In a report in the Sunday Telegraph last week, it has been claimed that 'devastating bombing raids' against Iran's nuclear sites are planned by the US, as a 'last resort' to prevent Tehran from developing nuclear weapons. The report elaborated that the raids would be 'backed' by submarine launched ballistic missile attacks. It further quoted a senior Pentagon adviser as saying that the plan went beyond 'contingency assessment'. This raises a number of serious questions regarding the advisability of such strikes for ameliorating the nuclear stand-off between the West and Tehran and its validity under International Law.

A strike against nuclear sites located in 'rogue' Middle-eastern states is not without precedent. On 7 June 1981, nine aircraft of the Israeli air force bombed the Tuwaitha research centre near Baghdad. In a note to the UN Secretary General, the Israeli Government claimed that the 'Osirak' nuclear reactor was developing atomic bombs that would be ready for use against it by 1985. Interestingly, an earlier strike on the facilities was carried out by Iranian Air force planes during the ongoing Iran-Iraq war, only causing minor damage to the reactor.

The reaction to this 'pre-emptive' strike was highly negative. The Security Council unanimously adopted a strong condemnatory resolution affirming Iraq's inalienable "sovereign right" to develop a peaceful nuclear programme and called on Israel to place its own nuclear reactors under International Atomic Energy Agency (IAEA) safeguards by adhering to the Nuclear Non-Proliferation Treaty (NPT). The General Assembly endorsed an even stronger resolution containing a 'solemn warning' against any repetition of such action.

An appraisal of the international law in this regard introduces the concept of 'anticipatory self-defence', which has been one of the most debated concepts in the law of use of force since 9/11. This concept embodies a limited relaxation of the law requiring the occurrence of an 'armed attack' for a state to legitimately exercise its right of 'self-defence' under Article 51 of the UN Charter. Even though there is no consensus with regard to the exact contours of this right (or for that matter, even its very existence), most authors seem to agree that this right can be legitimately exercised only when the use of force being pre-empted is 'imminent', and the military action taken in self-defence is 'proportional' to this threat. Given the nature of these safeguards, it is apparent that the relevant factors are evidentiary in nature.

In stating its case, Israel was not able to convincingly demonstrate that there was a strong likelihood of an 'imminent nuclear attack' against it by Iraq. The critical response by the international community reflected this. However, by the time Iraq invaded Kuwait in 1990, the UN's harsh judgment of Israel's anticipatory strike was being reappraised, especially as it became known that Iraq possessed a sophisticated medium-range ballistic delivery system, and had acquired an extensive array of biological and chemical weapons, hence its animus was evidently not peaceful.

In the case of the possible strikes against Iran, the question of 'imminence' of the threat arises again, which needs to be determined (however the question of 'proportionality' loses its relevance in the case of nuclear weapons). This is where the US, like Israel, seems to fall short, especially appreciating the inadequacy of its intelligence reports on the existence of 'weapons of mass destruction' in Iran. There is a wide disparity in its claims as to when (and even if) Iran would acquire nuclear weapons, and even the most radical estimates do not indicate any immediacy in the threat. The fact that Tehran would use such weapons, if and when it possesses them, is easier to conjecture, given the threatening rhetoric coming from Tehran.

Another relevant factor is that the nuclear targets in Iran are multiple and have been deliberately placed within civilian centres; thus any military strike would necessarily entail civilian casualties. The 'Osirak' strike did not involve such collateral damage; in fact it was carried out before the first fuel was loaded into the reactors, thus, before it went 'hot', to avoid endangering the surrounding community. The law of war (based on the Geneva Conventions) prohibits the bombing of civilian population centres even in retaliation against attacks on cities.

On the basis of current evidence, it seems any strike carried out by the US would come in for criticism by the international community and international law experts.