What is worse: Iran getting the bomb, or Israel (and perhaps the United States) attacking Iran? This is shaping up as the crunch question for 2013. Israeli Prime Minister Benjamin Netanyahu, who is almost certain to be re-elected in January, has threatened an attack in spring or early summer, when he thinks Iran will have achieved weapons- level enrichment. Then President Barack Obama will come under pressure to make good on his promise to stop Iran acquiring a nuclear weapon.
The answer, regrettably, is that each outcome is worse than the other. But there is a legal pathway to pick through this dilemma.
The U.S. and Europe have pinned their faith on the carrot of diplomacy and the stick of sanctions to bring Iran to heel, but neither will work. Sanctions are causing harm, but mainly to the middle class that tried to rebel against the ruling mullahs in the 2009 Green Revolution and was brutally suppressed. Economic pain just makes the regime more determined to press ahead, and to string along the naive Western diplomats, who don't seem to realize that while they talk, Iran continues to enrich uranium.
Iran is a member and beneficiary of the Treaty on the Non- Proliferation of Nuclear Weapons, which guarantees signatories the "inalienable right" to a full nuclear-fuel cycle. Once achieved, all that Iran has to do is follow North Korea's example by pulling out of the treaty. At that point, Iran can build as many bombs as it likes (North Korea, perhaps the world's most irresponsible government, has about 10, according to the Federation of American Scientists).
The prospect of a nuclear-armed Iran is truly alarming. Not because it intends to attack Israel - it doesn't - but because it will empower a criminal regime and incite proliferation. Saudi Arabia has announced that it will buy nuclear arms from Pakistan, which has as many as 110 bombs. The Muslim Brotherhood in Egypt is demanding that its government acquire them as well. The supreme leader of Iran, Ali Khamenei, is guilty of at least three crimes against humanity: the massacre of thousands of political prisoners in 1988, the global assassination campaign that murdered 162 dissidents through to the 1990s, and the killing and torturing of Green Movement protesters in 2009. The regime has given itself impunity for mass murder, and if armed with the bomb it may mass-murder again.
Israel is unlikely to be the target. For all of President Mahmoud Ahmadinejad's vicious rhetoric, Iran has no quarrel with its own Jewish population, and any attack on Israel, which has submarines ready to fire nuclear missiles on Tehran in response, would be suicidal. Because Iran hasn't yet built a bomb, let alone a delivery system (that's likely to take several more years), it poses no imminent threat to Israel and won't do so in 2013. For that reason, an Israeli attack on Iran next year would not only be irresponsible, but also unlawful.
International law is clear. Israel and its allies have a right to attack another country in self-defense, under Article 51 of the United Nations Charter, but only to prevent an attack from the enemy, which must be "imminent," meaning, about to happen. George W. Bush's doctrine of pre-emptive self-defense, under which the U.S. attacked Iraq, has been decisively rejected. It was in any event based on the assumption that Saddam Hussein already had nuclear weapons - which we know that Iran has not.
The consequences of an attack on Iran's nuclear sites are bound to be disproportionate. Everyone seems to assume it will be a surgical strike, such as the one on Osirak, the Iraqi facility that Israel bombed in 1981, or al-Kibar, the Syrian reactor it flattened in 2007. Few people were killed in those attacks. But Natanz - a prime target for any strike on Iran - employs 5,000 workers, and Bushehr, Iran's only operational nuclear-power reactor, has an eponymous township with about 200,000 people in line for the potential fallout. Furthermore, the main potential targets store 371 tons of uranium hexafluoride, so bombing would trigger a toxic cloud that could asphyxiate tens of thousands, if the wind were to blow in the wrong direction.
The attack would also prompt reprisals, such as rockets on Israel from the north (Hezbollah) and the south (Hamas), and perhaps from Syria if President Bashar Assad is still standing. Iran might also close or mine the Strait of Hormuz and attack U.S.
naval vessels. A wider war may follow. For these reasons, attacking Iran next year would be far worse than its gradual progress toward acquiring a bomb.
An attack on Iran in 2013 would be unlawful and disproportionate, but the alternative of allowing the mullahs to eventually get their hands on nuclear triggers is almost as frightening. They aren't mad enough to attack Israel - indeed they are rational. As rational as a gang of serial killers. Can international law offer any way out of the dilemma? Under human-rights law, the acquisition and use of a nuclear weapon, releasing ionizing radiation uncontainable within space or time, plainly breaches the right not to have life taken arbitrarily. Any use of atomic weapons is a breach of the law of war: Their deathly radiation cannot distinguish between soldier and civilian, military target and hospital or school. They cause unnecessary and disproportionate suffering and they pose an existential threat to the environment. Even a limited war, between India and Pakistan, or North Korea and the U.S., would probably change the climate before climate change does.
Unfortunately, back in 1996, the U.N.'s World Court, while acknowledging that international law was moving toward a ban on the bomb, illogically accepted that it might be lawful to use nuclear weapons on troops in a desert or on warships mid-ocean.
Recent discoveries, about the cancers induced in people and the malformation in fish that were caused by atmospheric nuclear- weapons tests in the 1950s and by the French underwater tests in the Pacific, show how wrong this court decision was.
International human-rights law has developed since then, to a point where I believe it now condemns further acquisition of nuclear weapons as a crime against humanity. This would justify the Security Council to authorize an attack on Iran, at the moment when it had all the components of a bomb and an intention to assemble them.
The law is not retrospective, however, and doesn't make illegitimate the existing 20,000 nuclear weapons that are now in the possession of the eight states that have acknowledged owning nuclear weapons, plus Israel, which has not. According to the World Court - correctly this time - nuclear-armed countries have a legal obligation under Article VI of the nuclear nonproliferation treaty to negotiate a gradual disarmament, to zero. This might be done on a "first in, last out" basis, with North Korea being first to lose its bombs and a final ceremony to destroy simultaneously what is left in the Russian and U.S. arsenals - perhaps attended by the aging former U.S. and Russian leaders, Barack Obama and Vladimir Putin, circa 2045.
As Syria shows, there may be major hurdles to getting Security Council approval for an attack on Iran, even when it is ready to assemble a bomb. Regrettably, great powers are also very reluctant to give up powerful weapons. To bring about this happy ending, it may take a nuclear accident, incident or war, which are likely consequences of the current climate of proliferation.
Geoffrey Robertson is a human-rights lawyer and author of "Mullahs Without Mercy: Human Rights and Nuclear Weapons."