Moon of Alabama Brecht quote
March 06, 2012

If Attacked Iran Could Legally Make Nukes

Iran is a Non-Nuclear Member State of the Non-Proliferation Treaty. As such it is not allowed to make or own nuclear weapons. If Iran were to build a nuclear weapon it would be in breach of the NPT.

(The U.S. intelligence community has judged that Iran does not have a nuclear weapon program and there is no sign that it will ever attempt to make any nuclear weapon.)

But if attacked, despite being a member of the Non-Proliferation Treaty, Iran would have the right to build nuclear weapons. That is at least the legal standpoint of the United States government and of other NATO members.

NATO's doctrine and treaties include nuclear sharing which is:

a concept in NATO's policy of nuclear deterrence, which involves member countries without nuclear weapons of their own in the planning for the use of nuclear weapons by NATO, and in particular provides for the armed forces of these countries to be involved in delivering these weapons in the event of their use.
As of November 2009, Belgium, Germany, Italy, the Netherlands and Turkey are still hosting U.S. nuclear weapons as part of NATO's nuclear sharing policy.

The countries mentioned are, like Iran, Non-Nuclear Member States of the NPT. But they do host US-owned nuclear weapons and their pilots regularly train how to use them.

The Non-Proliferation Treaty says:

Article I: Each nuclear-weapon State Party to the Treaty undertakes not to transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices or control over such weapons or explosive devices directly, or indirectly; [...]

Article II: Each non-nuclear-weapon State Party to the Treaty undertakes not to receive the transfer from any transferor whatsoever of nuclear weapons or other nuclear explosive devices or of control over such weapons or explosive devices directly, or indirectly; [...]

Nuclear sharing, the planed handing over of nuclear weapons to non-nuclear weapon states in case of war, as practiced by NATO, would clearly breach Article I and II of the Non-Proliferation Treaty.

But that is fine, say NATO and the US ever since the NPT came into force. They state, as discussed in detail here, that the NPT:

"does not deal with arrangements for deployment of nuclear weapons within allied territory as these do not involve any transfer of nuclear weapons or control over them unless and until a decision were made to go to war, at which time the treaty would no longer be controlling".

In case of war, says the U.S. and NATO, the Non-Proliferation Treaty is "no longer controlling" and can therefore, they argue, then be breached without legal consequences.

If the United States, Israel or whoever attacks Iran (which would be illegal under national and international law) the NPT would be "no longer controlling" and Iran could, using the U.S. argument, build nuclear weapons without breaching its legal obligations under the NPT.

The argument might look practically irrelevant but it is not. If the U.S. attacks Iran a state of war with Iran would continue even after the immediate shooting is over until an official peace treaty would be signed. That could take years. If Iran would, during that time, build nukes there would then be no legal basis for a United Nations Security Council resolution to censure Iran for breaching the NPT.

The U.S. often likes to interpret international laws and treaties like the NPT liberally for itself. But such a view of the law can also be used by others and the above shows the implicit danger of such interpretations.

Posted by b on March 6, 2012 at 17:48 UTC | Permalink


DAE think this is some sort of elaborate set-up? Israel, AIPAC, the whole bomb-Iran crowd, agreeing to play the bad guy to a) burnish Obama's image b) disappear more of Palestine while no one is looking.

Posted by: ruralito | Mar 6 2012 18:14 utc | 1

Great topic ! This can be a really interesting and helpful discussion. The kind the ACW folks are now avoiding to have.

Posted by: AH | Mar 6 2012 18:17 utc | 2

simple question - would Netanyahu be in the news without pretending that Israel could attack Iran?

its getting funny now actually - what did China really say:
China warns Iran again on nuclear aims
or this

Posted by: somebody | Mar 6 2012 18:21 utc | 3

they must be joking.

Posted by: somebody | Mar 6 2012 19:36 utc | 4

Iran will give IAEA access to the Parchin military site.:

Of course, now the west will lift the sanctions. Yeah, I'm holding my breath for that one.

Posted by: Alexander | Mar 6 2012 19:42 utc | 5

"If the U.S. attacks Iran a state of war with Iran would continue even after the immediate shooting is over until an official peace treaty would be signed."

No, sorry, that's pre-UN Charter thinking, and is now (legally-speaking, as we are here)quite obsolete.

The legal construct of "war" as it existed pre-WW2, with all its formalized "declarations of war", "articles of surrender" and "peace treaties" has been replaced with a much simpler legal construct: "armed conflict".

As in: there is either an "armed conflict" or there isn't, and if there is then Ya' Got Yer' War On, and if there isn't, well, you haven't.

That's why nobody Declares War any more (which, when you think of it, is nothing but a formal declaration of a State of War between You 'n' Them).

That's why wars DON'T end with Peace Treaties (which, again, is nothing but a formal agreement that there is no more State of War between Them 'n' You).

Nowadays it's much different: someone goes BANG! on someone else, mutual whalloping takes place while the UN Security Council shouts from the sidelines, and then someone (the UNSC, the USA, whatever) brokers a ceasefire between the two whallopers.

b: "That could take years. If Iran would, during that time, build nukes there would then be no legal basis for a United Nations Security Council resolution to censure Iran for breaching the NPT."

No, legally-speaking the time span you are looking at is between
1) BANG! Caught you by surprise!
2) We have agreed on a ceasefire.

Moment (1) signals the beginning of an armed conflict, and (2) is when that armed conflict ends.

All academic, of course, since an Israeli (or USA) whalloping would give Iran a perfectly legitimate reason to withdraw from the NPT.

Posted by: Johnboy | Mar 6 2012 20:37 utc | 6

I admit to finding the logic more than a bit tortuous, though I'm no expert in international law, treaties, or what have you.

You're taking a statement about the consequences of a by definition nuclear war from the late 1960s as evidence for a US position on conventional war in the 21st century. You're also then extrapolating from that to imply that the US position on the NPT is that it fails to be valid during any wars.

I don't think that's the case, nor really a great interpretation of the US position even in the 1960s. The authors of the particular article you've linked to interpret the US position to be one about the ability to withdraw unilaterally, without notice from NPT commitments in the event of war, as per Article X.

Withdrawing unilaterally is a different question entirely from being able to do it "legally," and again, I think it is pretty clear from the context that the "war" in question was a nuclear exchange with the Soviet Union (what other war would result in the US authorizing its NATO allies to use nukes?). As the authors point out, "The end of the Cold War also raises the question of whether a US interpretation which rests on a Cold War interpretation of 'general war' is an appropriate basis for the Treaty regime in the future." Personally I think the "US position" being discussed here is just a poorly-worded restating of Article X.

I doubt anyone in the current US government feels that the NPT terms can be wantonly abrogated and still be legally adhered to in the case of any old "little" (e.g. non-"extraordinary") war, though that is just speculation on my part. Surely there are those who believe that per "extraordinary circumstances," the US could withdraw from the NPT, but again, that's just what Article X says.

Posted by: RD | Mar 6 2012 21:10 utc | 7

The NATO treaty is a deal between USA an european states where: The USA guarantees their allies support in a state of war, for exchange of access to european territory for military bases. In a worst case, the US support can be in the form of a nuke.

There are american nukes stationed in european countries, and european countries that does not themselves have nuclear weapons does regularly exercise in their deployment. What countries have nukes stored on their ground, is obscured by a don't deny, don't confirm policy, but there are 5 of them.
I the case of war, nuclear weapons and the control of them, will be transferred to those countries that does not have nukes themselves, and even deployed by their native military.
In a war-situation, national boundries become blurred within NATO, as ISAF forces will be more or less free to operate anywhere within allied territory.

Anyway, as far as the NPT is concerned, the legality of NATO territory and movement of nukes, has not been tried, as far as I know.

The problem is that the NATO nations probably can get away with breaking the NPT, Iran - not so much.

Posted by: Alexander | Mar 6 2012 22:37 utc | 8

The US justice department go a long way in justifying the absurd.
Now of course the government has a license to kill, anyone anywhere, without jury, trial or conviction.
That's how a rouge state operates.
And with a veto in the UN, who's going to stop them. So, don't think Iran will be treated fairly. Crippling countries surrounding Israel will proceed with no regard for international law. I've lost any illusion that we live in a civilised society anymore, maybe I'm cynical, but I think it is justified, please prove me wrong.

Posted by: Alexander | Mar 6 2012 23:00 utc | 9

@5 If true (it hasn't been confirmed by the IAEA, has it?) then the timing is quite impeccable.

Bibi has just finished his "walk like a duck" nonsense at AIPAC, and Iran has invited the IAEA to inspect one of the main duck ponds.......

Posted by: Johnboy | Mar 6 2012 23:03 utc | 10

Johnboy @ 10

I guess they had no choise but to let them in, even if they have no obligation under the NPT to do it. Probably they have moved the captured drone to a different location by now. ;-)
A date for the inspection will probably be set within a few days.

Posted by: Alexander | Mar 6 2012 23:20 utc | 11

That idiot David Cameron has been snorting the ziocaine and neo-concaine again.

Iran 'seeking to build nuclear weapon', warns David Cameron

Posted by: blowback | Mar 7 2012 3:12 utc | 12

"I guess they had no choise but to let them in, even if they have no obligation under the NPT to do it"

They had previously let the IAEA into Parchim in 2005. Twice, in fact.

Both times the inspectors incensed the Iranians by attempting to change the agreed-upon rules, and so the Iranians said that
a) they did not reject the idea of further inspections of Parchim, buuuuuuut
b) they wanted the "modalities" set down on paper and strictly adhered to.

So they obviously have now got (b), and so they will now allow (a).

"Probably they have moved the captured drone to a different location by now."

Well, yeah, no doubt.

But I suspect very much that they aren't going to be able to move a bus-sized "implosion chamber", nor are they going to fool the IAEA by showing them a papermache mockup and asking "that's what you wanted to see, isn't it?".

So if they are willing to let the IAEA poke their noses into that room then you can be pretty certain that Amano is wasting everyone's time i.e. that implosion chamber is simply too small to be used for testing the design of a nuclear warhead, and all that Amano is going to gain from this exercise is A Face Full Of Egg.

Posted by: Johnboy | Mar 7 2012 3:16 utc | 13

@ 12

David Cameron has warned that Iran is seeking to build an "inter-continental nuclear weapon" that threatens the west, as he urged Israel to allow time for sanctions to force the Iranians to change their strategic stance.

He was speaking after the cabinet was briefed for an hour by the national security adviser, Sir Kim Darroch, on the imminence of the threat to the UK posed by Iran.

It is the first time Cameron has made such an explicit warning that Iran could endanger UK security, and has faint echoes of the warnings from Tony Blair's government that Iraq could fire weapons of mass destruction with 45 minutes' notice.

At least the authors of the article have got the right idea. Heh

@ 13
An implosionchamber for microdiamonds would have to be about bus-sized, so I don't think a papermache-mockup would be needed.

Posted by: Alexander | Mar 7 2012 3:44 utc | 14

@RD - You're taking a statement about the consequences of a by definition nuclear war from the late 1960s as evidence for a US position on conventional war in the 21st century. You're also then extrapolating from that to imply that the US position on the NPT is that it fails to be valid during any wars.

NATO had a "first use" policy on nukes. The "nuclear sharing" and its legal reasoning was thereby a fact even in a conventional war. It would have been and would be NATO who would have used nukes first and thereby killing the NPT.

Posted by: b | Mar 7 2012 5:45 utc | 15

Uh-oh - From the unreliable Arab Times but anyway: US, Iranians ‘clash’ at sea

KUWAIT CITY, March 5: US troops opened fire on a boat carrying six Iranians near Kuwait’s territorial waters, a source told Al-Shahed daily, adding four Iranians were killed, one was wounded and another was reported missing.
According to the source, the Iranian boat approached a prohibited area that was under the control of US Navy and refused to obey orders. Kuwait’s Coast Guards have been put on alert following the incident, which occurred northeast of the territorial waters of the country.
The source also added that US-Kuwait joint forces began searching for the missing Iranian, while the injured was referred to the US military hospital for treatment. The remains of the four Iranians were recovered by US troops and will be repatriated to Iran.
The US Army has launched an investigation into the incident and is keeping the damaged boat to find out why the Iranians wanted to enter the prohibited area.

Posted by: b | Mar 7 2012 5:47 utc | 16

With regard to b @ 16: the story has been "officially denied" at the same source (Arab Times). It certainly seems that there is no shortage of disinformation between the Fertile Crescent and the Persian Gulf.

Posted by: Hannah K. O'Luthon | Mar 7 2012 6:19 utc | 17

Probably just oil futures guys trying for an early morning bump.

Posted by: dh | Mar 7 2012 14:57 utc | 18

Tony b.liar, 2002--Saddam weapons real threat to Britain.

David Cameron, 2012--Iran building missiles to strike Britain.

Amazing how the script stays the same. Don't any of them ever stop to think how foolish they sound? (Oh, but the sheeple have by now all forgotten about Tony B.liar's fabrications!)

Posted by: JohnH | Mar 7 2012 15:08 utc | 19

@16 - so much for the so-called First Gulf War being about re-establishing Kuwait's sovereignty. It is now nothing more than a US colony in all but name. Could someone remind me who was supposed to be the "expansionist power" after World War 2?

Posted by: blowback | Mar 7 2012 15:09 utc | 20

JohnH @ 19
Follows the same pattern of Israeli subordinance as most UK elected representatives. Those clowns really never learn.

Posted by: Alexander | Mar 7 2012 16:39 utc | 21

b, you're up:

There are so many half-truths, distortions, and outright lies folded into the latest "AP exclusive" on Iran, that I don't even know how to take it apart. You could have a field day with it.

Posted by: Bill | Mar 7 2012 22:33 utc | 22

Bill|Mar @ 22
Heh.. that's such blatant obvious propaganda and CIA counterintelligence misinformation-campaign frivolous crap it's, its revolting. It's a doosey though. They are even refering to the neutron initiator-thing described in a persian fabricated document that was debunked by a former IAEA committee, recently taken out of the trash.. anyway.. I'm not going to touch this one, it's just to far out. Take it b.

Posted by: Alexander | Mar 7 2012 23:38 utc | 23

b, your reasoning presupposes:

1) a "non-crippling" attack (just a whack at the hornets' nest)
2) a failure of the Iranians to retaliate, at least in a way that would provide an excuse for the aggressors to escalate the attack
3) then, Iran, recedes from the NPT
4) the aggressors give Iran the time to build the bomb, this time for real

something just doesn't add up

Posted by: claudio | Mar 8 2012 1:51 utc | 24

Only slightly on-topic, but I thought you might be interested in this.....

My March 3rd copy of The Economist contains an article on Iranian "ultra-high performance concrete" (UHPC) that is, not surprisingly, very useful for any country that is in an earthquake zone, or under threat of bombing.

Anyway, Iran is an acknowledged leader in UHPC research, and this quote intrigues me:
"One way to tamper with the internal structure of concrete is to use nanoparticles."

The Iranians have published several papers on using metal-oxide (e.g. iron, titanium, copper) nanoparticles in concrete, and apparently the results are very promising indeed.

Makes me wonder if there isn't some unpublished research into what effect nanoDIAMONDS have on concrete.

This is speculation, but I wonder if that explains that "bus-sized" detonation chamber at Parchin?

Maybe, just maybe, the Iranians are using it to test out some theories they have on How To Make Their Military Bunkers Impregnable.

Just sayin', is all......

Posted by: Johnboy | Mar 8 2012 4:26 utc | 25

Government officials concerned over Iranian made smart concrete

Posted by: Alexander | Mar 8 2012 7:46 utc | 26

Camoron. After apartheid ended, Thatcher's government decided the blacks couldn't be trusted with Israel's nukes. So they sent David, their new backroom boy, to repossess them. On the way home, he lost three. Gone for ever. Never seen again. And he ignores Israel's arsenal, and accuses others of proliferation!

Posted by: Bob Jackson | Mar 8 2012 9:24 utc | 27

@26 Alexander, you can read the article on The Economist's web site.

Nice photo of "the MOP being dropped", though I'd like to see the IAF strap one to the wings of an F-15.... SNAP!

When the article started talking about nanoparticles then the penny dropped faster than a bunker-buster from a bomb bay door.

After all, b's conjecture on nano-diamond detonation chambers sounds plausible, but one thing that always nagged me was why the Iranians would want to build one on a MILITARY base, and not in some University physics department.

But this article shows that nanoparticles have a definite MILITARY application i.e. they cn be used to make a military bunker invulnerable to airstrikes.

If your own airforce is crap then that's a prospect well worth investigating, and you really do want to investigate it in a military research facility.

You know, in a place like Parchin.

Posted by: Johnboy | Mar 8 2012 10:52 utc | 28

I think the implosion-chamber is at the bottom left in this picture, and bottom left at this picture of Parchin military site. As you can see, it is in a secluded place among hills, away from where it may cause harm if things go wrong.

Posted by: Alexander | Mar 8 2012 11:52 utc | 29

The IAEA are still banging on about an alleged development of nuclear explosive devices, even if it has been debunked, of course he is referring to research on the microdiamond project.

Amano said that the IAEA has safeguarded a number of Iranian nuclear facilities which the Islamic Republic has declared to the agency.
"For these facilities and activities, I can tell that they are in peaceful purpose," Amano said. "But there are also, there may be other facilities which are not declared, and we have the indication or information that Iran has engaged in activities relevant to the development of nuclear explosive devices," he stated.

Posted by: Alexander | Mar 8 2012 14:31 utc | 30

Lets not forget the documents The Guardian uncovered in 2010 that confirms the existence of Israels nuclear weapons, and that Israel was trying to sell nukes to their apartheid cousin, South Africa, before the apartheid regime was thrown out.
The documents show Israelis offered nukes to the South African regime when they met in 1975.

They (the documents) will also undermine Israel's attempts to suggest that, if it has nuclear weapons, it is a "responsible" power that would not misuse them, whereas countries such as Iran cannot be trusted.

I wonder how Israel got that firm grip on USA's balls, it seems only Israel benefit from the (parasitic) relationship.

Posted by: Alexander | Mar 8 2012 14:50 utc | 31

I've making this case for years. I prefer to say that an attack on Iran, even the very threats against Iran void the treaty.

Posted by: scottindallas | Mar 10 2012 13:12 utc | 32

After hearing the arguments of Henry Kissinger on a relates topic, I too have come to the conclusion that, using USAs understanding of the NTP;
If attacked, Iran would no longer be obliged by the Non Proliferation Treaty, and could legally develop nuclear weapons.
The supreme leader also seem to be under this understanding, but only as a last resort, the guideline still is a fatwa on nukes.

As b says, even being under threat of war, would probably constitute a void of the treaty.

Posted by: Alexander | Mar 11 2012 23:10 utc | 33

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