Israel now faces grave dangers from Iran, a hostile Islamic state deeply involved in production of nuclear and certain other weapons of mass destruction. In essence, the Jewish State will soon have only two options vis-a-vis Iran: 1) sit tight, do nothing militarily, and hope that deterrence, political agreemeents and/or economic sanctions will prevent Iranian mega-aggression; or 2) strike preemptively against pertinent military targets, thereby expressing what international law calls “anticipatory self-defense.” Should it choose the former, Israel would avoid offending the “international community,” Yet, this choice would carry a substantial risk of inviting unconventional war and unconventional terrorism. Should it choose the second option, Israel would give offense to the international community and very likely undermine its special relationship with Washington, but it would also likely reduce the risk of overwhelming destruction from Iran. The second option would generate unpopularity for Israel, and would probably be less than entirely effective, but it would assuredly be more gainful than being popularly dead.
Does Israel have the right to strike first under international law? In the best of all possible worlds, reasonable concerns about an over broad right of anticipatory self-defense would be well taken. Here, for example, a specially-constituted world body – a UN-type institution displaying both real authority and real capability – could ensure that powerful aggressor states do not act at will. But we do not yet live in such a world. Instead, states continue to coexist within the decentralized dynamics of Westphalian law that have obtained since the middle of the 17th Century. In this world, one still very much like the world satirized by Voltaire’s Candide, states that would renounce altogether the right of anticipatory self-defense could be blatantly suicidal. For a state such as Israel, a state less than half the size of San Bernardino County in California and smaller than Lake Michigan, a state that is surrounded by 22 hostile Arab states,(soon to be 23, after the creation of “Palestine”) such renunciation could be tantamount to an acceptance of its own genocide.
It is true that the right of anticipatory self-defense can be abused and that maintaining this right under international law always carries certain serious risks. Yet, an across the board renunciation of anticipatory self-defense would carry even greater risks. Indeed, where it is supported by distinguished scholars, the informed argument for anticipatory self-defense has assuredly grown stronger in the nuclear age. Waiting patiently to absorb an enemy attack before striking could now represent the reductio ad absurdum of “legalism” in international law. This is the fallacy or error in reasoning that treats law as an automatically effective set of rules.
The right of self-defense by forestalling an attack appears in Hugo Grotius’ The Law of War and Peace (1625). Recognizing the need for protection against “present danger” and threatening behavior that is imminent in point of time, Grotius indicates that self-defense is permitted not only after an attack has already been suffered, but also in advance, where “the deed may be anticipated.” Or, as he says a bit further on in the same chapter, “It be lawful to kill him who is preparing to kill….”
Emmerich de Vattel takes a similar position in his The Law of Nations (1758). Here, he argues that it is lawful to resist and even to anticipate attacks by other nations so long as aggression is truly forthcoming. “The safest plan,” says Vattel, “is to prevent evil, where that is possible. A Nation has the right to resist the injury another seeks to inflict upon it, and to use force and every other just means of resistance against the aggressor.”
Today, some scholars argue that the specific language of Article 51 of the UN Charter overrides the customary right of anticipatory self- defense. In this view, which effectively undermines the authoritative non-treaty sources of international law identified at Article 38 of the Statute of the International Court of Justice, Article 51 fashions a new and far more restrictive statement of self-defense. This narrow interpretation ignores that international law must refuse to compel a state to wait until it absorbs a devastating or even lethal first strike before acting to protect itself. Regarding Israel’s preemptive attack in June 1967, neither the Security Council nor the General Assembly censured this attack, thereby signifying implicit approval by the United Nations of this particular resort to anticipatory self-defense.
During the Persian Gulf War in 1991, in a flagrantly lawless action, Iraq launched 39 Scud missile attacks directly against Israeli civilian populations. On October 7, 1991, more than seven months after the conclusion of hostilities, UN inspectors discovered a complex of buildings that had served as Saddam Hussein’s covert nuclear weapons program. It was here, at an installation called Al Atheer, about 40 miles south of Baghdad, that Iraq planned to “design and produce a nuclear device.” And these preparations were underway after Israel’s strike at the Osiraq reactor 10 years earlier.
What would have been Israel’s fate, after absorbing 39 Iraqi missile attacks during the Gulf War, if Prime Minister Begin had not previously asserted the right of anticipatory self-defense under international law in Israel’s 1981 destruction of Baghdad’s Osiraq reactor? One needn’t have a good imagination to answer this particular question! Would Israel’s critics have preferred Israel to absorb multiple nuclear attacks as the price of conforming to his restrictive view of permissible self-defense? Would this have been a reasonable preference under international law? I think not.
For the Arab world, Israel was the aggressor in 1948 and, again, in 1967. Significantly, when Israel avoided preemptive measures in 1973, an avoidance Israel’s critics would doubtless describe as lawful, the resultant Arab surprise attack on Yom Kippur almost ended in a total Israeli defeat.
Regarding the War of 1948, the United Nations placed responsibility for aggression on the Arab states. The UN Palestine Commission was never permitted by the Arabs or the British to go to Palestine to implement the resolution of the General Assembly. On February 16, 1948, the Commission reported to the Security Council: “Powerful Arab interests, both inside and outside Palestine, are defying the resolution of the General Assembly and are engaged in a deliberate effort to alter by force the settlement envisaged therein.”
The Arabs themselves were altogether open in accepting responsibility for starting their first war on Israel. Jamal Husseini told the Security Council on April 16, 1948: “The representatives of the Jewish Agency told us yesterday they they were not the attackers, that the Arabs had begun the fighting. We did not deny this. We told the whole world that we were going to fight.” As for the British commander of Jordan’s Arab Legion, John Bagot Glubb, he commented as follows: “Early in January, the first detachments of the Arab Liberation Army began to infiltrate into Palestine from Syria. Some came through Jordan and even through Amman….They were in reality to strike the first blow in the ruin of the Arabs of Palestine.”
Israel came into being on May 14, 1948. The five Arab armies of Egypt, Syria, Transjordan, Lebanon and Iraq immediately invaded the new ministate. Their combined intention was expressed publicly by Azzam Pasha, Secretary General of the Arab League: “This will be a war of extermination and a momentous massacre which will be spoken of like the Mongolian massacres and the Crusades.” This is the war Arab states still seek to defend under international law.
Let us consider the 1967 (Six-Day) War. On May 15, Israel’s Independence Day, Egyptian troops began moving into the Sinai, massing near the Israeli border. By May 18, Syrian troops, too, were preapring for battle along the Golan Heights, where – from 3000 feet above the Galilee, they had shelled Israel’s farms and villages with impunity for years. Egypt’s Nasser ordered the UN Emergency Force, stationed in the Sinai since 1956, to withdraw. After the withdrawal of the UNEF, the Voice of the Arabs proclaimed, on May 18, 1967: “As of today, there no longer exists an international emergency force to protect Israel. We shall exercise patience no more. We shall not complain any more to the UN about Israel. The sole method we shall apply against Israel is total war, which will result in the extermination of Zionist existence.” Two days later an enthusiastic echo came from Hafez Assad, then Syria’s Defense Minister: “Our forces are now entirely ready…to initiate the act of liberation itself, and to explode the Zionist presence in the Arab homeland …the time has come to enter into a battle of annihilation.” President Abdur Rahman Aref of Iraq, a country now more closely identified with the aggressions of recently-deposed Saddam Hussein, joined the chorus of genocidal threats: “The existence of Israel is an error which must be rectified.
This is our opportunity to wipe out the ignominy which has been with us since 1948. Our goal is clear – to wipe Israel off the map.” On June 4, Iraq formally joined the military alliance with Egypt, Jordan and Syria. On June 7, 1981, Israeli fighter-bombers destroyed Iraq’s Osiraq nuclear reactor shortly before it was to go “on line.” At the time, the general community reaction was overwhelmingly hostile. Even the UN Security Council, in Resolution 487 of June 19, 1981, indicated that it “strongly condemns” the attack and that “Iraq is entitled to appropriate redress for the destruction it has suffered.”
No less than Israel’s own citizens, both Jews and Arabs, American and other coalition soldiers who fought in the 1991 Gulf War may owe their lives to Israel’s courage, skill and foresight in June 1981. Had it not been for the raid at Osiraq, Saddam Hussein’s forces might have been equipped with atomic warheads in 1991. Ironically, the Saudis, too, are in Jerusalem’s debt. Had it not been for Prime Minister Begin’s resolve, Saddam’s Scuds falling on Saudi Arabia might have spawned immense casualties and lethal irradiation.
The jurisprudential correctness of Israel’s 1981 expression of anticipatory self-defense against Iraq is manifestly obvious. International law is not a suicide pact. Narrowly technical interpretations of permissible force notwithstanding, no state – Israel included – can be required to invite overwhelming aggression. Recently this point was made with considerable specificity in a report to Prime Minister Sharon by “Project Daniel.” This report, ISRAEL’S STRATEGIC FUTURE, is now available online, and should be studied closely in the months ahead by all interested parties.
Copyright (c) The Jewish Press. All rights reserved.
LOUIS RENE BERES, (Ph.D., Princeton, 1971) is Chair of “Project Daniel.”