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On Existential Threats And Lethal Remedies A Jurisprudential View (Part II)


Beres-Louis-Rene

The following Keynote Address was delivered by Professor Beres to the Intelligence Summit in St. Petersburg on March 5, 2007. It is published here for the very first time in its original form. These formal remarks presented by our own Strategic and Military Affairs analyst to very senior members of the military and intelligence communities (U.S., Israeli and certain others) remain starkly relevant and timely.

Let me return very specifically to preemption, in counter-terrorist operations, and in national self-defense against existential threats from other states. In this regard, there are two basic considerations before us here at the conference: legal and operational. Naturally, our capacity to succeed on both dimensions at the same time will sometimes be problematic. Moreover, there are potentially important trade-offs, and also interactions or synergies between the legal and the operational considerations that should be better understood.

Whether or not we can argue persuasively for preemption in purely operational terms (and that will depend, inter alia, upon the complexities of each pertinent theatre of conflict), there is a determinable right under international law called anticipatory self-defense. The “international community” may typically frown upon such a right as merely pretext for defensive first-strikes (and they are ideas that can conceivably be abused), yet, reciprocally, no government is ever obliged to compel its citizens to simply sit back, and await their unresisted annihilation. In 1996, in an authoritative advisory opinion, the International Court of Justice ruled that, in certain existential circumstances, a state may even have the defensive right to resort to nuclear weapons.

Today, the risks in certain circumstances of not striking first are perhaps greater than ever before.

Anticipatory self-defense is an expression of customary international law. The sources of International Law are found at Art. 38 of the Statute of the International Court of Justice. There, “international custom” is identified expressly as a fully authoritative source.

Back to Iran. We already know that Iran today is not Iraq on June 7, 1981, the day of Israel’s “Operation Opera” strike against the Osiraq nuclear reactor near Baghdad. We already know, operationally, that any act of anticipatory self-defense against hardened/dispersed/multiplied Iranian nuclear infrastructures and command control facilities would entail huge and possibly intolerable strategic, political and human costs. Nonetheless, we must always compare these expected costs to the presumed costs of not preempting at all. Recalling judgments regarding perfidyunder the law of war, many expected Iranian civilian casualties following an American and/or Israeli preemption would prove, perhaps indisputably, to be the legal responsibility of Iran.

International law is not a suicide pact. We are not obligated to sit back and try to coexist with a fully nuclearized Iran, especially an Iran that remains openly indifferent to its codified Nonproliferation Treaty (NPT) obligations, and that maintains a persistently genocidal orientation toward Israel. The inherent limits of any fixedly defensive posture, articulated most famously by Sun-Tzu, were recalled last week in an article I published together with Major-General Paul Vallely.

Let me conclude with some specific recommendations of Project Daniel(completed in mid-January 2003, several months before the start of Operation Iraqi Freedom). We (The Project Daniel Group) linked anticipatory self-defense to various alternative preemption scenarios, and to the National Security Strategy of the United States of America (September 20, 2002). We also examined and endorsed expanded strategic cooperation between Washington and Jerusalem, with particular reference to maintaining Israel’s “qualitative edge.” Among other things, Project Daniel looked very closely at a recommended “paradigm shift” to deal with ascending low-intensity and long-range WMD threats to Israel. We also considered the specific circumstances under which Israel should purposefully end its current posture of “deliberate nuclear ambiguity.”

The Project Daniel Group, comprised primarily of very senior (retired) figures from the Israeli military and intelligence communities, urged continuance of constructive support to the US-led War On Terror. We stipulated that Israel should combine a strengthening of multilayered active defenses with a credible, secure and decisive nuclear deterrent. The shortfalls of too great a reliance on the Arrow anti-ballistic missile (ABM) are also detailed in other articles I co-authored recently with Lt. General Thomas McInerney, and with Major-General Isaac Ben-Israel (IDF/Israel Air Force).

To meet IMOD/IDF mission goals, Israel’s recognizable retaliatory force should be fashioned with the capacity to destroy some 10 – 20 high-value targets scattered widely over certain enemy states in the Middle East. Early on, The Project Daniel Grouprecognized a very basic asymmetry between Israel and portions of the Arab/Iranian world concerning the desirability of peace, the absence of democracy, the acceptability of terror as a legitimate weapon, and the relative size of populations. Importantly, The Project Daniel Group concluded, inter alia, that non-conventional exchanges between Israel and its enemies must always be avoided. We argued, back in 2003, that Israel must never allow a nuclear Iran, and that it must prepare, both tactically and jurisprudentially, for lawful preemptive strategies, even if the United States and the larger “international community” should choose to reject and condemn the preemption option.

Thomas Jefferson, as an avid reader and philosopher, was familiar with the writings of Cicero, Grotius, Burlamaqui, Pufendorf, van Bynkershoek, Vattel and, of course, Locke. In several of his “lesser” writings, Jefferson argued firmly, on the express basis of Natural Law, that all states always have an overriding obligation to endure. This argument, reinforced in 1996 by the International Court of Justice advisory opinion on nuclear weapons, is even more compelling today than it was in earlier centuries.

Odd as it may first appear, even assassination and preemption may sometimes have a distinctly lawful and proper place in purposeful considerations of counter-terrorism, national security and national survival.

International law is not a suicide pact.

LOUIS RENÉ BERES (Ph.D., Princeton, 1971), Strategic and Military Affairs analyst for The Jewish Press, is the author of many major books and articles dealing with nuclear strategy issues, terrorism and international law. Professor Beres was born in Zürich, Switzerland, on August 31, 1945.

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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