Latest update: December 12th, 2012
Soon, Israel will have little choice but to preemptively destroy Iran’s developing capacity for nuclear weapons and nuclear war. Confronted by a declared enemy state that remains openly genocidal as it forges ahead with illegal nuclearization, Israel will face many tactical difficulties.
More precisely, in operationalizing anticipatory self-defense – which is international law’s formal expression for such a protective first strike – Israel will have to contend with Iran’s deliberate placement of nuclear materials, personnel and infrastructures in the midst of its civilian populations.
In essence, Iran – now led by a president who repeatedly calls upon the entire Islamic world to “wipe Israel off the map” – plans to dissuade Israel by deploying “human shields.” Apart from its obvious indecency, such practice is always a clear violation of humanitarian international law. Under the authoritative law of war, Iran’s placement of nuclear assets amidst noncombatant men, women and children represents a textbook example of “perfidy.”
Deception can be an acceptable virtue in warfare (and Iran considers itself at war with Israel), but there is a meaningful legal distinction between deception and perfidy. The Hague Regulations in the law of war allow deception but disallow perfidy. The prohibition of perfidy is reaffirmed in a law-making protocol of 1977. It is widely understood that these rules are also binding on the basis of customary international law. The Fourth Geneva Convention states plainly, that it is perfidy to shield military targets from attack by moving them into densely populated areas or by purposely moving civilians near military targets. Indeed, it is generally agreed by legal scholars that such treachery – precisely what President Bush warned about on February 10, 2003 in the case of Iraq – represents an especially serious violation of the law of war. This type of violation is known technically as a “grave breach” of the Geneva Conventions.
For Iraq, from which the current Iranian regime has drawn some of its lessons on perfidy, the insidious practice of human shields had been an ongoing strategy. Long before Operation Iraqi Freedom, Saddam Hussein had engaged in this illegal behavior before and during the 1991 Gulf War, both in his abuse of U.S. civilians around Iraqi military targets and in his abuse of Iraqi civilians around Baghdad’s military command centers. On one occasion, when coalition forces attacked a civilian defense shelter in Baghdad that was also being used as a military command center, Washington had correctly explained the action by citing Iraqi perfidy.
In terms of international law, Israel and the world should take particular note of the following: The legal effect of perfidy is always exculpatory for the attacker, at least from the standpoint of Jus In Bello, or “justice in war” (it has no effect at all on Jus Ad Bellum or the “justice of war”). In essence, it creates an exemption for the attacker from the normally operative humanitarian rules concerning permissible targets. It follows that any Iranian-created link between protected persons (civilians) and nuclear operations, would place all responsibility for subsequent civilian harms upon Iran. Any harms that might be inflicted by an attacker upon Iran’s human shields, would certainly be tragic and regrettable, but the legal responsibility for such harms would lie squarely with the genocidal Iranian leader and his government. Indeed, even specific criminal charges (carrying precise penal sanctions) could be assigned to Iran’s president, Mahmoud Ahmadinejad.
International law is not a suicide pact. When a state such as Iran engages in perfidious violations of the law of war, other countries seeking to prevent Iranian nuclear aggression, are still entitled to longstanding rights of self-defense. This entitlement extends to both the customary right of anticipatory self-defense – the right to use military force preemptively when the danger posed is “imminent” – and the codified right of retaliation following an armed attack. Should Iran resort to human shields to deter an Israeli preemption, as now seems certain, such perfidy would not limit any country’s right of self-defense against Iran. It would mean only that full legal responsibility for any consequent Iranian casualties would lie entirely with Iran.
In the coming months, Iranian president Ahmadinejad could decide to place thousands of additional civilians directly around nuclear facilities and/or within clandestine storage areas and pertinent command structures. Should it allow itself to be deterred by this newest resort to human shields, Israel would effectively permit Iran to make preparations for a war that could ultimately kill millions. Such “humanitarianism” by Israel (and perhaps by its American ally as well), however well-intentioned, would turn out to be misplaced. Jerusalem should continue to be guided in such matters by international law, by a time-honored set of rules, that correctly calls the emplacement of human shields “perfidy,” and that is designed to assist self-defense.
International law prohibitions notwithstanding, Iran has now been allowed by the United Nations and the world community to develop into an intolerable global menace. In such a dangerous situation, the legal right of self-defense against this menace is substantial. This right should not,under any circumstances, be inhibited by the Iranian president’s willful acts of perfidy.
Barring a near-miraculous political settlement with Iran, an Israeli preemption is altogether indispensable and would be consistent with governing international law. When it is undertaken, such an heroic act of anticipatory self-defense, which really ought to have been undertaken by the United States, will deserve our full support.
Copyright, The Jewish Press. All rights reserved.
LOUIS RENE BERES (Ph.D., Princeton, 1971) is the author of many books and articles dealing with international law.
About the Author: Louis René Beres (Ph.D., Princeton, 1971) is professor of political science and international law at Purdue University and the author of many books and articles dealing with international relations and strategic studies.
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