- - Monday, April 13, 2015

The United States is trotting toward bombing Iran’s nuclear facilities.

The ambiguous understanding recently announced by the two nations is destined to unravel by June over the timing of sanctions relief and verification of Iran’s obligations to roll back its nuclear infrastructure. Congressional legislation could also upset the provisional agreement driven by jihadists for a zero-risk world lead by Republican Sens. John McCain of Arizona, Lindsey Graham South Carolina and Tom Cotton Arkansas.

Prominent former officials like former U.N. Ambassador John Bolton are already clamoring for a bombing campaign. President Obama has stated categorically that “Iran will not get a nuclear weapon on my watch.” The majority of 2016 presidential aspirants will predictably pledge to employ military force destroy Iran’s nuclear infrastructure to curry favor with jingoists and an easily frightened electorate. Remember that Hillary Clinton in her 2008 presidential campaign promised to obliterate Iran if it attacked Israel.

But bombing Iran over a nuclear capability or possession of nuclear weapons, simpliciter, would constitute the crime of aggression as previously defined and prosecuted by the United States. And making possession of nuclear weapons per se a justification for war would invite other nations to attack our nuclear weapons facilities. Finally, a war of aggression against Iran not in self-defense would regress the United States thousands of years to the morally reprehensible motto of the Athenian Empire: “the strong do what they can and the weak suffer what they must.”

The post-World War II Nuremberg Tribunal and the International Military Tribunal for the Far East were the handiwork of the United States. Both tribunals prosecuted and punished Nazi leaders and Japanese militarists for crimes against peace, i.e., waging wars of aggression not justified by self defense. Reichsmarschall Herman Goering and General Hidecki Tojo, for instance, were sentenced to death. The United Nations Charter and the Rome Statute of the International Criminal Court also prohibit war except in self-defense, including bombardment by the armed forces of a state against the territory of another state.



Mere possession of nuclear weapons has never been thought to constitute a casus belli since nuclear weapons were first developed and used by the United States against Hiroshima and Nagasaki 70 years ago. At present, nine nations are known to possess nuclear arsenals: the United States, Russia, China, Great Britain, France, India, Pakistan, Israel, and North Korea. The nuclear weapons of the first five are legal under the morally skewed Nuclear Non-Proliferation Treaty of 1970. The latter four are not members of the NPT. They are not bound the prohibition on nuclear weapons imposed on signatories (other than the privilege five). Iran, however, could withdraw from the treaty at any time by providing notice like North Korea did in 2003 and be freed of any NPT obligations against development of a nuclear weapon. In any event, the NPT does not make a violation a justification for war.

Iran’s government is despicable. It sponsors terrorism and violence abroad through Hezbollah or otherwise. It routinely violates fundamental human rights of its own citizens. Former President Mahmoud Ahmadinejad notoriously disputed the Holocaust, and Iran’s leaders repeatedly malign Israel and the United States. But the threshold for war is an actual or imminent attack, not verbal bellicosity.

And it is unconvincing to argue that the sole plausible reason for Iran’s acquisition of a nuclear weapon would be an immediate war of aggression against the United States, Israel or other nations. It is more convincing to believe in a self-defense rationale. The United States intervened to overthrow the democratic government of Prime Minister Mohammed Mossedegh in 1953 in favor of the brutal and corrupt Shah of Iran. The United States supported Iraqi President Saddam Hussein in his 1980-88 war against Iran. At present, regime change is the United States goal in Iran. The United States taught Iran’s leaders to fear United States aggression if it abandoned its nuclear ambitions with our 2011 war against Libya’s Col. Muammar Gaddafi in the aftermath of his abandonment of weapons of mass destruction. Moreover, Iran’s rival, Israel, is estimated to possess 60-400 nuclear warheads.

The United States could bomb Iran’s nuclear facilities without fear of commensurate retaliation. At present, we are the world’s superpower with unsurpassed military dominance. We could embrace the Athenian motto of the strong do what they can and the weak accept what they must with relative impunity in the short run.

But at the price of the electrifying purpose of the American Revolution.

As then-Secretary of State John Quincy Adams explained in his July 4, 1821 address to Congress, the glory of our Republic is liberty, not domination or conquest. Liberty can be maintained at home only by resisting the temptation to go abroad in search of monsters to destroy. As Alexis de Tocqueville lectured in Democracy in America: “All those who seek to destroy the liberties of a democratic nation ought to know that war is the surest and shortest means to accomplish it.”

For more information on Bruce Fein, visit brucefeinlaw.

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