The 1981 Israeli bombing of the Iraqi Osirak nuclear reactor, on the other hand, was widely condemned by the international community.    The Israelis sent a number of aircrafts into Iraqi airspace to bomb Osirak, which was near the final stages of construction.  According to the Israelis, “the pilots’ mission was to destroy it.  They executed their mission successfully.”    Israel defended its actions on the grounds of an Article 51 right to self-defense.  The UN Security Counsel debates subsequent to the attack reveal that Member States believed that the threat posed to Israel by the Iraqi reactor was not yet an imminent one.  Thus, the Israelis were the aggressors against Iraq and failed to invoke a recognizable right to anticipatory self-defense.  Subsequently, the Security Counsel passed Resolution 487, which “strongly condemn[ed] the military attack by Israel in clear violation of the Charter of the United Nations and the norms of international conduct.”    The Resolution also called upon Israel to place its nuclear facilities under International Atomic Energy Agency (IAEA) supervision and “fully recognize the inalienable sovereign right” of all States to develop their economy through the use of peaceful nuclear development.  

The UN Security Counsel debates following these events highlight the opinion juris regarding the level of an armed attack giving rise to a right to self-defense.  As the International Court of Justice (ICJ) stated in 2003, in the Case Concerning Oil Platforms, in order for a State to invoke an Article 51 right to self-defense, it has the burden of proving that an armed attack against it is imminent or occurring.  The question of imminence is one of fact.  If a State fails to satisfy its burden of proof, a presumption rises against it as the aggressor State.  Depending on the level of the attack perpetrated by the now aggressor State, it may itself be subject to an Article 51 self-defense argument by the victim State.  

In its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the International Court of Justice (ICJ) stated that the Court could not lose sight of the “fundamental right of every State to survival, and thus its right to resort to self-defence, in accordance with Article 51 of the Charter, when its survival is at stake.”  

The “Bush Doctrine” espoused by George W. Bush after the September 11, 2001 attacks, extends the ideas presented in the Advisory Opinion past the point of legality.  The Doctrine states that America will use preemptive self-defense to forestall potential threats to America’s security from emerging.  Terrorists armed with nuclear weapons, the argument goes, are a threat so severe as to warrant a first-strike before the threats have a chance to materialize.   This argument is best described as the universally rejected “preventive” self-defense argument.

The current standoff with Iran is much more analogous to the Osirak situation than the Six Day War.  There is no imminent or occurring armed attack by Iran against the United States or its allies.  This would be true even if Iran were to actually develop nuclear weapons.  This doesn’t mean that the world is powerless to stop Iran from developing nuclear weapons or to disarm it in the event that it succeeded in developing them.  In such an event, the UN Security Council could authorize the use of force against Iran.  Or the world could choose to live with yet another nuclear-armed state (India, Pakistan and North Korea haven’t destroyed the world yet).  But the unilateral resort to preemptive military force would shatter the UN system.  And it would clearly be illegal.

— Kassem Dakhlallah is a partner with Jaafar & Mahdi Law Group, P.C.  His practice focuses on complex litigation, including class actions, representative actions, commercial litigation, civil forfeiture and personal injury. He can be reached at (313) 846-6400 and kassem@jaafarandmahdi.com.