Modern History and Politics-Self-Defense in International Law: The Israeli Raid on the Iraqi Nuclear Reactor

Article excerpt

Self-Defense in International Law: The Israeli Raid on the Iraqi Nuclear Reactor, by Timothy L.H. McCormack. New York and Jerusalem: St. Martin's Press and Magnes Press, Hebrew University, 1996. 302 pages. Appends. to p. 314. Bibl. to p. 328. Index to p. 339. $49.95.

In this study, Timothy McCormack argues that the 1981 Israeli attack on the Iraqi nuclear reactor, Osiraq, was consonant with the rules of international law regarding anticipatory self-defense, and he rejects the Security Council resolution condemning the Israeli attack as "not legally determinative." To begin his argument, the author describes the Iraqi efforts to construct nuclear weapons and the failure of both the Security Council and the international community to block the efforts and to undertake any attempts to protect Israel from nuclear attack. The failure of the Security Council to take action to protect Israel, and the consequent necessity for Israel to undertake unilateral action, is a major theme in the author's argument. Evidence of Iraqi efforts to acquire nuclear weapons now seems abundantly persuasive in the light of the post 1991 Gulf War discoveries by UN inspection teams.

The greater portion of the book consists of the author's discussion of the legality of anticipatory self-defense under traditional rules of international law and the UN Charter, as well as state practice on the matter. When the author offers a historical and traditional analysis of the rules of self-defense, his argument is informed and coherent. Unfortunately, McCormack does occasionally, and almost casually, formulate the scope of self-defense in ways that are controversial at best and which raise questions about the credibility of his argument.

An example of the author's broad assertion of self-defense is his declaration that Article 51 of the UN Charter must be interpreted to include "the right of states to guarantee [reviewer's italics] their own security when they are threatened with attack and the Security Council will not protect them" (p. 210). Such a broad and unusual assertion brings to mind l9th century concepts of necessity and self-preservation which no longer enjoy support or authority. The recent advisory opinion by the International Court of Justice in the Nuclear Weapons Case, wherein the court could not decide whether rules of international law allow the use of nuclear weapons to ensure the survival of the state, seems to refute any view that a state may do any and all things to guarantee its security.

A second assertion, that Article 51 should be interpreted "to allow states to help achieve the maintenance of international peace and security in situations where the Council cannot or will not take action" (p. …