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Why not get law and politics right in Iran?
Santa Barbara, CA - In his important article in the New York Times on March 17, 2012, James Risen summarised the remarkable consensus of the intelligence community in the United States that Iran abandoned its programme to develop nuclear weapons in 2003 and no persuasive evidence exists that it has departed from this decision.
It might have been expected that such news - based on the best evidence on which billions was spent due to sensitive security issues - would produce a huge sigh of relief in Washington and Tel Aviv. On the contrary, it has been totally ignored, including by the highest officers in the government, and the opposite reality has been confirmed.
The US president has not even bothered to acknowledge this electrifying conclusion that should have put the brakes on what appears to be a slide toward a disastrous regional war.
We must insistently ask "why" such a prudent and positive course of action has not been adopted or at least explored. And we must tentatively answer that there must be some reason other than the supposed fear of Iran possessing a few nuclear bombs that explains the war fever, but what?
No credible evidence
Given that the American debate and Israeli pressure proceeds on the basis of the exact opposite assumption - as if Iran's quest for nuclear weapons is a virtual certainty. The contrary finding that it is a high probability that Iran gave up its quest of nuclear weapons almost a decade ago is quite startling and is opposed by no credible evidence.
Listening to the Republican presidential candidates or Netanyahu and even to President Obama makes it still seem as if Iran is without doubt hell-bent on having nuclear weapons at the earliest possible time.
With such a misleading approach, the only policy question being posed - and it is a false one - is whether to rely on diplomacy backed by harsh sanctions to achieve the desired goal or that only an early attack to stop Iran from crossing the nuclear threshold. Because Obama prefers for now the diplomatic option he is presented by supporters as a "moderate" and criticised by the extreme war hawks as an "appeaser".
It seems perverse that this public debate on policy toward Iran should be framed in such a belligerent and seemingly wrongheaded manner. After all, the US was stampeded into a disastrous oil-driven war against Iraq nine years ago on the basis of deceptive reports about its supposed stockpile of weapons of mass destruction, trumped up exile allegations and media hype.
I would have assumed that these bad memories would make Washington very cautious about drifting toward war with Iran, a far more dangerous enemy than Saddam Hussein's Iraq.
It would seem that at present, the politicians are distrustful of reassuring intelligence reports and completely willing to go along with the intelligence community when it counsels an unlawful and imprudent war as "a slam dunk".
Reinforcing this skepticism about Iran's nuclear intentions is a realistic assessment of the risk posed in the unlikely event that the intelligence community's consensus is wrong and Iran after all succeeds in acquiring nuclear weapons.
As former heads of Mossad and others have pointed out the existential threat to Israel even then Iran’s threat would still be minimal. It should be obvious that Iran's few bombs could never be used against Israel or elsewhere without producing an annihilating response. There is absolutely no evidence that Iran has any disposition to commit national suicide.
There is a further troubling aspect of how this issue is being addressed. Even in the Risen article it is presumed that if the evidence existed that Iran possesses a nuclear weapons programme, a military attack would be a permissible option.
Such a presumption is based on the irrelevance of international law to a national decision to attack a sovereign state and a silent endorsement of "aggressive war" that had been supposedly criminalised back in 1945 as the principal conclusion of the Nuremberg Judgment.
Better policy options
This dubious thinking has gone unchallenged in the media, in government pronouncements and even in diplomatic posturing. We need to recall that at the end of World War II when the UN was established, states agreed in the UN Charter to give up their military option except in clear instances of self-defence. To some extent, over the years, this prohibition has been eroded, but in the setting of Iran policy, it has been all but abandoned without even the pressure of extenuating circumstances.
Of course, it would be in some respects unfortunate if Iran acquires nuclear weapons given the instability of the region and the general dangers associated with their spread. But no persuasive international law argument or precedent is available to justify attacking a sovereign state because it goes nuclear.
After all, Israel became a nuclear weapons' state secretly decades ago without a whimper of opposition from the West. And the same goes for India, Pakistan and North Korea's acquisition of weapons which produced only a muted response that was soon dropped from sight.
There are far better policy options that are worth considering, which uphold international law and have a good chance of leading to enhanced regional stability. The most obvious option is containment that worked for decades against an expansionist Soviet Union with a gigantic arsenal of nuclear weapons.
A second option would be to establish a nuclear weapons free zone for the Middle East, an idea that has been around for years and enjoys the endorsement of most governments in the region, including Iran.
Israel might seem to have the most to lose by a nuclear-free zone in the Middle East because it alone currently possesses nuclear weapons. And Israel would benefit immensely by the reduction in regional tensions and probable economic and diplomatic benefits, particularly if accompanied by a more constructive approach to resolving the conflict with the Palestinian people.
The most ambitious and desirable option, given political credibility by President Obama in his Prague speech of 2009, expressing commitment to a world without nuclear weapons, would be to table a proposal for complete nuclear disarmament on a step-by-step basis.
Each of these approaches seem far preferable to what is now planned, prudent, accord with common sense, show respect for international law, a passion for the peaceful resolution of conflict and at minimum, deserve to be widely discussed and appraised.
As it is, there is no legal foundation in the Non-Proliferation Treaty or elsewhere for the present reliance on threat diplomacy in dealing with Iran. These threats of a military attack violate Article 2(4) of the UN Charter that wisely prohibits not only uses of force, but also threats to use force.
Iran diplomacy presents an odd case, as political real politik and international law clearly point away from the military option and yet the winds of war are blowing ever harder.
Perhaps, it is naïve to expect political leaders in the West to awake and realise finally that respect for international law provides the only practical foundation for a rational and sustainable foreign policy in the 21st century. This is highly unlikely to happen until American leaders can conceive of security outside the military box that has so often in recent years led to disaster for others and failure for the militarists.
Richard Falk is Albert G Milbank Professor Emeritus of International Law at Princeton University and Visiting Distinguished Professor in Global and International Studies at the University of California, Santa Barbara. He has authored and edited numerous publications spanning a period of five decades, most recently editing the volume International Law and the Third World: Reshaping Justice (Routledge, 2008).
He is currently serving his third year of a six-year term as a United Nations Special Rapporteur on Palestinian human rights.
Follow him on Twitter: @rfalk13