International legal scholar Louis René Beres, US Admiral (ret.) Leon Edney and US Lt Gen (ret.) Thomas G. McInerney have written an insightful article in Haaretz, looking at the current Iranian nuclear predicament and the various possible responses, focusing on the legality of a pre-emptive strike. They argue that the risk presented by a nuclear Iran is so great that a US strike is at least likely to be justifiable.
The Caroline Doctrine notes an implicit distinction between preventive war (which is never legal ), and preemptive war. Even the latter is not permitted merely to protect oneself against an emerging threat, but only when the danger posed is “instant” and “overwhelming.”
Using such a literal framework, it would first appear doubtful that the United States could now construct a current and compelling legal argument for preemption against Iran. This would be the case even if the planned American defense operation were limited meticulously and precisely to nuclear military targets.
Yet, we no longer live in the 17th, 18th, 19th or 20th centuries. Grotius, Vattel and those later jurists who were focused on the attack on the Caroline could never have anticipated the genuinely existential risks posed in the 21st century by a nuclear Iran. The permissibility of anticipatory self-defense is understandably much greater in the nuclear age. Today, waiting passively to absorb a nuclear attack could be clearly suicidal. A particular danger is posed by terrorist groups serving as surrogates: If not prevented from receiving nuclear weapons or fissile materials from patron states, such proxies (e.g., Hezbollah, Hamas, Al-Qaida ) could inflict enormous damage upon targets.
Israel is the country at greatest risk from Iranian nuclear weapons. Significantly, however, there is a long and venerated international legal tradition that Great Powers have commensurately great responsibilities.
The United States is presently the only country that has the operational capability to undertake a successful preemptive mission to remove Iran’s covert and illegal nuclear weapons program.
They observe that the Iranian mentality is such that it renders unrealistic any idea of Cold War style deterrence through détente.
In world politics, irrational does not mean “crazy.” It indicates, rather, that national self-preservation is valued less than certain other leadership preferences. With Iran, these preferences would be associated with various core religious beliefs and expectations.
There can be no foreseeable nuclear balance of terror in the Middle East. In the not-too-distant future, Iran could well justify using nuclear weapons against “infidels” or “apostates,” whatever the expected retaliatory consequences. In such conceivable cases, nuclear deterrence would be ineffective. Iran would become a suicide-bomber writ large; in other words, a “suicide-state.”
Meanwhile, military scholar Jonathan Rue has written in Foreign Affairs pointing out that the fuss over Iran’s nuclear program has been diverting attention from the Islamic Republic’s growing naval capabilities, a key pillar of the Iranian projection of power into the Middle East.
While much of the world’s attention focuses on Iran’s nuclear program, Tehran has made considerable progress on another security front in recent years — steadily increasing the reach and lethality of its naval forces. The goal by 2025, if all goes as the country has planned, is to have a navy that can deploy anywhere within a strategic triangle from the Strait of Hormuz to the Red Sea to the Strait of Malacca.
Since the end of the Iran-Iraq War in 1988, Iran has largely pursued a strategy of deterrence … But Iran’s navy is different. It is the best organized, best trained, and best equipped service of the country’s conventional military establishment. More than a nuclear weapons program, which would likely function as a passive deterrent, Iran’s navy is an active component of Iran’s activist foreign policy. The country’s leadership, including Supreme Leader Ayatollah Ali Khamenei, has repeatedly said that Iran’s navy is the critical foundation on which its long-term development and prosperity rests.
As he points out, the Iranian navy has been testing the water and to date has found little cause to retreat.
Evidence of Iran’s growing naval assertiveness is already on display. In December 2010, Iran participated in a training exercise with Djibouti during a port call there. Tehran sailed away from that engagement with a partnership agreement that could allow Iran to use Djibouti as a logistical base supporting a larger and persistent Iranian presence in the Gulf of Aden and the Red Sea. Two months later, for the first time since 1979, Iran sent two ships through the Suez Canal to the Eastern Mediterranean, inducing the ire of both Israel and the United States. Neither country retaliated, but Israel closely tracked the ships as they sailed along the Israeli coast.
… On numerous occasions in recent years, IRGCN small boats have come dangerously close to U.S. and Western naval ships operating in the Persian Gulf … But a recent change has increased the danger of escalation. Since 2005, Iran has been decentralizing command and control, not requiring subordinate commanders to get approval for all actions from senior leaders in Tehran. Thus, an IRGCN boat commander was able to take the initiative and capture a small crew of British sailors in 2007, a tactical action with strategic consequences. Should the IRGCN become more assertive, such engagements could spiral out of control.
Rue concludes by noting that the presence of the US Fifth Fleet in Bahrain does make the Iranian navy much less of a concern. However, were the US to leave the area, the Gulf Arab states would be hard-pressed to maintain any kind of opposition to Iranian naval dominance.
The importance of the US navy in warding-off Iranian naval hegemony in the Middle East means that the US is in effect already committed militarily to deterring Iranian power, whether it wants to be or not. With the nuclear deadline drawing ever closer and the costs of a military intervention mounting daily, the option of a pre-emptive strike should not be ruled out as a last resort, despite the undoubted dangers and costs.