The latest disturbing news out of Iran is that the government now plans a conference on the Holocaust. Having already judged the Nazi genocide a myth and called for Israel's destruction, Iranian President Mahmoud Ahmadinejad seems bent on making a name for himself as this century's leading violent anti-Semitic megalomaniac, this time with nukes.
The Jerusalem Post has over the last few days published a succession of articles examining the potential for a preemptive Israeli attack on Iranian nuclear facilities, akin to the country's successful 1981 attack on Iraq's Osirak reactor, credited with setting back Baghdad's nuclear ambitions by years if not decades. The Post reports that Israeli pilots have trained for such an attack, but pulling it off this time will be far tougher than 25 years ago because the Iranians have dispersed and defended their facilities. Israel appears to be proceeding on the basis that for reasons including chiefly Iraq, it may not be able to count on the US to deal with Tehran on its behalf.
Putting aside whether Israel could successfully destroy Iran's nukes, this confrontation could shape up into the first major test of where the doctrine of preemption stands post-Iraq. While the Israelis have never been able to afford the luxury of adhering rigidly to consensus international legal interpretations, after the Iraq War it would sure make things easier if Tel Aviv was on firm ground should the need to preempt arise.
There were two primary criticisms of the Bush Administration's invocation of preemption in Iraq - failure to exhaust peaceful alternatives and failure to establish the imminence of the threat.
It's easy to envisage the exhaustion requirement being met vis-a-vis Iran. If, likely due to Russian or Chinese intransigence, the UN Security Council declines to take up the Iranian threat, the major forum for peaceful resolution of global disputes will be de facto foreclosed. Likewise if the Security Council opens debate but cannot agree on action, it could be fair to judge the UN channel exhausted.
Another realistic scenario is that the Security Council musters the political will to move, but confines itself to measures short of sanctions targeting the Iranian oil supplies on which the Chinese and indeed our own economy depend. If that happens, and the lesser sanctions don't deter Tehran, the international community may have exhausted its willingness to pressure Iran through peaceful means.
Exhaustion of peaceful means as a result of limited international political will should not be discounted as grounds for justifying preemptive action, particularly where powerful global economic interests are being weighed against a threat targeting one country in particular. This principle is in essence, I think, what makes us judge the Kosovo intervention as legitimate in retrospect despite the absence of UNSC imprimatur. The fact that one or a handful of countries block measures out of self-interest cannot be grounds for delegitimizing otherwise justified action by others.
Judging from past experience, however, under any of these scenarios, countries may not fully foreclose further peaceful measures against Iraq, making it difficult to judge exactly when the exhaustion requirement is met. If countries claim that they might be willing to reexamine the possibility of banning Iranian oil sales in future, will Israel be forced to sit and wait?
This is where the exhaustion and imminence tests tie together. Israel may face a challenge in establishing that the threat it faces is imminent. With Ahmadinejad openly advocating Israel's destruction and cutting the UN seals on its nuclear installations, there would seem adequate grounds today for preventive action to stop Iran from acquiring the means to carry out its destructive aims against Israel. But the principle of preventive war is even more controversial than preemptive war, since its not predicated on a threat that's close at hand.
Some analysts have said that the imminence test is met if preemptive action is carried out at the last moment when it is still possible to defend against the anticipated attack. Under this theory, hitting Iranian nuclear facilities that are almost but not quite capable of attacking Israel would be justified. In the event that Iran does not cooperate with the UN and IAEA inspectors, its unlikely that Israel or anyone else will know precisely how close Tehran is to creating deployable nukes. That uncertainty, particularly if created by Iran's own obfuscations, could justify action at any time on the basis that it may be impossible to know when its too late to frustrate Ahmadinejad's apparent goal of having weapons capable of attacking Israel.
That leads back to the exhaustion point. If imminence of a threat can be established, then it seems fair to say that the exhaustion requirement is met if peaceful means have been exhausted for the present time, regardless of what more might be done in future. So if, in a debate in Spring of 2006 let's say, the UNSC opts against quarantining Iranian oil, if Tehran's nuclear program is proceeding apace, peaceful means should be considered exhausted even if the SC members claim willingness to revisit the question of broader sanctions at a later time.
For the immediate term, Israel awaits the fate of a leader and the results of an upcoming election, both of which need resolution before military action in Iran will be seriously considered. In the meantime, the international community will put diplomacy and other forms of peaceful response to the Iranian threat to the test. If those efforts fail, Israel may have to put the question of preemptive war back on center stage.