile crisis. Before you express you ignorance any more check you history. Two world wars, (1) UN police actions "Korea” and a lie from Johnson about Vet Nam, all had a democrat in the white house and democrats controlling congress.
Are you serious?!?!? International law!?? This piece is a joke. There has been no discussion about International Law because it is irrelevant you dolt!
THE POWER OF WHITE HATRED THE POWER OF WHITE RACISM THE POWER OF WHITE STUPIDITY
There is something operating in the minds of some white Romney’s supporters! That “something’ is white racism white hatred and white stupidity! The power of white racism is controlling the decision of some white voters! Some white Romney’s supporters are willing to over look that Mitt Romney. Was a one term Governor that rank 47 in job creation that left the state billions in debt! Some white Romney’s supporters are willing to over look that Mitt Romney. Join a racist cult religion that practice discrimination against black people. Also the Mormon religion participates in child molesting of 12 year old. Fifty year old Mormon men can marry as many 12 year old girls as they like. The religion also believe in baptizing the dead and magic underwear! White evangelical Christian are willing to vote against GOD principals purely base on white racism!
The so-call Christian evangelist Billy Graham has taken public steps to embrace Mitt Romney for President, removing Romney’s Mormon religion from a list of cults on his website. That had been there for years! And taking out an advertisement that appears to urge people to vote for Romney. Graham’s Evangelistic Association removed the word Mormon from its website, where it used to be listed along with Jehovah’s Witnesses and Scientology as a cult. Rev. Graham is a hypocrite and has shown his hatred for President Obama. Even questioning whether President Obama is a Muslim. Along with Pat Robertson Rev. Graham both had call the Mormon religion a cult! Both Graham and Robertson prove that white racism is more powerful then their so-call Christian beliefs!
White hatred has alway made white American vote against the country and other American base purely on HATE! It’s the very reason America is not going forward or recovering from the recession Republican cause! Some white Romney’s supporters are willing to over look that Paul Ryan. Participating in a meeting a day before President Obama took office! Planning to sabotage the country and the Presidency of President Obama. They discuss “Voter Suppression Laws” and suppressing any money that would give. American home owners relief that homes were underwater. In other words just like the terrorist on 9/11 these 15 white Republican plotted against the country. Remember Paul Ryan is a tax paid politician....so by being at the meeting Ryan was participating in treason!!!
The 15 Republicans were in a sombre mood as they gathered at the Caucus Room in Washington, an upscale restaurant where a New York strip steak costs $51. Attending the dinner were House members Eric Cantor, Jeb Hensarling, Pete Hoekstra, Dan Lungren, Kevin McCarthy, Paul Ryan and Pete Sessions. From the Senate were Tom Coburn, Bob Corker, Jim DeMint, John Ensign and Jon Kyl. Others present were former House Speaker and future – and failed – presidential candidate Newt Gingrich and the Republican strategist Frank Luntz, who organized the dinner and sent out the invitations.
White stupidity is the total fact that some white Americans are willing to vote against their own best interest! After hearing from Mitt Romney that he could careless about 47% of Americans!“STILL” some white Americans will vote for Mitt Romney and against 47% of Americans! After hearing that Mitt Romney’s five point plan “DOES NOT” add UP! Simple math would allowed any person with one working brain cell to know Mitt Romney “DOES NOT” add UP! Yet some white “STILL” are voting for Romney! After all the lying and Flip Flopping on issue after issue . Some whites are willing to vote for a pure liar and against the country and President Obama. Purely base on HATRED” of the first black President!
Your a racist so shut up u dolt.
// Both Graham and Robertson prove that white racism is more powerful then their so-call Christian beliefs! //
“Religion, by its nature(limits/boundaries) is 'very intolerant' of Artists. While 'knowledge' has -(no boundary)-, Religion 'must' by its very nature define limits, ...and it is by those 'limits' that the religion is recognized. All thought, action, or nature outside those limits/boundary is 'completely and sometimes violently' rejected. Of this the world has ample evidence.” – Lloyd Cata
Knowledge being 'defined' as the Art of Discovery(Aristotle)
Love to see people speak truth to power
The political and electoral battles going on in Israel and United States respectively is making it difficult for decision makers look beyond their horizon. The truth is Iran has nuclear capabilities which if their is a sudden regime change may lead to dangerous elements being in possession of such materials. Already Libyan rebels have given loads of stinger missiles to the FLA. I hope we learn our lessons and move against the Iranians.
Even if there will be no "sudden regime change" in Iran, the very fact of Iran having nuclear weapons will lead to a nuclear war. The reason is pretty simple: Iranian leaders have promised their own population and the neighboring Arab countries that Iran will obtain nuclear weapons and will use them to destroy Israel. If Iran will be allowed to obtain nukes its kleaders will be pressed to make true of their promises and if they'll start hesitating there will be no shortage of contenders who will demand these "traitors" and "Zi0nist agents" to be removed and replaced by those who will fulfill the promises made and the will of Allah and his Prophet. It should be obvious that Israel can not and will not sit idle waiting to be nuked and that it will take steps to assure that Iran will not obtain nuclear weapons.
"The Agenda of Inevitable Armageddon -vs- the Promise of Personal Paradise”, ...sponsored by the US Government", and paid for with the assets of the American people.
"Assets" defined as "blood & treasure".
Syrian supporters do so largely for their future goals. Russia, China, and Iran each have vested interests in Assad. China shares some ideological views with Assad and they haves politically supported each other. Russia and Iran have personnel, military, and financial investments there.
Thank you sincerely for making the 'legal' case in the 21st Century for the 'justification' for war. I have tried to express this very same argument, over many years, since my return from Vietnam.
Yet, as I look back over the 40 years, with miltary intervention after military intervention, I am humbly forced to conclude that, "the Law is no barrier to Ignorance". Blood & Treasure; America Stumbles Into The 21st Century.
To say I know what is 'to be' done would be ignorance on my part, but after watching this drama of American 'exceptionalism', ...to say the least I am sorely disappointed(too many good people have died uselessly). I will share with you my advise to Bush43 as he stood among the ashes after 9-11;
Chaucer – "The Kings Wife", ...but he sadly refused to "banish his ignorance" and proceeded in violation of 'the Law' and common sense.
To 'expand' on the articles premise of Law with regard to military action;
1) The US 'does not' recognize the International Criminal Court(...that's for 'terrorists')
2) The US 'does not' recognized the Law of the Sea Treaty(China -v- SE Asia)
3) http://goo.gl/22xFS – this is hardly recognized, in Law, as 'uplifting Humanity'.
The list goes on, I would be here all day! So I will not bore you further other than to leave you with this;
"Even the poor and illiterate know Injustice when they see it" – Lloyd Cata
*** "The Promise of Personal Paradise -vs- The Agenda of Ultimate Armageddon" – brought to you and sponsored by the US Goverment, with the assets of the American people ***
I submit that the countries that posses WMD's are the true terrorists on the planet. They posses the most risk to Humanity going forward. America should dismantle all WMD's thus setting a precedent for the joining of the planets people to further ourselves in the vast universe. Lets join Humanity in a quest to divide up the Universe. End the Wars Live Free
The nuclear dispute between the US and Iran sees the history of the Cold War repeat itself.
The author claimed that illegal military actions would be costly for an aggressor "in terms of military, political, and diplomatic repercussions". Well, there are rogue states, that don't care about what the international community thinks about them. They can live with the negative consequences.
Indeed, such precedents have been copied and exploited, yet the UN seems to be powerless or paralysed by the vetoing powers of the member states of Security Council.
Reblogged this on paulinaleyva.
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