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The Case of Iran's Nuclear Program Penn State Journal of Law & International Affairs Volume 2 Issue 2 November 2013 The Prohibition on the Use of Force for Arms Control: The Case of Iran’s Nuclear Program Mary Ellen O'Connell University of Notre Dame Law School Reyam El Molla Follow this and additional works at: https://elibrary.law.psu.edu/jlia Part of the Diplomatic History Commons, History of Science, Technology, and Medicine Commons, International and Area Studies Commons, International Law Commons, International Trade Law Commons, Law and Politics Commons, Political Science Commons, Public Affairs, Public Policy and Public Administration Commons, Rule of Law Commons, Social History Commons, and the Transnational Law Commons ISSN: 2168-7951 Custom Citation The Prohibition on the Use of Force for Arms Control: The Case of Iran’s Nuclear Program, 2 Penn. St. J.L. & Int’l Aff. 315 (2013). The Penn State Journal of Law & International Affairs is a joint publication of Penn State’s School of Law and School of International Affairs. Penn State Journal of Law & International Affairs 2013 VOLUME 2 NO. 2 THE PROHIBITION ON THE USE OF FORCE FOR ARMS CONTROL: THE CASE OF IRAN’S NUCLEAR PROGRAM Mary Ellen O’Connell and Reyam El Molla* In many discussions of Iran’s nuclear program, there seems to be an implicit assumption that states have a right to use military force to end the program. For example, the Institute for National Security Studies,1 an Israeli think tank, in an article titled, The Legality of an Attack against Iranian Nuclear Facilities, places emphasis on proving the necessity of an attack as a last resort but fails to indicate any accepted legal basis for resort to military force as an initial matter.2 In fact, international law does not permit the use of military force without United Nations Security Council authorization for arms control of any kind, whether to end a nuclear program, to end a chemical weapons program, or to prevent missile shipments. * Mary Ellen O’Connell, Robert and Marion Short Professor of Law and Research Professor of International Dispute Resolution, University of Notre Dame Law School, and Reyam El Molla, LL.M., University of Notre Dame Law School, 2012, human rights lawyer, Cairo, Egypt. 1 See INSTITUTE FOR NATIONAL SECURITY STUDIES, http://www.inss.org.il (last visited Aug. 29, 2013). 2 Robbie Sabel, The Legality of an Attack against Iranian Nuclear Facilities, 345 INSS INSIGHT 1 (2012), http://www.inss.org.il.cdn.reblaze.com/upload/(FILE)1339738543.pdf. 315 2013 Penn State Journal of Law & International Affairs 2:2 INTERNATIONAL LAW ON THE USE OF MILITARY FORCE At the very heart of the international legal system is Article 2(4) of the United Nations Charter.3 Article 2(4) generally prohibits the use of military force in international relations. It has only two express exceptions in the Charter and one implied exception in general international law. Expressly, states may use force under the terms of Article 51 in self-defense if an armed attack occurs.4 States may also use force if the U.N. Security Council authorizes it.5 Finally, some argue that, under customary international law, a state may use military force when invited by a government to assist in ending an insurgency.6 In 2001, the United States took the position that Afghanistan’s Taliban government was legally responsible for actions by Al Qaeda so that, under the law of self-defense, the United States had the right to use military force in Afghanistan following the 9/11 attacks. The use of force in self-defense in Afghanistan, however, ended in 2002 when a loya jirga of prominent Afghans selected Hamid 3 U.N. Charter art. 2, para. 4 states: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” 4 U.N. Charter art. 51 states: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense 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. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.” 5 U.N. Charter art. 39 states: “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.” Articles 41 and 42 state in part: “The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions . .[I]t may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security . .” 6 See Louise Doswald-Beck, The Legal Validity of Military Intervention by Invitation of the Government, 56 BRIT. Y.B. INT’L L. 189, 191-92 (1986), http://bybil.oxfordjournals.org/content/56/1/189.full.pdf+html. 316 2013 O’Connell & El Molla 2:2 Karzai to be Afghanistan’s leader.7 Since then the U.S. has been fighting at the invitation of President Karzai. Despite the fact that many in U.S. international security circles overlook these legal obligations, they remain the law. In 2005, the United Nations Charter provisions on the use of force were reconfirmed by all U.N. member states at the World Summit in New York. In 2010, states provided another show of support for Article 2(4) when a definition of the crime of aggression was formally added to the Rome Statute of the International Criminal Court (I.C.C.).8 In adding to the I.C.C.’s jurisdiction, the 122 states party to the Rome Statute indirectly confirmed their support for Article 2(4). Any serious violation of Article 2(4) is an act of aggression for which a national leader could face individual criminal responsibility.9 Even where a state has a right to use force based on self- defense, Security Council authorization, or invitation, the state resorting to force must also comply with any applicable rules of state responsibility,10 as well as the general principles of necessity11 and 7 See Carlotta Gall & James Dao, A Buoyant Karzai Is Sworn In as Afghanistan’s Leader, N.Y. TIMES, June 20, 2002, http://www.nytimes.com/2002/06/20/world/a-buoyant-karzai-is-sworn-in-as- afghanistan-s-leader.html. See also Mary Ellen O’Connell, Remarks: The Resort to Drones under International Law, 39 DENV. J. INT’L L. & POL’Y 585, 592 (2011). 8 See Rome Statute of the International Criminal Court, July 17, 1998, 37 I.L.M. 999, http://treaties.un.org/doc/publication/UNTS/Volume%202187/v2187.pdf. 9 See Amendments to the Rome Statute on the International Criminal Court, Jun. 11, 2010, C.N.651.2010.TREATIES-8 (Depositary Notification), http://treaties.un.org/doc/publication/CN/2010/CN.651.2010-Eng.pdf. See also Mary Ellen O’Connell & Mirakmal Niyazmatov, What is Aggression? Comparing the Jus Ad Bellum and the ICC Statute, 10 J. INT’L CRIM. JUST. 189 (2012). 10 On the law of state responsibility generally, see G.A. Res. 56/83, U.N. Doc. A/RES/56/83 (Jan. 28, 2002), http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/56/83&Lang= E and G.A. Res. 56/49, U.N. Doc. A/RES/56/49 (Jan. 22, 2002), http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/56/49&Lang= E. See also JAMES CRAWFORD, THE INTERNATIONAL LAW COMMISSION’S ARTICLES ON STATE RESPONSIBILITY: INTRODUCTION, TEXT AND COMMENTARIES (2002). 11 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226 (July 8) [hereinafter Legality of the Threat or Use of Nuclear 317 2013 Penn State Journal of Law & International Affairs 2:2 proportionality.12 Given these restrictions on the right to resort to force, the Israeli scholar Yoram Dinstein is correct when he says, “U.N. member states are barred by the Charter from exercising self- defense in response to a mere threat of force.”13 The possession or development of weapons, even weapons of mass destruction, cannot be classified as anything more than a threat. APPLYING THE RULES ON THE USE OF FORCE TO ATTACKING IRAN Soon after the adoption of the U.N. Charter, it might have been conceivable that the world would classify the possession of nuclear weapons as more than a threat. Such possession could have been deemed in law to be an armed attack. While conceivable, the plain fact is that the world has not concluded that the development or possession of nuclear weapons is the equivalent of an armed attack. Many experts suspect that Iran is intent on developing nuclear weapons. Concerns have existed for many years, but were heightened in April 2013 when Iran announced that it planned to install advanced centrifuges and a production unit at Natanz.14 A February 13, 2013 report published by the Wisconsin Project’s Iran Watch,15 estimates, on the basis of data supplied by the International Weapons].
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