Justifying An Israeli Preemption Against Iran Under International Law: Osiraq And 'Anticipatory Self-Defense',Prof. Louis Rene Beres and Col. (IDF/Res.) Yoash Tsiddon-Chatto

Israel now faces the distinctly plausible prospect of a nuclear Iran. Fearing just such a development, the Project Daniel group had already advised former Prime Minister Ariel Sharon back in January 2003 that Israel do everything legally and operationally possible to prevent it. Our then, still-confidential recommendations included, if necessary, the preemptive destruction of key Iranian nuclear assets and infrastructures. Such an essential action, we understood, could fulfill the authoritative criteria of "anticipatory self-defense."

There is both a legal and strategic precedent for preemptive action against Iran. More than a quarter-century has now passed since Israeli fighter-bombers destroyed Iraq's Osiraq nuclear reactor shortly before it was ready to go "on line." At the time, the general global community reaction was hostile. Even the UN Security Council, in Resolution 487 of June 19, 1981, said that it "strongly condemned" the attack and that "Iraq is entitled to appropriate redress for the destruction it has suffered."

But Israel's unilaterally defensive action of June 7, 1981, now looks very different. We know presently that Saddam Hussein's plans to build a French-supplied reactor at his nuclear research center at Tuwaitha were designed to produce militarily usable plutonium. The reason that American and allied forces did not face a nuclear adversary in 1991 during Operation Desert Storm is partially because of Israel's earlier resort to anticipatory self-defense. Israel's "Operation Opera" at Osiraq is therefore also largely the reason that United States forces did not find nuclear weapons in Iraq at the start of Operation Iraqi Freedom.

International law is not a suicide pact. Under long-standing customary international law, every state is entitled to strike first when the danger posed is "instant, overwhelming, leaving no choice of means, and no moment for deliberation." With respect to the openly genocidal regime currently ruling in Tehran, this right for Israel is now clear and incontestable. Well within the range of Iranian missiles, Israel could be obliterated by only one or two nuclear warheads. As to the western democracies, they are always quick to condemn Iran's nuclearization, but are once again loath to actually do anything meaningful.

Israel did not commit aggression at Osiraq. Iraq had always insisted that a state of war existed with "the Zionist entity." As aggression cannot be committed against a state with which a country is already at war, Jerusalem could not possibly have been guilty of a "crime against peace" on June 7, 1981.

Israel did not violate the international laws of war at Osiraq. Fourteen Israeli aircraft took part in the raid - eight F-16 Falcons, each carrying two 1000-kilogram bombs, and six F-15 Eagles serving as escort planes. The reactor was completely destroyed, without civilian casualties and before any radiation danger existed. Unlike Iraq's 39 Scud attacks on Israel during the Gulf War, which were designed to harm civilians, Israel's raid on Osiraq was executed for the protection of civilians.

Israel's defensive strike against an outlaw enemy state preparing for extermination warfare was distinctly law enforcing. International law must often rely upon individual states to act on behalf of the entire global community. This is exactly what took place at Osiraq, when Israel's fighter-bombers precluded an Iraqi nuclear option. Today, when waiting to absorb a "first shot" from Iran could sentence a New Jersey-sized state like Israel to literal disappearance, the right of anticipatory self-defense should be widely acknowledged. Of course, it remains easy for both Israel's allies and critics to deny the Jewish state its legal and moral right to protect itself by citing "aggression," but such denials will ultimately come to impair their own security as well.

It is now surely the time for the world community to acknowledge the obvious: Israeli preemptive action in 1981 was an indispensable act of international law enforcement. Regarding future essential resorts to anticipatory self-defense, whether by Israel or by any other state facing unconventional aggression, such an acknowledgment could provide an important incentive to do what is needed to save human lives. Although the operational requirements to prevent or delay Iran's acquisition of nuclear arms are substantially more complex than what was needed at Osiraq (Iranian nuclear-related assets are multiplied, hardened and dispersed), a failure to attempt preemption altogether could threaten the lives of millions of Israelis, Americans and Europeans.

Any preemption must conform to the settled rules of international law. It is not permissible for a state to invoke "anticipatory self-defense" merely because it feels threatened. Rather, the danger posed must be imminent and substantial. In its original 19th-century expression, anticipatory self-defense required a situation that was actually "instant, overwhelming, leaving no choice of means and no moment for deliberation." Today, however, in a nuclear age, reasonableness dictates a loosening of this requirement in particular circumstances. After all, waiting too long to satisfy the requirement of "imminence" could easily be suicidal.

Any country that resorts to anticipatory self-defense must also satisfy the Law of Armed Conflict. This means that the force used in such strikes must fall within the bounds of "discrimination," "proportionality" and "military necessity." Under Humanitarian International law, every use of force must be judged twice: once with regard to the justness of the cause and once with regard to the justness of the means. Concerning just means, the extensive Iranian practice of "human shields" - termed "perfidy" under international law − makes it likely that any defensive first strike by Israel would unwittingly injure or kill Iranian civilians. Significantly, the full legal responsibility for all such harms would fall upon Tehran, not Jerusalem.

Regional and world security are now imperiled by still-ongoing military commerce with Iran. These transfers, from certain major states to Iran, of dangerous materials, unconventional weapons know-how and infrastructure are rapidly advancing and ensuring Teheran's determined efforts to acquire nuclear weapons. In the continuing absence of essential collective security for Israel, the time has now arrived for a greatly strengthened commitment to self-defense rights in world affairs. Israel acted in unmistakable support of these basic rights back in June 1981. Today, many years later, we must immediately ask ourselves whether the critical lessons of Osiraq shall finally be taken seriously, and whether they shall also be learned in time.

LOUIS RENE BERES (Ph.D. Princeton, 1971) is the author of many books and articles dealing with international law. He is Chair of Project Daniel, a private nuclear advisory group to former Israeli Prime Minister Ariel Sharon.

YOASH TSIDDON-CHATTO, a member of Project Daniel, served in the 12th Knesset. A colonel (res.) in the Israel Defense Forces, he was Chief of Air Force R & D and Planning in the Israel Air Force. Col. Tsiddon-Chatto is a graduate of the Ecole Superieure de Guerre Aerienne, Paris, and was a member of the first Israeli peace mission to Madrid in 1991.

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