Strike sooner or never: Preemptive strike on Iran legally dicier once UN lifts sanctions

Once preemptive strikes can be undertaken to block an imminent attack, broadening the definition of what is “imminent” to permit a strike even more in advance of a potential threat is less of a jump.

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July 15, 2015 05:40
3 minute read.

Netanyahu convenes security cabinet: Israel not bound by deal with Iran

Netanyahu convenes security cabinet: Israel not bound by deal with Iran

 
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Israel probably has until around mid-December to preemptively strike Iran’s nuclear program before it gets even harder to justify legally than Tuesday’s deal has already made it.

Of course, right now diplomatically, a strike seems unthinkable.

What does the Iran nuclear deal mean for Israel?But until mid-December, when the IAEA renders its “final assessment” of “all past and present outstanding issues,” as referred to in the around 150-page agreement, the UN will likely not have actually removed most sanctions.
Rouhani: It was the resistance that brought the other side to the negotiating table

As long as UN sanctions are in place, Iran’s history of violating the Nuclear Non-Proliferation Treaty, of UN resolutions and actions framing it as a violator, and of the failure of those actions to stop Iran’s push for the bomb is still the narrative.

Why does this matter? Some say that preemptive strikes are barred by international law from the outset, as only an armed attack activates the right of self-defense against an aggressor.

Countries that have carried out preemptive strikes in the past – like the US and Israel – largely base their actions on the concept that international law permits a preemptive strike to prevent an imminent attack, even if that attack is not yet in progress.

Once preemptive strikes can be undertaken to block an imminent attack, broadening the definition of what is “imminent” to permit a strike even more in advance of a potential threat is less of a jump.

This is especially true concerning nuclear weapons, which can essentially end the game if they are launched.

Still, most scholars find it dicey legally to push the timeline back too far, which leaves them with the problem of a covert nuclear weapons move catching Israel or another target country off-guard.

This is where UN resolutions could come into play.

The resolutions do not authorize a preemptive strike on Iran, nor does the current Iran deal. Far from it.

But some argue that legally the reason that individual nations are supposed to hold off from preemptive strikes is that the UN is supposed to handle collective security issues so that individual nations do not need to.

Some have argued that if the UN drops the ball persistently over a long period in protecting an individual nation from a security issue, then there is more justification for that nation to take preemptive action in self-defense.

There will likely be an initial UN resolution in the near future to set the stage for later sanctions removal.

However, until UN sanctions are actually removed and Iran’s violator status is reset by a second round of UN resolutions – likely around when the IAEA gives its report – Israel can still argue that Iran is a violator which the UN failed to stop, even according to its own standards.

All of that changes once sanctions are removed and Iran is no longer a presumed violator.

Also, until the second round of UN resolutions pass, there could be numerous instances of Iranian cheating or foot-dragging on specific obligations.

According to the Iran deal, a Joint Commission vote of the US, UK, EU, France, and Germany can override Iran, Russia, and China to snap sanctions back on within 24 days of Iran being caught carrying out violations, such as nuclear activities that were “undeclared.”

What if Iran gets caught, 24 days pass, and the five Western powers blink? If this occurs before the UN resolution, the Israeli argument would actually be stronger, because Iran would be in express violation of its most recent commitments, along with past UN resolutions.

Of course, the agreement views noncompliance as a reason to snap back sanctions, not for a sudden strike on Iran. But on the spectrum of legal justifiability, Israel would be better off making a preemptive strike than it would be after the UN resolution is passed.

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