Israel's Air Strike upon the Iraqi Nuclear Reactor

The destructive potential of nuclear weapons is so enormous as to call into question any and all received rules of international law regarding the trans-boundary use of force. Many of the old rationales for these rules no longer apply. At the same time, the shared values underlying the rules apply more emphatically than ever, for the stake is global survival. I have tried to suggest some of the questions that must be asked about as apparently “simple” an incident as the Israeli attack on the nuclear reactor in Iraq. Tags: Iraqi nuclear reactor, Israel’s aerial strike, air strike, transboundary force, anticipatory self-defense [pg584]** It is curious that no commentary has appeared in this Journal regarding Israel's aerial strike upon the Iraqi nuclear reactor near Baghdad on the morning of June 7, 1981. Perhaps scholarly consensus accords simply with the Security Council resolution of June 19, 1981, which “strongly condemns the military attack by Israel in clear violation of the Charter of the United Nations and the norms of international conduct.”FN1 My limited purpose here is to suggest questions regarding any such simple conclusion, and to invite detailed and considered scholarly analysis of the situation.FN2 The starting point for any legal analysis is Article 2(4) of the Charter.FN3 Was Israel's unannounced, premeditated aerial bombardment of the Iraqi reactor a “use of force against the territorial integrity or political independence” of Iraq? On what Professor Julius Stone has called the “extreme” view of 2(4), any unilateral employment of transboundary force not in self-defense against [pg585] an armed attack (Article 51) violates 2(4).FN4 But as Stone goes on to argue, this reading—though it commands some support in the travaux preparatoires—ignores the terms “territorial integrity” and “political independence.” FN5 I suggest that it is open to serious question whether Israel's strike was a use of force against either Iraq's territorial integrity or its political independence. No portion of Iraq's territory was taken away from Iraq by the bombardment. A use of the territory—namely, to construct a nuclear reactor—was interfered with, but the territory itself remained integral. Nor was Iraq's political independence compromised. Iraq's power was undoubtedly lessened, but in what sense was its governmental authority vis-a-vis other sovereign governments diminished? Of course, if Israel's attack had been preliminary to a military campaign directed against Iraq's territorial integrity or political independence, a purposive interpretation of Article 2(4) would result in a finding of illegality of the initial strike against the nuclear reactor. But there has been no evidence of any Israeli purpose beyond the limited one of destroying the nuclear reactor itself. In this respect, Israel's action was analogous to a limited “humanitarian intervention,” such as the Entebbe raid,FN6 which can be justified along similar lines as not violative of 2(4).FN7 But there is another component to Article 2(4)—that the use of force must not be “inconsistent with the Purposes of the United Nations.” Here a purposive, or teleological, inquiry is explicitly mandated. McDougal and Feliciano, although addressing themselves to self-defense under the Charter, suggest three relevant factors for determining the objectives of the claimant (here, Israel): extension or conservation, degree of consequentiality, and exclusivity or inclusivity.FN8 Let us examine briefly the relevant questions under these categorical factors.