Challenging International Law: Israeli attack on Iraq´s Osiraq Nuclear Reactor

Autor: Franklin Murianki

Originally Published at Peace and Conflict Monitor on: 07/01/2010

 

Security Council Consideration of a Complaint by Iraq, 8 June 1981

FACTS

In 1981, Israeli Air Force (IAF) fighter pilots flying F-15s and F-16s under instruction from Israeli Defense Force (IDF) carried out an attack against the Osiraq nuclear reactor located in Iraq in the so-called “Operation Babylon.” This may have killed Iraq’s nuclear capabilities in the short-term.

This act raised a furore in the international community and jurists alike, challenging the legality of the aforementioned attack. Whether the attack constituted a destabilization in the global order of peace and security was up for deliberation at the United Nations Security Council (UNSC).

Consequently, United Nations Security Council Resolution (UNSCR) procedures were undertaken according to the usual diplomatic protocol.

RELEVANT LAWS

The legality of this attack is governed by international law, in particular the UN Charter and the norms of international conduct. The prohibition of the use of military force is a valid customary international law norm and it is enshrined in the United Nations Charter. Article 2, paragraph 4, of the Charter provides that “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.”[1]

Article 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.[2]

These two articles of customary international law expressly limit the use of force in international relations of states. The exception being in Article 51 which applies the case of self-defense– to be legal, the force exercised must be strictly limited to self defense. These rules are binding as they are generally accepted rules or opinion juris.

Under article 51, a victim of an armed attack may use force to defend itself, and others may join to use force in collective self-defense of the victim, pending Security Council deliberation. Therefore, an armed attack is a prerequisite for self-defense under this dictum. However, different interpretations arise on whether an armed attack is to occur first or whether a pre-emptive strike can be considered necessary because of an imminent attack and the urgency of self-defense. For example, in the Caroline Case[3] the right of self-defense is upheld by the International Court of Justice as there was imminence of attack and urgency of self-defense.

Legal Reasoning of Parties:

Israel:

The state of Israel has the elementary duty to protect its citizens. It was exercising its inherent and natural right to self-defense as understood in general international law and well within the meaning of Article 51.The Israel representative, while quoting international law scholars, questioned whether a state should allow its assailant to deliver its first and final blow and whether a state should wait until it is too late before it may defend itself.

The Israel government maintains that the attack was planned only when they learned of the completion of the Osiraq reactor was a month ahead. They argue the attack was undertaken on Sunday late in the day; hence the workers, technicians and diplomats would not be on the site, albeit a few. They considered other reactors in Iraq, however these reactors were not possible targets, as the reactors were operational and would realize substantial amounts of radiation if attacked. Israel considered it took all relevant precautions.

Tunisia

Tunisia argues that according to the definition of aggression in General Assembly resolution 3314(XXIX) states: bombardment of the armed nation of a state against the territory of another State, regardless of a declaration of war, constitutes an act of aggression. The representative declared that Israel considerations are not founded on generally-accepted international rules based on principle and law.

UK

Armed attack in such circumstances cannot be justified. It constitutes a grave breach of international law. The government argued that Iraq had signed the Nuclear Non-Proliferation Treaty (NPT)and accepted International Atomic Energy Agency (IAEA) safeguards while Israel had not. It was an unprovoked attack to be condemned as the manufacturing of energy through nuclear sources is not totally abhorrent. The argument of self-defense made by Israel was not sound, as there was no armed attack on its soil to warrant self defense. Also, there was no instant or overwhelming necessity for self-defense. The act was a violation of Iraq sovereignty.

USA

The US opposes the IAEA resolution that is referred in the UNSCR. Israel actions violated the UN Charter only to the extent that Israel did not exhaust peaceful means for the resolution of the dispute. US reservations do not hinder it from its determination to Israel security commitments and determination to work with all governments if the region.

IRAQ

The UN charter prohibits the use of force except in self-defense. The Charter obliges members to submit to the Council any dispute dangerous to international peace. If an armed attack is imminent then it could bring the case within Article 51 and the Caroline Doctrine.

United Nations Security Council Position

The Security Council Resolution adopted the following:

• A strong condemnation of the military attack by Israel.
• Israel is required to refrain from future acts of threat.
• A reassertion of Iraq’s sovereign right and all other states to the development of nuclear technology.
• A statement that Israel should immediately place its safeguards with IAEA.
• Iraq’s entitlement to appropriate redress.

Critical Analysis

The attack on the Osiraq nuclear reactor by IAF contravenes international law principles of refrain from use of threat of force as per Article 2(4) of the UN Charter as well as Article 51.The self-defense doctrine that Israel argues does not apply. Firstly, there was no armed attack on Israel to constitute self-defense. Secondly, Iraq nuclear threat was not imminent and necessary to constitute self-defense. In customary international law, anticipatory self-defense has its origins in the Caroline case. The Caroline incident represents the agreement of British and American officials, the Doctrine states “that the use of defensive force is permitted when the necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation.” Therefore, rules for anticipatory self-defense are imminency, necessity, and These elements were all lacking in this case of Israel’s military attack on Iraq.

The gravity of nuclear attack on Israel is not underestimated, as a first strike would have been a fatal blow and Israel and may not have been in the position to retaliate. However, the production of a nuclear weapon from the Osiraq reactor would have taken from 5-10 years minimum considering that Iran had damaged it by aerial attack in 1980 during the Iraq-Israel.

In other sources, Israel argues that because Iraq had not signed the 1949 Armistice Agreement and did not recognize the state of Israel, technically they were in a state of war and an armed attack was not against international law.[4] The aggressive foreign policy of Iraq towards its Persian, Arab and Israel neighbors did not augur well for the fearful Israel.

Counter arguments insist that the Israel Prime Minister was threatened by internal problems and a nearing election and hence had to solidify his political position and as well appease Israelis that were generally fearful of Saddam Hussein’s irredentism and aggressiveness.[5] As per the Begin Doctrine, “Israel would not tolerate any nuclear weapons in the region[6] served as an ideological foundation for the actions undertaken by the IAF.[7] This goes to show that domestic interest still prevails on the law of the use of force and is mainly due to the lack of authoritative and constraining interpretation of the UNSCR.

Israel has a policy of nuclear ambiguity, as the country has not officially admitted to having nuclear weapons, and therefore if it actually has these weapons, they are not under the scrutiny of IAEA as they have not signed the NPT. This is clearly a contravention under international law.

Lastly, the US and UK condemnation of the attacks on Osiraq by Israel, as going against international law, sharply contrasts the 2003 unilateral invasion of Iraq by the US and UK on the premise that the ruling regime had acquired WMDs which they would use on the Western world or sell to “terrorists.” The world political environment in 1981 consisted of the Western states arming Iraq to invade Iran, which had overthrown the Shah regime through an Islamic revolution, and installed an Islamic state. Legitimization of the use of force can here again be considered as only based on domestic interests.

The broad interpretation of the doctrine of self-defense to include anticipatory and preemptive strike continues at the great advantage of powerful states. The United Nations has no major implementing authority and merely condemns countries for contravening international laws while armed conflict and aggression continue to hurt civilians and unarmed persons. Moreover, the UNSC missed the opportunity to give a clear and definitive interpretation of legal self-defense.

Israel’s repeated acts of aggression on sovereign states even after this UNSCR beg the question of enforceability of Security Council resolutions on powerful states.

To justify using force as anticipatory self-defense, a state must show a reasonable belief that an armed attack is imminent.

Is might right? How efficiently and effectively can war be limited and constrained by international law?

Footnote:

[1] United Nations Resolutions. Series 1, Resolutions Adopted by the General Assembly (KZ5006.2.D56). This twenty-four volume set includes all resolutions of the General Assembly from 1946 to 1986.Retrived from http://www.un.org/en/documents/charter/chapter1.shtml on 3/5/2010.

[2] Ibid

[3] British forces crossed the Niagara River, therefore entering the United States, and preemptively attacked a U.S. vessel allegedly aiding insurrectionist movements in Canada.

[4] Peter S. Ford, S.P.,Israel’s Attack On Osiraq: A Model For Future Preventive Strikes?.INSS Occasional Paper 55. (Colorado: USAF Institute for National Security Studies: USAF Academy Colorado, 2005).

[5] Ibid.

[6] Quoted in Avner Cohen, “The Lessons of Osirak and the American Counter proliferation Debate,” in International Perspectives on Counter proliferation, ed. Mitchell Reiss and Harald Muller (Washington DC: Woodrow Wilson Centre for international Studies, 1995) 85

[7] Ibid

Bio: Franklin Murianki is an MA candidate at the University for Peace