web analytics
October 25, 2014 / 1 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.



Israel And Its Enemies: Future Wars And Forceful Options (Third of Three Parts)


Beres-Louis-Rene

The following originally appeared in The Jewish Press in March 1992. Today, nearly twenty years later, its arguments remain timely and valid.

Even if Iran and the Arab enemies of Israel were not in a declared condition of belligerence with the Jewish state, Israel’s preemptive action could still be entirely law-enforcing. The customary right of anticipatory self-defense has its modern origins in the Caroline incident, which concerned the unsuccessful rebellion of 1837 in Upper Canada against British rule (a rebellion that aroused sympathy and support in the American Border States). Following this case, the serious threat of armed attack has generally been taken to 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 that did not require an actual attack. Here, military response to a threat was judged permissible so long as the danger posed was “instant, overwhelming, leaving no choice of means and no moment for deliberation.”

Today, some scholars argue that the customary right of anticipatory self-defense articulated by the Caroline has been overridden by the specific language of Article 51 of the UN Charter. In this view, Article 51 fashions a new, and far more restrictive, statement of self-defense, one that relies on the literal qualification contained at Article 51 “if an armed attack occurs.” This interpretation ignores that international law cannot compel a state to wait until it absorbs a lethal or even a devastating first strike before acting to protect itself.

The argument against the restrictive view of self-defense is reinforced by the apparent weaknesses of the Security Council in offering collective security against an aggressor. Moreover, both the Security Council and the General Assembly refused to censure Israel for its 1967 preemptive attack against certain Arab states, signifying implicit approval by the United Nations of Israel’s particular resort to anticipatory self-defense.

Before Israel could persuasively argue any future instances of anticipatory self-defense under international law, a strong case would have to be made that it had first sought to exhaust peaceful means of settlement. Even a broad view of the doctrine of anticipatory self-defense does not relieve a state of the obligations codified at Article 1, and at Article 2(3) of the UN Charter.

Strictly speaking, of course, these obligations should not be binding upon Israel because of the condition of belligerency declared by its Arab enemies, but, as a practical matter, the global community seems generally to have ignored this condition. It follows that Israel, should it decide upon future instances of “preemption,” would be well advised to demonstrate its prior efforts at peaceful settlement.

Looking over the more than [sixty] years of conflict between Israel and certain Arab states, Israel itself has generally defended its resorts to military force as measures of self-help short of war. For the most part, such defense has had the effect of shifting the burden of jurisprudential responsibility for lawful behavior from the Arab states to Israel, an unfortunate shift because it focuses blame unfairly upon the Jewish state. Furthermore, Israel has often identified its uses of military force as “reprisals,” thereby choosing a problematic concept under international law that compounds one legal mistake with another.

Because under the current Charter system of international law the right of reprisal is essentially contingent upon self-defense, it would be wise for Israel – so long as it chooses to ignore or downplay the declared condition of war announced by its enemies as grounds for different legal justifications for resort to armed force – to confine its rationale of military operations to the continuing right of self-defense. This would be especially reasonable in view of the fact that Israel now faces the threat not only of war, but of genocide.

Genocide is a word with precise jurisprudential meaning. Codified at the Genocide Convention, a treaty that entered into force on January 12, 1951, it means any of a series of stipulated acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such….” The key to understanding and identifying genocide lies in the “intent to destroy.” Genocide can take different forms. Its victims can be transported to the gas or the gas can be brought to the victims. Either way, the effect is the same: intentional mass murder of defenseless civilian populations.

Ideally, the United States will soon recognize Israel’s precarious position and take decisive steps to reduce Iranian and other preparations for renewed aggression. Failing such steps, Israel may conclude that prompt non-nuclear preemption, as an expression of “anticipatory self-defense” in international law, is the only way to protect itself. Preemption may in fact be the best available means of reducing the risk of regional nuclear war.

There is a lesson in all this for Israel’s enemies and her friends. The real danger to peace in the Middle East is not intercommunal conflict with the Palestinians, but war, and it is in Tehran especially, not Jerusalem, that war is being prepared. Should these preparations continue at a rate that remains ominous for essential Israeli security, Israel will almost certainly have to strike first itself. Should the United States seek genuine stability for the region, it will have to avoid treating Iran as a non-risk factor. Assuredly, Jerusalem cannot base its survival upon the ways of Washington geopolitics.

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 “Israel And Its Enemies: Future Wars And Forceful Options (Third of Three Parts)”

Comments are closed.

SocialTwist Tell-a-Friend

Current Top Story
Do you know where your vegetables grow?
Not So Kosher Shemittah L’Mehadrin
Latest Indepth Stories
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.

Bills to restore the balance of power in Israel will be fought by the not-so-judicial left.

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

Chaye Zisel Braun

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

Peace Now Chairman Yariv Oppenheimer

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.

Myth #1: It is easy to be a B’nai Noach. It is extraordinarily hard to be a B’nai Noach.

The question of anti-Semitism in Europe today is truly tied to the issue of immigration.

Polls indicate that the Palestinians are much more against a two state solution than the Israelis.

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/israel-and-its-enemies-future-wars-and-forceful-options-third-of-three-parts-2/2011/11/23/

Scan this QR code to visit this page online: