Obama help with Israeli preemptive strike on Iran would violate international, US law

Article 51 of the United Nations Charter acknowledges the right of a member state to take military action in “self-defense” when responding to “an armed attack.” The charter does not, however, justify preemptive attacks in response to a buildup of military capacity (nuclear or otherwise) or much less a response to mere hostile intent. When the Senate ratified the UN Charter as a treaty in 1945, Article 51 became a part of US law by the terms of Article VI of the US Constitution.

In spite of these legal norms, President George W. Bush launched his shock and awe attack on Iraq in 2003 based on an assumption (later proved wrong) that the country harbored weapons of mass destruction. In doing so, he sent a powerful message that any nation should be allowed to attack another on the ground of presumed military capacity and/or hostile intent. Article 51 suffered a severe blow along with the citizens of Baghdad.

In a recent Los Angeles Times op-ed, Yale Law professor Bruce Ackerman reminds readers that the US joined in a UN Security Council condemnation of Israel’s preemptive strike on an Iraqi nuclear reactor in 1981, and that even the 1962 Cuban missile crisis failed to provoke a preemptive attack by the US.

If American adherence to Article 51 is to be restored, Mr. Obama should refuse to follow the precedent established by his predecessor, Mr. Bush. If the president is to honor his oath-of-office pledge to uphold the Constitution, he should refuse to be drawn into a war on Iran based largely on Israeli fears. Nuclear capacity and hostile intent fall far short of “armed attack.”

Every country has a vital stake in respecting the shared norms of international law. Without legal norms, violence has no limit. An America that okays preemptive strikes today opens itself to such attacks by other countries tomorrow.

Unless Obama clarifies in advance that only Israeli self-defense against an armed attack would trigger American participation, Americans risk being swept into another conflict that would violate both international and domestic law. The Israeli government and the American public should know where the US president draws the line, whatever color he gives it.

L. Michael Hager is the co-founder and former director general of the International Development Law Organization.

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