web analytics
October 26, 2014 / 2 Heshvan, 5775
At a Glance
InDepth
Sponsored Post
Meir Panim with Soldiers 5774 Roundup: Year of Relief and Service for Israel’s Needy

Meir Panim implements programs that serve Israel’s neediest populations with respect and dignity. Meir Panim also coordinated care packages for families in the South during the Gaza War.



Iran’s Unhidden Plan For Genocide: Israel’s Decision (Third of Three Parts)

Under all relevant criteria of international law, Iran's ongoing stance toward Israel remains unequivocally genocidal.

Louis Rene Beres

Louis Rene Beres

Published in the print edition under the title, “Iran’s Unhidden Plan For Genocide: A Legal Assessment (Third of Three Parts).” Click here for part one and here for part two.

In the post-Holocaust and post-Nuremberg international system, the right of individual states to defend themselves against genocide is overriding, and thoroughly beyond legal question.

This right does not stem directly from the language of the Genocide Convention, which does not explicitly link genocide to aggressive war, but it can still be extrapolated from (1) the precise legal language of anticipatory self-defense, including an 1837 case known as The Caroline; and (2) all subsequent authoritative reaffirmations of law identifiable at Article 38 of the Statute of the International Court of Justice. The right of anticipatory self-defense to prevent genocide can also be deduced from certain basic principles of self-protection codified at the Vienna Convention on the Law of Treaties, and, more generally, from the confluence of persistently anarchic international relations with now-obligatory norms of basic human rights.

Should Israeli decision-makers finally determine they do have a compelling right to act first against Iran to prevent genocidal aggression, any resultant Israeli resorts to preemptive force would still have to be consistent with the laws of war of international law, or the law of armed conflict. In detail, this would mean, for Israel, respecting the always indisputable primary belligerent requirements of “distinction” (avoiding injury to noncombatants), “proportionality,” and “military necessity.”

What about the future? What happens next concerning a steadily nuclearizing Iran? What about anticipatory self-defense in this particular case?

International custom is one of several proper sources of international law listed at Article 38 of the Statute of the International Court of Justice. Where it is understood as anticipatory self-defense, the customary right to preempt has its modern origins in an incident known in appropriate jurisprudence as The Caroline. During the unsuccessful rebellion of 1837 in Upper Canada against British rule, The Caroline had established that even a serious threat of armed attack may justify militarily defensive action.

In an exchange of diplomatic notes between the governments of the United States and Great Britain, then-U.S. Secretary of State Daniel Webster outlined a framework for self‑defense which did not require a prior attack. Here, military response to a threat was judged permissible, but only so long as the danger posed was “instant, overwhelming, leaving no choice of means and no moment of deliberation.”

Strategic circumstances and the consequences of strategic surprise have changed a great deal since The Caroline, thereby greatly (and sensibly) expanding legal grounds for anticipatory self-defense. Today, in an age of chemical/biological/nuclear weaponry, the time available to any vulnerable state under attack could be only a matter of minutes. From the special standpoint of Israel, soon to face an Iran armed with nuclear weapons, an appropriately hard-target resort to anticipatory self-defense could be both lawful and law-enforcing.

Before the start of the Atomic Age, any justification of anticipatory self-defense would have to have been limited to expected threats of aggression from other states, not genocide. Today, however, the conceivable fusion of nuclear weapons capacity with aggression could transform war into genocide. Although there are no true precedents of resorting to preemption as a law-enforcing means of preventing genocide or “conspiracy to commit genocide” by one state against another, the pertinent right to such pre-attack self-defense is rooted, inter alia, in The Caroline.

After all, if it was already legal, long before nuclear weapons, to strike preemptively in order to prevent entirely conventional aggressions, how much more permissible must it be to strike preemptively to defend against a potentially genocidal nuclear war?

Nonetheless, some legal scholars argue that the right of anticipatory self‑defense expressed by The Caroline has been overridden by the more limiting language of the United Nations Charter. In this view, Article 51 of the Charter offers a far more restrictive statement on self‑defense, one that relies on the strict qualification of a prior armed attack. This very narrowly technical interpretation ignores the larger antecedent point, that international law is never a suicide pact.

Sensibly, law can never compel a state to wait until it has absorbed a devastating or even genocidal first strike before acting to protect itself. Both the Security Council and the General Assembly correctly refused to condemn Israel for its 1967 preemptive attacks. Incorrectly, however, whether or not it had then accepted the existence of a formal state of war between Israel and Iraq – a condition of belligerency openly insisted on by Baghdad – the UN did condemn Israel for Operation Opera in 1981. Of course, this legally incorrect condemnation was the direct result of regionally recurrent circumstances, conditions wherein an exterminatory power politics or geopolitics trumps law.

About the Author: Louis René Beres, strategic and military affairs columnist for The Jewish Press, is professor of Political Science at Purdue University. Educated at Princeton (Ph.D., 1971), he lectures and publishes widely on international relations and international law and is the author of ten major books in the field. In Israel, Professor Beres was chair of Project Daniel.


If you don't see your comment after publishing it, refresh the page.

Our comments section is intended for meaningful responses and debates in a civilized manner. We ask that you respect the fact that we are a religious Jewish website and avoid inappropriate language at all cost.

If you promote any foreign religions, gods or messiahs, lies about Israel, anti-Semitism, or advocate violence (except against terrorists), your permission to comment may be revoked.

No Responses to “Iran’s Unhidden Plan For Genocide: Israel’s Decision (Third of Three Parts)”

Comments are closed.

SocialTwist Tell-a-Friend

Current Top Story
Terrorists attack Israeli soldiers with a Molotov cocktail in Arab village near Ramallah.
Palestinian Authority-American Shot Dead while Trying to Kill Jews
Latest Indepth Stories
British Flag

{Originally posted on author’s site, Liberty Unyielding} Never let a crisis go to waste. That’s the mantra – and a new development in Britain demonstrates how the Western left lives by it, and contributes thereby to the destruction of Western culture. Alert readers will remember the so-called “Trojan Horse plot” in Birmingham, first reported in […]

quiet

Introverts are more likely to pause, view the world from a distance, and think how to make it better

Lewis-102414-Nachal-Hareidi

I couldn’t see why I was different from Israeli boys my age. I too wanted to defend our country.

Eller-102414-Cart

I had to hire a babysitter so that I could go shopping or have someone come with me to push Caroline in her wheelchair.

Widespread agreement in Israel opposing Palestinian diplomatic warfare, commonly called “lawfare.”

Arab terrorism against Jews and the State of Israel is not something we should be “calm” about.

The Israeli left, led by tenured academics, endorses pretty much anything harmful to its own country

We were devastated: The exploitation of our father’s murder as a vehicle for political commentary.

Judea and Samaria (Yesha) have been governed by the IDF and not officially under Israeli sovereignty

While not all criticism of Israel stemmed from anti-Semitism, Podhoretz contends the level of animosity towards Israel rises exponentially the farther left one moved along the spectrum.

n past decades, Oman has struck a diplomatic balance between Saudi Arabia, the West, and Iran.

The Torah scroll which my family donated will ride aboard the USS Gerald R. Ford aircraft carrier

The Jewish Press endorses the reelection of Gov. Andrew Cuomo. His record as governor these past four years offers eloquent testimony to the experience and vision he has to lead the Empire State for the next four years.

I think Seth Lipsky is amazing, but it just drives home the point that newspapers have a lot of moving parts.

More Articles from Louis Rene Beres
Louis Rene Beres

President Obama’s core argument on a Middle East peace process is still founded on incorrect assumptions.

Louis Rene Beres

Once upon a time in America, every adult could recite at least some Spenglerian theory of decline.

President Obama’s core argument is still founded on incorrect assumptions.

Specific strategic lessons from the Bar Kokhba rebellion.

Still facing an effectively unhindered nuclear threat from Iran, Israel will soon need to choose between two strategic options.

For states, as for individuals, fear and reality go together naturally.

So much of the struggle between Israel and the Arabs continues to concern space.

An undifferentiated or across-the-board commitment to nuclear ambiguity could prove harmful to Israel’s’s overall security.

Printed from: http://www.jewishpress.com/indepth/columns/louis-bene-beres/irans-unhidden-plan-for-genocide-a-legal-assessment-third-of-three-parts/2013/04/04/

Scan this QR code to visit this page online: