Over in the L.A. Times, Yale law professor Bruce Ackerman argues that a military strike against Iran’s nuclear facilities would violate both U.S. and international law. Relying principally on Article 51 of the U.N. Charter (which states that the Charter does not “impair the inherent right of individual or collective self-defence if an armed attack occurs”), his analysis can be boiled down to one sentence: Iran hasn’t launched an “armed attack” against America, so no America cannot strike Iran.
But this argument ignores a fundamental reality of the American–Iranian and Israeli–Iranian conflicts. There has, in fact, been an “armed attack” against the United States. Iran has been waging a low-intensity war against America and Israel — both directly and by proxy — for more than two decades. Iran’s Quds Force has planned and directed attacks on U.S. forces in Iraq and on Israelis in Israel and abroad. Iran has directly supplied our enemies with deadly weaponry in Iraq and Afghanistan, and is responsible for hundreds of American military deaths — including the Marine barracks bombing in Beirut and the Khobar Towers bombing in Saudi Arabia.
In other words, Iran attacked us long ago, and our forbearance to this point is neither required by international law nor does it bind us to continued forbearance. In fact, when a declared and hostile enemy escalates its military capabilities dramatically, that presents a direct challenge to American security and the security of our allies.
The Left is attempting to delegitimize the classical legal framework for the laws of war. In their view, military action is to be viewed as a set of discrete responses to discrete acts — more like law enforcement than warfare. In other words, Iran’s long history of terrorist acts don’t constitute casus belli (a justification for war), they merely represent just cause for, say, an attempt to capture the specific terrorists responsible. Yet international law has never required this level of national restraint, and such restraint is not required under the U.N. Charter.
Ackerman points back to Iraq, but he serves only to remind us that the emphasis on preemption doctrine in the run-up to the 2003 invasion obscured multiple additional grounds for directly striking Saddam Hussein’s regime, including his violations of the Gulf cease-fire accords and his continual armed attacks on American military personnel conducting operations under U.N. authority. Iraq was actively shooting at American pilots, and there are few better examples of an “armed attack” than, well, an actual armed attack.
Simply put, neither America nor Israel must wait for “imminent” nuclear attack before (finally) striking back at a nation that declared war on us more than two decades ago.
This article, co-authored by ACLJ Senior Counsel David French, is crossposted at National Review Online.
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