Let the 'Caroline' Sink! Assessing the Legality of a Possible Israeli Attack on Iranian Nuclear Facilities and Why the Traditional Self-Defense Formula is Incompatible with the Nuclear Age
The California International Law Journal, Vol. 18, No. 2, Spring 2010
18 Pages Posted: 22 Oct 2010
Date Written: October 21, 2010
This paper examines the legality of a possible Israeli pre-emptive attack on Iran's nuclear facilities. Various arguments are examined, including whether such an attack violates the prohibition on the use of force; whether such an attack is a legal exercise of self-defense; whether such an attack is allowed due to existence of a customary law exception or existence of a state of war between the two states; and whether such an attack can be viewed as international law enforcement. The analysis conducted in this paper demonstrates that under current conditions an Israeli pre-emptive attack on Iran's nuclear facilities cannot find convincing, legal support under any existing legal arguments.
This paper also examines whether traditional anticipatory self-defense criteria are suitable for the nuclear era. It is claimed that a strict interpretation of imminence is not suitable in the nuclear weapons age when states might face the threat of sudden and complete annihilation. Therefore, this paper suggests that the threat posed by a nuclear weapons and its means of delivery necessitates the relaxation of the traditional imminence requirement when assessing the legality of pre-emptive self-defense of a country facing a possible nuclear threat.
Lastly, the paper examines whether a possible attack can be deemed “illegal but justified”. Based on the idea that current self-defense rules seem incompatible with the nuclear age, it is claimed that Israel might view an attack on Iran's nuclear facilities as justified – even if not legal - as a call for international law development along with technological progress.
Keywords: Self-defense, Israel, Iran, Nuclear, Caroline Doctrine, pre-emptive attack
JEL Classification: K33
Suggested Citation: Suggested Citation