Striking Before The Reactor Is Hot: Does Israel’s Destruction Of Syria’s Nascent Nuclear Reactor And The International Community’s Response Mark A Shift In Custom Away From The Prohibition On All Preventive Uses Of Force?

Aaron J. Fickes, United States District Court for the Eastern District of Pennsylvania

Abstract

Prior to the attacks of September 11, 2001, the use of force to defend against a threat that was developing but not yet imminent was widely considered illegal by the international community and scholars of international law. The widespread condemnation of Israel’s destruction of Iraq’s developing nuclear facility at Osiraq in 1981 was evidence of this prohibition. After September 11, decision-makers and scholars began to question the logic supporting the absolute prohibition on all preventive uses of force, especially in regard to combating the proliferation of nuclear weapons technologies. In 2007, Israel put these reassessments to the test by destroying Syria’s developing nuclear facility at Al-Kibar. Contrary to the reaction to Israel’s strike in 1981, the international community in 2007 responded with a collective shrug of the shoulders. To contextualize these disparate responses to similar military operations and explain what it means for the blanket prohibition against all preventive uses of force, this Article utilizes the tools developed by scholars working under the constructivist paradigm of international relations theory, particularly the recent work of Jeffrey W. Legro. Applying Legro’s model of ideational change, it is clear that the absolute prohibition on all uses of preventive force is in a state of collapse, and importantly, an exception to this blanket prohibition – specifically, the use of surgical strikes to combat the proliferation of nuclear weapons technologies – is in the process of consolidation. Whether this exception will in fact be consolidated into a new norm and thus alter customary international law remains to be seen. However, the Article concludes by identifying three possible outcomes: 1) the creation of an exception to the blanket prohibition on the preventive use of force for striking nuclear facilities; 2) the affirmation of the blanket prohibition on all uses of preventive force; or 3) a period of volatility, lacking clear rules and susceptible to abuse by opportunistic states.