The legal case against attacking Iran

A preemptive strike against Iran would violate both U.S. and international law.

By Bruce Ackerman
LA Times
March 5, 2012

Israeli Prime Minister Benjamin Netanyahu's visit to Washington has provoked a broad debate over the military and political wisdom of an attack on Iran. But so far, there has been little attention to the legal issues involved, which are crucial. American support for a preemptive strike would be a violation of both international law and the U.S. Constitution.

Article II of the Constitution requires the president to "take care that the laws be faithfully executed," and Article VI says that treaties are part of the "supreme law of the land." Since the Senate overwhelmingly ratified the United Nations Charter as a treaty in 1945, the president is constitutionally required to abide by Article 51 of the charter. This provision allows states to use military force in self-defense only when responding to an "armed attack." Preemptive attacks are another matter.

In 1981, the United States joined in the U.N. Security Council's unanimous condemnation ofIsrael'spreemptive assault on an Iraqi nuclear reactor. British Prime Minister Margaret Thatcher put it bluntly: "Armed attack in such circumstances cannot be justified. It represents a grave breach of international law."

In standing with the Security Council to condemn the Israeli raid, the Reagan administration was embracing a tradition of U.S. statesmanship that began with Secretary of State Daniel Webster. In 1837, the British were trying to suppress a revolt in eastern Canada. Because U.S. militias were assisting the uprising, the British launched a night raid into New York state, burning a U.S. ship, the SS Caroline, and sending it over Niagara Falls.

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