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A Post-Script to My Essay

Greg Maggs

I welcome this opportunity from the Syracuse Law Review to reflect on my essay, How the United States Might Justify a Preemptive Strike on a Rogue Nation’s Nuclear Weapon Development Facilities Under the U.N. Charter.[1]  I have three matters to address: a mistake in my original essay; an item of new evidence that confirms, in a surprising way, a key aspect of my original prescription; and finally an item of new evidence that casts some doubt on the relevance of my analysis.

            First to recap: In the essay, I predicted that if the United States were to strike a rogue nation’s nuclear facilities, the United States would have difficulty justifying the attack under international law if it were to argue that it had acted in imminent self-defense (given that a nuclear attack is unlikely to be imminent) or that it had acted in anticipatory self-defense (given that most nations do not accept the anticipatory self-defense theory).  Instead, I pointed to widely reported, but often ignored, incidents showing that the United States and its allies are regularly subjected to conventional armed attacks and cease-fire agreement violations by rogue nations such as Iran and North Korea.  These armed attacks undoubtedly would justify some kind of response because no nation must simply tolerate attacks.  The question, though, was whether the armed attacks might justify military force against the main threat posed by Iran and North Korea, namely, their nuclear weapons development facilities.

            At least one significant mistake that I made in writing the essay was in composing its title.  If I had the chance to rename it, I would call the essay:  “An Analysis of How the United States Likely Would Attempt to Justify . . . .”  Having received a fair amount of feedback, not all positive, I realized that the original title did not convey my two primary goals.  One goal was to predict what the United States would argue (“[A]lthough I think that the chances that the United States actually will use preemptive force are slim, I predict that if the United States ever does strike Iran or North Korea, it will advance in one form or another the arguments presented in this paper.”).[2]  The other goal was to analyze and assess the strengths and weaknesses of those arguments (“Two objections likely would arise if the United States attempted to justify an armed attack on a rogue nation's nuclear weapons development facilities on grounds that the rogue nation had committed a conventional armed attack or cease fire violation similar to the ones described above. . . . .”).[3]  By adding the underlined words above, the revised title would convey those key objectives more clearly.

            The new and somewhat surprising evidence in support of the idea that conventional attacks by a rogue nation might lead to a military response from the United States comes from a newspaper article by Mark Mazzetti.[4]  The article describes intelligence reports based on interrogations of captured Shiite fighters in Iraq.  These reports indicated that Iran adopted a strategy of training Iraqi Shiites to carry out Iran’s objectives in Iraq.  The article says:  “American intelligence officials say they believe that since a handful of Iranian Revolutionary Guard operatives were captured in Baghdad in 2006, Iran shifted its strategy to bringing small groups of Iraqis into Iran.”[5]  Why was it important to avoid having Iranians implicated in the small scale attacks?  It was not to protect the Iranian agents themselves, but instead to prevent the United States from responding in self-defense by attacking Iran.  The article explains:  “The documents portray an Iranian strategy to use Iraqi Shiites as surrogates, in part to avoid the risk of Iranians being captured in Iraq.  In one of the intelligence reports, a prisoner tells his captors that ‘Iran does not want to fight a direct war’ with American forces in Iraq because Tehran worries that the United States would destroy Iran.”[6]

            This statement in the intelligence documents reveals that, regardless of what others might conclude about the analysis in my essay, at least some Iranians are thinking along the same lines as I was.  The Iranians are worried that the United States might use evidence of Iranian involvement in small scale conventional attacks to justify a response against Iran itself.  I am happy to hear of this development because it means that Iran is showing restraint.  The evidence also accords precisely with the advice I offered at the conclusion of my essay:  “Iran, North Korea and other so-called rogue nations . . . should rethink whether they should continue to engage in armed attacks on United States allies when those attacks expose them to a military response under Article 51.”[7]

            Finally, a major event has occurred which calls into question a basic assumption on which my essay relied.  I assumed that the international community would in some way require or, at least, expect the United States to provide a legal justification if it destroyed a rogue nation’s nuclear facilities.  This assumption followed both from the past general practice of requiring the United States to justify its armed attacks, and from the specific example of the United Nations’ condemnation of Israel after its 1981 destruction of Iraq’s Osirak nuclear facility.  Since writing the essay, however, reports have emerged that Israel destroyed a nuclear facility near al-Kibar, Syria, in 2007.[8]  Unlike in the past, and despite the similarity between this attack and the al-Kibar attack, neither the Security Council nor any other major international body formally questioned whether Israel had a proper legal justification for the strike, whether it was based on imminent or anticipatory self-defense or instead based on self-defense in response to a conventional armed attack.  This incident suggests—or perhaps I should say reveals—that it is not always necessary for a nation to defend, under international law, its justification for an armed attack on a rogue nation’s nuclear facilities.  Whether the United States could similarly evade legal scrutiny is not clear, but it certainly is not something I thought possible when writing my essay.  Although I do not agree with this view, it appears that the international community may have decided that, when it comes to the destruction of a rogue nation’s nuclear facilities, the ends may be justified regardless of what international law strictly permits.

[1]  Gregory E. Maggs, How the United States Might Justify a Preemptive Strike on a Rogue Nation’s Nuclear Weapon Development Facilities Under the U.N. Charter, 57 Syracuse L. Rev. 465 (2007).

[2]  Id. at 496.

[3]  Id. at 489.

[4]  Mark Mazzetti, Documents Say Iran Aids Militias from Iraq, N.Y. Times, Oct. 18, 2008, at A6, available at http://www.nytimes.com/2008/10/19/world/middleeast/19intel.html?_r=1&ref=markmazzetti.

[5]  Id.

[6]  Id.

[7]  Maggs, supra note 1, at 496.

[8]  See Erich Follath & Holger Stark, The Story of ‘Operation Orchard:’ How Israel Destroyed Syria's Al Kibar Nuclear Reactor, Der Spiegel, (Nov. 2, 2009), http://www.spiegel.de/international/world/0,1518,658663,00.html.