The following article was written March 30, 1992.
At the conclusion of the recent [first] Gulf War (Operation Desert Storm), the [first] Bush administration announced plans to sell Saudi Arabia, a country of six million inhabitants, an arms package. Included were over 500 tanks, 48 F-15 fighter planes, Apache helicopter gun ships, more than 30 Patriot batteries, tens of thousands of armored vehicles, multiple rocket-launchers and command/control systems. Rationalizing the Saudi demand for this vast arsenal by pointing to the “growing danger from Iran,” the Bush administration ignored that such American arms can be used for direct or indirect aggression against Israel.
Indeed, the Saudi Arabia that joined in the coalition to defeat Saddam now appears relatively benign. Nevertheless, this monarchy has been busily compensating the Assad regime in Syria with billions of dollars in aid – money to be used entirely for Syria’s ongoing military buildup. During the last several months, Pakistan has received new M-11 missiles from China; Brazil may have concluded a secret deal with the Libyan Air Force to provide technical assistance to service Libyan warplanes; China entered into a reactor project with Algeria that may well have nuclear-weapon-related implications; China exported missile- or nuclear-weapons related technology to Egypt, Algeria, Libya, Syria, Saudi Arabia, Iran and Pakistan; Iran tested a modified version of the Soviet SCUD-C intermediate range ballistic missile and has reportedly spent, since March, 1990, at least $200 million annually on a nuclear weapons program aided by Pakistan, Argentina, and China.
Last May (1991), President Bush called for restraint in weapons sales to the Middle East. Since then, the U.S. has transferred approximately $6 billion in arms to the region, according to the Arms Control Association. Figures compiled from Pentagon, congressional and other government sources reveal that the United States spent $19 billion in weapons to the Middle East in the seventeen months since Iraq invaded Kuwait. Saudi Arabia was provided with $14.8 billion worth of arms (much of it now being trans-shipped to Syria) while Egypt, which coexists in an increasingly cold peace with Israel, received $2.17 billion in weapons. Other advanced U.S. weapons have been sent to Kuwait, Morocco, Oman, Bahrain and the United Arab Emirates.
What is Israel to do? Recognizing that its principal (and only) powerful friend has become the principal benefactor of its sworn enemies, it understands that the vaunted peace talks can never succeed, and that self-reliance is all that stands in the way of extinction as a state. Israel is faced with the prospect of Iranian nuclear missiles that will be capable of counterforce attacks upon airfields of the Israeli Air Force, and later – upon Israeli civilian populations. Jerusalem will soon have to decide whether it would be better to absorb enemy first strikes and confront a possible end to the “Third Temple Commonwealth,” or to strike first itself. It should not be a difficult decision. If it waits too long to decide, Iran will industriously multiply, disperse and harden the core elements of its developing nuclear infrastructures.
International law is not a suicide pact. The right of self-defense, by forestalling an attack, was established jurisprudentially in the 17th century. Today, in an age of uniquely destructive weaponry, international law does not expect Israel to wait calmly for its own annihilation.
What does the plausible convergence of strategic and jurisprudential assessments of preemption suggest about Israel’s prospective consideration of striking first? Above all else, it suggests that Israel need not necessarily be deterred from appropriate forms of preemption out of fear that its actions will be described as criminal. Predictably, a substantial number of states will condemn Israel for “aggression” under any circumstances. However, this charge – if Israel’s preemptive strikes meet the expectations of jus ad bellum (justice of war) and jus in bello (justice in war) – could be countered authoritatively and effectively by references to international law.
The right of self-defense by forestalling an attack was already established by Hugo Grotius in Book II of The Law of War and Peace in 1625. Recognizing the need for “present danger” and threatening behavior that is “imminent in a point of time,” Grotius indicates that self-defense is to be 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….”
A similar position is taken by Emmerich de Vattel. In Book II of The Law of Nations (1758), Vattel argues: “The safest plan 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. It may even anticipate the other’s design, being careful, however, not to act upon vague and doubtful suspicions, lest it should run the risk of becoming itself the aggressor.”
Appropriately, in view of present concerns, both Grotius and Vattel parallel the Jewish interpreters, although the latter speak more generally of interpersonal relations than of international relations in particular. The Torah contains a provision exonerating from guilt a potential victim of robbery with possible violence if, in self-defense, he struck down and, if necessary, even killed the attacker before he committed any crime (Ex. 22:1). In the words of the rabbis, “If a man comes to slay you, forestall by slaying him!” (Rashi; Sanhedrin 72a).
Grotius and Vattel both caution against abusing the right of anticipatory self defense as a pretext for aggression, but this is an abuse that Israel – in its current configuration of ties to Iran and the Arab world – cannot possibly commit. Iran and the entire Arab world, excepting Egypt, consider themselves in a formal condition of war with the Jewish state. Hence, any Israeli preemption against any of its pertinent Islamic enemies would, in the strictest legal sense, not be an act of anticipatory self-defense, but rather only one more military operation in an ongoing and protracted war. It follows that such an operation’s legality would have to be appraised exclusively in terms of its conformance with the laws of war of international law (jus in bello). To identify such an operation as an act of aggression against another state that has already declared itself at war with Israel would be jurisprudential nonsense.
(To be continued)
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LOUIS RENE BERES (Ph.D. Princeton) is the author of many books dealing with international relations and international law. His Security Or Armageddon: Israel’s Nuclear Strategy (1986) remains an early authoritative treatment of the subject. He is Strategic and Military Affairs columnist for The Jewish Press and Chair of “Project Daniel.”