The Israeli Aerial Raid Upon the Iraqi Nuclear Reactor and the Right of Self-Defense

• Author: THE IRAQI NUCLEAR REACTOR AND THE RIGHT OF SELF-DEFENSE Lieutenant Colonel Un Shoham
• Pages: 04

1. INTRODUCTION

   On dune 7, 1981, Iraeli Air Force F-15 and €-I6 aircraft bombed and compietely destroyed an Iraqi nuclear reactor under construetion, 12 miles south of Baghdad > The reactor was of French design and French Technicians were supervising its installation As a result of the attack, one French technician was reported killed.2

   On June 8. 1081 the Prime hlinister of Irsael. Mlenachern Begin, dunng a press ~onference,~claimed that the installation had been a threat to the security of the state of Israel because Iraq had intended to use it to manufacture nuclear bombs for u5e against Israel Prime Minster Begin emphasized that all the peaceful diplomatic measure3 had failed to stop th? Iraqis before developing the bomh Mr Begin maintained that the attack could not be further delayed because the reactor was soon in h? made operational. an attack subsequent to that e\ent *odd expose the residents of Baghdad to a radiation hazard

   In denying the Ivaeli argument that the attack was an exercise of a legitimate right of self-defense, Israel was condemned by the United States and other friendly governments, as well as by the

   Arab Moslem and communist countries On June 19. 1964, rhe United Nations Security Council unanimously adopted a re~olution "strongly condemning the military attack by Israel 8s a clear violrion of the charter of the Cnired Nations and the norm? of internalional conduct. 5

   The American press wai not receptive to the Israeli arguments and. generall) speaking. most reports and dispatches wrrr rritiral of the Israeli operation.6

   LV T hlailison and Sally V. !dallison both international law

   scholars not only concluded that the Israeli aerial attack was an act of aggression. but furthw itated' "The Middle East and posably the world now lives under the potential of nuclear obliteration brought on by the action? of the Gmernment of Israei.' Thir article ihaliengei that cmclusion

   11. SELF-DEFENSE IN CUSTOMARY INTERNATIONAL LAW

   The right of self-defense ii a fundamental right in even legal syitern. although it remains the goal of any community to restrict thr use of force b) individuals The concept of ieli-defmie was developed for cenruries by the international community and I-knonn ab an inherent right of any sovereign state The scope of lawful use of force by indiridual states in the internalional cornmunity, just as by an) orher individual. must be related to the legal machiner? for pacific settiements of di3potes

   The basic question concerns the conditions under which wrh d right might be invoked.

   In their authoritative treatise. Professors YcDougal and Feliciano expresied The view "The pnnc~pal requirement which the customary law of self-defense makes prerequisite to the iawful

   assertion of these claims are commonly summarized in terms of necessity and This approach, or vanations of it, is generally accepted by international legal scholars Io

   The degree of necessity IS the most important precondition to the use of force in the exercise of legitimate self-defense. In appraising the conditions of necessity, various factors, including the nature of coercmn applied by the opposing side, the relative size and power of the rivals, the nature of their objectives and the consequences If the objectives are achieved. the expectation of effective community intervention, and others." must be considered. Necessity must be "great and mrnediate."lz "direct and immediate,"'3 or "compelling and instant '"(

   This principle includes limitations on means and time. The means used must be confined to the removal of the danger and must be reasonably proportionate to the specific object. The action must not be continued after the danger has been elimmated.18 In other words, the rule of proportionality requires that the responding state's use of

   The other mdor requirement of self-defense is

   force not exceed the mtensity and magnitude reasonably necessari to affect its self-defense

   The key for appraising the justificacmn of using coercion in alleged relf-defense is the concept of 'reasonableness " The requirements of necessity and proportionality "can ultimately be subjected onl) to that most comprehensive and fundamental test of all law. reason^

   ablenesa in particular context ' ' I B Stated differently. "th? cenrral pmnr IS that a target state IS authorized to act unilaterally ~n self-defense when it reusonahly expect5 that It must use the military in*rrument of national pol~c) to preserve Its physical integrity and con-tinues exibtenw as an effective participant in the world community

   The initiai deriaiirn concerning the necesdty of using force in self-defense is made by the country claiming this right Given the technology of modern conventional or nuclear warfare. any state mui~ reapond very quickly to an unlawful attack or a threat against its ex istenre, Independence. or territorial mtegrit) In most C~SPS, a threatened nation will not be afforded the time to seek the approvalof the organized international cummunit) before acting in ielf-goal is to remove the dangei. because, ab Brierly eking1 authority to act from any outside hody may Ne\-ertheless. ~t 1s generally acmpted that the claim of the right of self-defense must be appraised and eialuarpd hy the external tidy of the world community The 5tate.b drtermina tion concerning the legal justification for 11s action cannot he final.>'

   although the consequences of delay and reliance on the international community must be a significant concern:

   The memtable time-lay between initiation of highly intense coercion and appropriate determination and mthorication by the general security organization, and the ever present possibility of the organization's failure to reach any determination at all, make such a recommendation [to get pnor permission of the organized community] potentially disastrous for defending states 21

   11. THE RIGHT OF ANTICIPATORY SELF-DEFENSE IN CUSTOMARY INTERNATIONAL LAW

   It is generally accepted and assumed that cu8tomary law permits anticipatory use of coercion in a situation of imminent danger.23 International law does not require a state to wait until it is actually attacked before taking measures of self-defense. "A state may defend itself by preventive means, if in Its conscientious judgment [such means are] necessary against attack by anather state, threat of attack, or preparation or other conduct from which an intention to attack may reasonably be apprehended."l'

   In appraising whether pre-emptive measures constitute legitimate seif-defense, the capability of weapons Involved, the reaction time, and the strategic situation should be appraised. However, the same requirements of necessity, proportionality and reasonableness of ac-tmn, as in the case of self-defense against actual armed attack, apply to anticipatory self-defense, as weii. In the case of pre-emptive violence. moreover, there LS "a customaly requirement that the expected attack exhibit so high a degree of imminence to preclude ef-

   "McDaugal & Feliciana x ~ p m note 0 at 218

   Wee Brownlie nipra note 16, a( 267 MeDougal& Fellciano. m,wa note 0, at 231 '~Werflake supra note 12 81 288

   fective reson by the intended victim to nowiolent modalme\ of

   One of the hest illustrations of the customary law a.ndardi for dn~ticipatory self-defense is the case of 7he Caroline In 1887 during the Canadian insurrection, the steamer Caroline tramported men and materials for the rebels from American territory into Canada across the Niagara River. The American government had appeared unable or unwilling to prevent this use of the vessel. On Decemher29, 1887, a British force from Canada crossed the Niagara. seized the steamer in the state of New York, set the vessel afire. and let it drift over Niagara Falls. During the skirmish. two American citizen, were killed lCThis incident became important mainly because of the letter from Secretary of State Daniel U'ehster to the British Ambassador responding to the British argument that the action wasjustified ar an act of self-defense In his letter. Secretary Webster stated the ronditions for the exercise of self-defense. "[njecessity of self-defense, instant overwhelmmg, leaving no choice of means and no moment for deliberation

   responsp ''25

   Those principles were generally accepted and were approved hy the lnternationai Military Tribunal at hremberg However. those requirements may be too restrictive far modern times It has been

   II will hr tor I+ LO 5hou alia that the local authorities of Canada ejen

   14 81 332 33

   "The Tribunal ,rated

   'It must be remembered that ~ve\enrireaction in foreign

   lerrltnri 13 justified onl) tn case of an in~tant and oremhelming nererrili lor ;elf defense leailng 110 choice of means and no moment far deliberation (The Caroline Larel ' 41 A J 206 (19171

   nhaerwd Ihat "the Ttandard of required necessity has been hahLt-rially cast in language so abstractly restrictive as almost. If read literally. to impo*e paralysis

   Even Mailison, critical of the Israeli attack, has disapproved of Webster's formula. "The formulation was probably unrealistically restrictive when stated in 1H41. In the contemporary era of nuclear and thermonuclear weapons and rapid mm11e delivery techniques, Secretary Wehster's formulation could resuit in national suicide if it [was] actually applied instead of merely repeated."3"

   .4pplicatlon of thi? formula to the actual practice of nations we likely find that virtually every use of force would have to be con-sidered unlawful coercion rather than the exercise of a legitimate right of ielf-defense JL

4. THE RIGHT OF SELF-DEFENSE UNDER THE CHARTER OF THE UNITED NATIONS

   The ham provisions of the United Nations Charter concerning resort to farce by individual states in thew international relations are found in Article? 2 and 61 Article 2(3) demands that the partiea to any international dispute seek a settlement by peaceful means Peaceful mean*, discussed in Article 33 of the Charter, include negotiation. inquiry...