This chapter consists of a case study of the options regarding Iran’s nuclear program. It seeks to apply the experiences outlined above to an ongoing situation, a potential crisis, now faced by the international community. It is an ever-changing crisis, as most are. The experiences that form the basis for meaningful guidance—especially those growing out of the Iraq War—are also ongoing. Even more historically grounded experiences, such as the Israeli attack on the Iraqi reactor back in 1981, still have ramifications today, as we shall soon see. It is challenging, to say the least, to try to draw static conclusions from dynamic events, but all jurisprudence—especially common law jurisprudence—is dynamic and adaptive to changing circumstances and understandings.

No reasonable person can doubt that the Iranian government wants to develop a nuclear weapons capacity. Despite its claim that it is seeking only to expand its energy sources, the evidence to the contrary is significant, if not overwhelming. First, Iran has enormous oil reserves and access to other nonnuclear sources of energy. Second, the material it is trying to import is of the type necessary for the construction of nuclear weapons, not merely for nuclear energy. Third, several prominent Iranian politicians have acknowledged the military goals of the nuclear program. Hashemi Rafsanjani, the former president of Iran, has threatened Israel with nuclear destruction, boasting that an Iranian attack would kill as many as five million Jews. Rafsanjani estimated that even if Israel retaliated by dropping its own nuclear bombs, Iran would probably lose only fifteen million people, which he said would be a small “sacrifice” from among the billion Muslims in the world.¹ “He seemed pleased with his formulations.”² President Mohammad Khatami has threatened to use Iran’s missiles to destroy Jewish and Christian civilization: “Our missiles are now ready to strike at their civilization, and as soon as the instructions arrive from the leader ’Ali Khamenei, we will launch our missiles at their cities and installations.”³

Khamenei has in turn urged his military to “have two [nuclear] bombs ready to go in January [2005] or you are not Muslims.”⁴ On September 21, 2004, the Iranian military paraded its Shahab-3 missiles through the streets of Teheran. These missiles, which can reach Israeli and Iraqi cities, were draped with banners that read CRUSH AMERICA and WIPE ISRAEL OFF THE MAP.⁵ In late October 2004, the Iranian legislature rejected a proposal to assure peaceful use of nuclear technology, after which some lawmakers shouted, “Death to America!”⁶ In May 2005 it was disclosed that Iran had converted thirty-seven tons of uranium into gas, which “could theoretically yield more than 200 pounds of weapons-grade uranium, enough to make five crude nuclear weapons.”⁷ Several days later Prime Minister Tony Blair of Britain warned that he was prepared to seek sanctions from the UN Security Council if Iran proceeded with plans to resume uranium reprocessing. The foreign ministers of Britain, France, and Germany wrote a sharply worded letter warning that any attempt to restart Iran’s nuclear program “would bring the negotiating process to an end.” Iran responded defiantly that it “will definitely resume a part of its enrichment activities in the near future.”⁸

France, Germany, and Britain submitted a resolution to the board of the International Atomic Energy Agency (IAEA), the nuclear watchdog agency, referring Iran to the United Nations Security Council. At the end of September 2005, the IAEA passed the resolution, citing Iran for breaches of the Nuclear Non-Proliferation Treaty. The resolution does not specify when Iran would be referred to the Security Council, leaving some time for Iran to negotiate, though Iranian leaders have angrily denounced the resolution.⁹ About three hundred protestors, angry about the resolution, “hurled stones and smoke bombs at the British embassy” in Tehran.¹⁰

At a conference entitled “The World Without Zionism” in October 2005, Rafsanjani’s successor, Ahmadinejad, declared that Israel “must be wiped off the map.” He proclaimed that

[t]he establishment of a Zionist regime was a move by the world oppressor against the Islamic world. . . . The skirmishes in the occupied land are part of the war of destiny. The outcome of hundreds of years will be defined in Palestinian land.¹¹

Furthermore, Ahmadinejad warned that “[a]nybody who recognizes Israel will burn in the fire of Islamic nation’s fury,” and that any Islamic leader “who recognizes the Zionist regime means he is acknowledging the surrender and defeat of the Islamic world.”¹²

Steven R. Weisman of the New York Times reported that following Ahmadinejad’s remarks, thousands of Iranians marched through the streets of Tehran chanting “Death to Israel” and “Death to America.”¹³ The same article quoted a member of the Basiji militia as having said: “Ahmadinejad talks on behalf of all Iranians. We are ready to die for Palestine.” Weisman concluded that

[a]lthough Mr. Ahmadinejad’s comments about Israel were extreme, many diplomats point out that they reflected longstanding Iranian policy. “He said it more loudly, more directly, more forcefully and more offensively than anyone has said for a long time,” said one Western diplomat. “But he is essentially stating what is known to be Iranian policy.”¹⁴

Nor is it certain that Israel could eliminate the Iranian nuclear threat by making peace with the Palestinians or by any other actions it may take or refrain from taking. In the world of Islamic extremism, Israel gets blamed for every Muslim death, and virtually every Muslim problem, regardless of whether it had anything to do with causing it. On November 12, 2005, after the suicide bombings on three hotels in Jordan, the New York Times reported that many Muslims blamed Israel for the attacks, despite the fact that al-Quaida assumed responsibility for them: “While most Arabs have long viewed Israel as their enemy, the extent to which Israel weighs on the regional psyche and diverts attention away from social, political, religious and economic issues . . . cannot be ignored, many social and political analysts say. Blaming Israel is not just a knee jerk, they say; for many Arabs, it is their reality.” The article quoted a Jordanian political commentator as having said: “[T]his [scapegoating] became an easy way not to deal with our problems that are based in our own society.”¹⁵ Similarly, in many parts of the Muslim world, Israel was blamed for the suicide bombings in Egypt in 2004, for the assassination of the former Lebanese prime minister Rafik Hariri, and even for the terrorist attacks of 9/11.¹⁶ An Egyptian weekly magazine went so far to blame Israel for causing the tsunami in December 2004.¹⁷

For many Islamic extremists, the only solution to these problems is to wipe Israel off the face of the earth, and any Muslim leader who accomplished this would be regarded as a hero, regardless of the cost in Muslim lives.

This apocalyptic attitude, combined with an expectation of heavenly reward for killing millions of Jews and Americans, makes the effectiveness of the usual deterrent approach to nuclear threat somewhat less promising than if it were directed against a more secular regime. Some Muslim extremists, whether conventional suicide bombers or nuclear suicide bombers, will not be deterred by the threat of mere death and certainly not by sanctions. They welcome martyrdom as a necessary prelude to a paradise in which they will be rewarded for their martyrdom. This does not mean of course that a credible threat of material or economic damage will necessarily be ignored by all those in power. There are pragmatists and materialists even among the most fundamentalist zealots. Moreover, there are genuine moderates and reformers inside and outside the Iranian government, and their potential impact on Iranian nuclear policy cannot be overlooked. But in any worst-case scenario, which cannot be ignored especially by the potentially targeted state, the threatening statements made by those in power must be given considerable weight.

Estimates vary on the timing of Iran’s independent development of deliverable nuclear weapons. Some believe it is as far as three to five years away—if it does not receive outside help. As one retired CIA official has put it, “The big wild card for us is that you don’t know who is capable of filling in the missing parts for them . . . North Korea? Pakistan? We don’t know what parts are missing.”¹⁸ What is clear is that “its [Iran’s] work on a missile-delivery system is far more advanced” than its development of nuclear weapons and that it has plans to arm its missiles with nuclear, chemical, and/or biological warheads capable of mass destruction and the murder of millions of civilians. Whether there are people in positions of authority who are actually contemplating the suicidal deployment of such weapons is of course far less clear, though the events of 9/11 have made nothing unthinkable.

No democracy can afford to wait until such a threat against its civilian population is imminent. Both Israel and the United States should have the right under international law to protect their civilians and soldiers from a threatened nuclear holocaust, and that right must include—if that is the only realistic option—preemptive military action of the sort taken by Israel against the Iraqi nuclear reactor at Osirak in 1981, especially if such action can again be taken without an unreasonable number of civilian casualties.

Although the UN Security Council unanimously voted to condemn Israel’s attack on the Iraqi reactor, Secretary of State Condoleezza Rice has said that history vindicated the Israeli strike by preventing Saddam Hussein from gaining access to nuclear weapons, but she has declined to say whether the United States would support an Osirak type of attack by Israel against Iranian nuclear facilities. No two situations are ever exactly the same, and the considerations that must go into any military decision depend on many subtle factors. Secretary Rice did say, however, that the United States and its allies “cannot allow the Iranians to develop a nuclear weapon.”¹⁹ That appears to be the constant in the equation, with the variable being the means that might appropriately be employed to assure that neither the United States nor its allies will have to confront an Iran with a nuclear weapons capability (as we are already apparently facing a North Korea with such a capability).

Recent reports suggest that the United States may be selling bunker-busting bombs to Israel, weapons that could be used to destroy the underground nuclear facilities being used by Iran to protect its nuclear weapons work in progress.²⁰ Whether this information was leaked in order to bolster the deterrence threat as well as to enhance Israel’s actual capacity to destroy the Iranian nuclear facilities is unknown.

Despite recent statements about the propriety of Israel’s attack against the Iraqi nuclear reactor and the unacceptability of Iran’s developing a nuclear bomb, the American policy with regard to the Iranian nuclear program remains unclear. The undersecretary of defense for policy has said that “I don’t think that anyone should be ruling in or out anything while we are conducting diplomacy,”²¹ but the president has not spoken directly about the military issue. To the contrary, he has said that “diplomacy must be the first choice, and always the first choice of an administration trying to solve an issue of . . . nuclear armament. And we’ll continue to press on diplomacy.”²² That is certainly the correct view in any situation in which there is a heavy burden on those contemplating a military option. Former President Bill Clinton has commended President Bush for keeping “the military option on the table, but not pushing it too far.”²³ But the question remains: If all diplomatic options fail, as they did with regard to Iraq in 1981, must a democratic nation committed to the rule of law as well as to its own survival and the protection of its citizens wait for help from an unfriendly Security Council (some of whose members have supplied Iran with the materials it may now be using to build nuclear weapons), or may it—as a last resort—take preventive military action, as Israel did in 1981?

Today most reasonable people look to Israel’s surgical attack against the Osirak nuclear reactor as the paradigm of proportional preemption, despite the Security Council’s condemnation. (Many forget that Iran actually attacked the Iraqi reactor before Israel did but failed to destroy it; there was no UN condemnation of that attack.) If all the Iranian nuclear facilities were in one place and away from any civilian population center, it would be moral (and, under any reasonable regime of international law, legal) for Israel or the United States to destroy it if all nonmilitary options failed. But the Iranian militants have learned from the Iraqi experience and, according to recent intelligence reports, have deliberately spread Iraq’s nuclear facilities around the country, including in or near heavily populated areas. This could force Israel and the United States into a terrible choice: either allow Iran to complete its production of nuclear bombs aimed at their civilian population centers and other targets, or destroy the facilities despite the inevitability of Iranian civilian casualties. The longer they wait, the greater the risks to civilians, especially if they wait until an attack on the reactors might spread radiation.

The laws of war prohibit the bombing of civilian population centers (even, apparently, in retaliation for or deterrence of attacks on cities),²⁴ but they permit the bombing of military targets, including nuclear facilities during wartime. By deliberately placing nuclear facilities in the midst of civilian population centers, the Iranian government has made the decision to expose its civilians to attacks, and it must assume all responsibility for any casualties caused by such attacks. In the context of domestic law, when a criminal uses an innocent bystander as a shield against the police, and the police, in a reasonable effort to apprehend the criminal, unintentionally shoot and kill the innocent shield, it is the criminal who is guilty of murder, even though the police fired the fatal shot.²⁵ The same rule of culpability should apply in the military context. Israel, the United States, and other democracies place their military facilities away from population centers precisely in order to minimize danger to its civilians. Iran does exactly the opposite because its leaders realize that decent democracies would hesitate to bomb a nuclear facility located in an urban center.²⁶ Iran uses its own civilians as a deterrent against a preventive attack.

Israel (with the help of the United States) should first try everything short of military action—diplomacy, threats, bribery, sabotage, targeted killings of individuals essential to the Iranian nuclear program, and other covert actions—but if all else fails, it (or the United States) must have the option of taking out the Iranian nuclear threat before it is capable of the genocide for which its leaders assert it is being built. The chief of staff of the Israel Defense Forces put it this way: “We believe there is a chance of success when talking about the elimination of the Iranian capabilities of weapons of mass destruction, first of all using political and economic resolutions. From my point of view and my recommendation, this has to be used first of all. If not we have to be prepared, and I am talking about the Western community, to use other options in order to eliminate the Iranian capabilities.”²⁷

In June 2004 it was reported that “Israel already had rehearsed a military first strike on Iran. ‘Israel will on no account permit Iranian reactors—especially the one being built in Bushehr with Russian help—to go critical,’ an Israeli defense source told reporters. Prime Minister Ariel Sharon went on the record that Iran was the ‘biggest danger to the existence of Israel.’ Sharon left no doubt as to his meaning: ‘Israel will not allow Iran to be equipped with a nuclear weapon.’”²⁸

In early 2005 Israel’s foreign minister, Silvan Shalom, reiterated the point that if European diplomatic efforts fail, “Israel cannot live with Iran having a nuclear bomb.”²⁹ Again, that appears to be the constant, with the variables dependent on the success of international diplomacy, sanctions, or other forms of intervention. It is possible of course that neither Israel nor the United States has any current fixed intention to attack preventively Iran’s nuclear facilities but that both are issuing tough statements as part of an overall deterrent strategy.

According to an article in the January 24, 2005, issue of The New Yorker by Seymour Hersh, the United States is preparing for the possibility of a preemptive military attack against Iran’s nuclear weapon program: “The Administration has been conducting secret reconnaissance missions inside Iran at least since last summer. Much of the focus is on the accumulation of intelligence and targeting information on Iranian nuclear, chemical, and missile sites, both declared and suspected. The goal is to identify and isolate three dozen, and perhaps more, such targets that could be destroyed by precision strikes and short-term commando raids. ‘The civilians in the Pentagon want to go into Iran and destroy as much of the military infrastructure as possible,’ the government consultant with close ties to the Pentagon told me.”

According to this report, the United States has been conferring with Israel about a possible military preemption: “There has also been close, and largely unacknowledged, cooperation with Israel. . . . (After Osirak, Iran situated many of its nuclear sites in remote areas of the east, in an attempt to keep them out of striking range of other countries, especially Israel. Distance no longer lends such protection, however: Israel has acquired three submarines capable of launching cruise missiles and has equipped some of its aircraft with additional fuel tanks, putting Israeli F-16I fighters within the range of most Iranian targets.) They believe that about three-quarters of the potential targets can be destroyed from the air, and a quarter are too close to population centers, or buried too deep, to be targeted. . . .”

But there are some who doubt the benefits of a military approach:

. . . Shahram Chubin, an Iranian scholar who is the director of research at the Geneva Centre for Security Policy, told me [Hersch], “It’s a fantasy to think that there’s a good American or Israeli military option in Iran.” He went on: “The Israeli view is that this is an international problem. ‘You do it,’ they say to the West. ‘Otherwise, our Air Force will take care of it.’ ” . . . But the situation now is both more complex and more dangerous [than it was in Iraq in 1981], Chubin said. The Osirak bombing “drove the Iranian nuclear-weapons program underground, to hardened, dispersed sites,” he said. “. . . The U.S. and Israel would not be certain whether all the sites had been hit, or how quickly they’d be rebuilt. Meanwhile, they’d be waiting for an Iranian counter-attack that could be military or terrorist or diplomatic. Iran has long-range missiles and ties to Hezbollah, which has drones—you can’t begin to think of what they’d do in response.³⁰

In January 2005 I asked a former very high-ranking Israeli intelligence official if an Osirak type of preemptive attack was feasible against the Iranian nuclear program. He told me that any such attack would have to be very different from the surgical air attack of 1981. “It would be more difficult, because it would have to be multifaceted. If it were to be carried out, it would be something unprecedented in military history.” He also told me that “Israel should not bear the burden alone because the development of an Iranian nuclear rocket would endanger many other countries as well.” He said that the United States would be particularly vulnerable to nuclear terrorism if an Iranian nuclear bomb found its way into the hands of Islamic terrorists.

The issue is made even more complex by the internal dynamics of Iranian society, which is deeply divided between the religious zealots now in control and a secular (or at least somewhat more secular) minority (or majority, no one really knows). New York Times columnist Thomas Friedman reports that if a free and fair election were held in Iran, it might go against what many Iranians regard as the current despotic leadership. But in June 2005 Mahmoud Ahmadinejad, “the ultraconservative mayor of Tehran,”³¹ was elected president of the country. In an upset, he defeated Ali Akbar Hashemi Rafsanjani, the former president of Iran, who was regarded as the “more moderate” candidate³² despite his immoderate views on nuclear war with Israel. Ahmadinejad is the man who threatened to wipe Israel off the map. The problem is that, according to some experts, there is no division within Iran on its right to develop nuclear weapons: “[T]he nuclear ambition in Iran is supported across the political spectrum, and Iranians will perceive attacks on these sites as attacks on their ambitions to be a major regional player and a modern nation that’s technologically sophisticated.”³³

Two Iranian human rights activists have argued that “for human rights defenders in Iran, the possibility of a foreign military attack on that country [by the United States or Israel] represents an utter disaster for their cause.” They worry that “the threat of foreign military intervention will provide a powerful excuse for authoritarian elements to uproot these [nascent human rights groups] and put an end to their growth.”³⁴ But they neglect entirely the threat posed by a nuclear Iran. Demanding that Israel and the United States put the human rights of Iranians ahead of the lives of their own citizens and soldiers is both naive and selfish—unless the unexpressed assumption is that if human rights were to become strengthened in Iran, the threat of nuclear weapons would diminish, as it almost certainly would. Still, the likelihood that the human rights movement would become strong enough soon enough to eliminate the nuclear threat is very slight. I put this question to Israeli Knesset member Natan Sharansky when he spoke at the Harvard Kennedy School in February 2005. Sharansky had made a strong case that democracies do not attack other democracies and that the best long-term approach to Iran is to help strengthen its human rights movement. He also believes that the current leadership of Iran is determined to develop and use nuclear weapons against Israel, and he seems to agree with the Iranian human rights activists that a foreign attack might weaken the human rights movement. Much will depend on timing. How quickly will the mullahs get their nuclear bomb? How quickly will the dissidents increase their influence?

Moreover, an Israeli planner has told me that in light of the endemic instability in Iran, Israel would not tolerate nuclear weapons in that country even if moderates, with no intention of using them aggressively, were to assume control. “Moderate control is temporary, but nuclear weapons in Iran would be permanent,” the Israeli said. In addition, there is always the risk that Iranian nuclear weapons could fall into the hands of Hezbollah or other terrorists who work closely with Iranians. The Israeli position, as well as the American view, still seems to be that regardless of the internal dynamics of Iranian politics, the constant remains that no nuclear weapons will be tolerated regardless of who is in charge.

Thus the likelihood that this issue will be resolved internally is slim at best, but internal dynamics should not be ignored. If there were to be an internally generated (or mostly internally generated) regime change within Iran, that might not diminish the government’s desire to become a nuclear power, but it could diminish the dangers posed by its access to nuclear weapons. A more secular, democratic regime—or one less belligerent toward the United States (and thus possibly toward Israel)—might be more tolerable to the United States and Israel than the suicidal religious extremists who would currently control any nuclear weapons developed or obtained by Iran. A new regime might also pose a smaller risk of having such weapons fall into the hands of terrorists, but it would not eliminate all the risks.³⁵

There are of course no guarantees, and all this is a matter of degree and probability. But the risks of a preemptive attack are so considerable that these probabilities and subtle matters of degree must be factored into any calculation of the costs and benefits of every available option. Even if the United States and/or Israel have the legal and moral right to act preemptively against the development of an Iranian nuclear weapon, it does not necessarily follow that they should exercise that right by means of a difficult and risky military strike that might set back any nascent reform movement by uniting all (or most) Iranians against the external threats posed by the United States and Israel.

There are some, however, who argue the opposite: that the destruction of the Iranian nuclear capacity would weaken the mullahs and strengthen the hands of dissidents. No one can be certain what the effects of a successful or failed preemptive attack would be, except that the law of unintended consequences would rear its always unpredictable and often ugly head.

As of now, it is unclear whether the United Nations, the International Atomic Energy Agency, the European Community, or anyone else is making significant progress in stopping the Iranian nuclear weapons program, which has been assisted by several nations, including France, Germany, Russia, and Pakistan. Several of these countries, which have profited enormously from doing dirty business with Iran, seem less than anxious for a confrontation with their trading partner. Diplomacy appears to be delaying certain aspects of the program, but for how long no one can be certain. American indecision—a New York Times headline of September 21, 2004, read BUSH AIDES DIVIDED ON CONFRONTING IRAN OVER A-BOMB—seems to be encouraging the Iranians to speed up their program, so as to be able to deter a preemptive strike by threatening a counterstrike with nuclear weapons. During the U.S. presidential election campaign of 2004, Hasan Rowhani, the head of the Iranian Supreme National Security Council, said he was hoping that President Bush would be reelected because his administration was doing little to prevent Iran from developing its nuclear program. He said that despite President Bush’s “hard-line and baseless rhetoric,” he had not taken “in practical terms” any “dangerous actions” against the mullahs or their nuclear program.³⁶ Perhaps the disclosures regarding Pentagon planning for a possible attack were intended to counter this perception and to increase the pressure on Iran. The situation may soon reach crisis proportions. Yet there is certainly no consensus among international law scholars about the legality, propriety, morality, or wisdom of a preventive attack on Iran’s nuclear facilities.

There is not even consensus on the factors that should be considered in making such a decision, as we shall see in the next chapter.³⁷

Were the nightmare scenarios of a nuclear mass casualty attack by Iran (or by a terrorist surrogate like Hezbollah) to occur because of the failure to act by nations capable of preventively destroying Iran’s nuclear capacity, we may someday hear an Iranian mass murderer echo Goebbels’s bewilderment about why the World War I victors had not prevented Nazi Germany from arming. In retrospect, the bewilderment Goebbels expressed sounds like an apt warning, but in prospect—without any certain knowledge of how the Iranian situation will play out—it is only one of many historical lessons from which to learn.

In the end, any decision with regard to the Iranian nuclear program will probably be based less on international law than on the practical, military capacity of those nations most at risk—the United States and Israel—to destroy the Iranian reactors without undue civilian casualties and other costs.^* It will also depend on whether the international community demonstrates a capacity to confront threats of this kind by collective action. It will not depend on any widely accepted jurisprudence of preemptive or preventive action, because as we shall see in the next chapter, no such jurisprudence as yet exists. Among the questions posed in the coming chapter is whether any jurisprudence—no matter how well conceived or widely accepted—can really be expected to influence the actions of nations that believe themselves to be under the gun, especially the nuclear gun. The answer to this question as well as the outcome of the Iranian situation remains unresolved at the time of this writing and is likely to remain uncertain in the foreseeable future.

^* On November 13, 2005, the New York Times reported that a stolen Iranian computer “showed a long effort to design a nuclear warhead,” and is the “strongest evidence yet that . . . the country is trying to develop a compact warhead to fit atop its Shahab missile, which can reach Israel and other countries in the Middle East.” William J. Broad and David E. Sanger, “Relying on Computer, U.S. Seeks to Prove Iran’s Nuclear Aims,” New York Times, November 13, 2005, p. 1. On December 3, 2005, the New York Times reported that Russia was selling Iran an antiaircraft missile system that “would complicate a potential airstrike by the United States or Israel on Iran’s Bushehr nuclear power plant, which Russia is helping to build.” Andrew E. Kramer, “Russia to Sell Antiaircraft Missiles to Iran in Billion-Dollar Deal,” New York Times, December 3, 2005, p. A10.