International law is not a suicide pact.
As Iranian nuclearization heats up to a point of no return, Israel’s leaders will soon have to make vitally important decisions on launching defensive first strikes. Faced with an existentially hostile regime in Tehran, these leaders cannot now be expected to simply sit back and wait for this regime to deploy atomic weapons. Less than half the size of Lake Michigan, Israel’s “wiggle room” in strategic survival matters is profoundly limited.
There are additional complicating factors to be considered. Although Israel has never publicly threatened Iran with preemption, this Islamic Republic has disingenuously extrapolated such a threat from an awareness of its own aggressive intentions. Knowing full well that Israel has much to fear from Iran’s dangerous nuclear program, Iran’s leaders now merely assert that the “Zionist Entity” is preparing for a preemptive strike. Moreover, despite the complete absence of any threats from Israel, Iran now menaces openly and repeatedly to strike first. In essence, Iran now threatens, somewhat caricaturely, to preempt an anticipated preemption.
Such Iranian rhetoric is severely destabilizing and irresponsible. Within a relatively short time, Israel – facing the prospect not only of Iranian nuclear aggression, but also of “counterforce” non-nuclear attacks disguised as preemptions – could have little choice but to strike first itself. Such a preemption, assuredly non-nuclear, would effectively be mandated by an Iranian-induced escalatory spiral of strategic ambiguities. Although it is likely that Israel’s impressive “Arrow” ballistic missile defense would afford some substantial protection from incoming “countervalue”-targeted nuclear warheads, this system would inevitably have some “leakage.” With nuclear weapons, NO leakage could conceivably be tolerable.
Israel, facing certain and unambiguously genocidal Arab attacks in June 1967, opted correctly to strike first, itself. From the standpoint of international law, this preemption against military targets was a textbook example of “anticipatory self-defense.” Looking ahead, what do we know about the history and authority of this major legal concept?
“International custom” is one of several 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 “the Caroline Incident.” Here, during the unsuccessful rebellion of 1837 in Upper Canada against British rule, it was established that the 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. 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 of deliberation.”
Strategic circumstances and the consequences of strategic surprise have changed a great deal since the Caroline. Today, in an age of chemical, biological, and nuclear weaponry, the time available to a vulnerable state could be only a matter of minutes. From the standpoint of Israel, now facing a prospect of certain sworn adversaries armed with nuclear weapons, there is every reason to believe that an appropriately hard-target resort to anticipatory self-defense could be entirely lawful.
Some legal scholars argue that the right of anticipatory self-defense expressed by the Caroline has now been overridden by the specifically limiting language of the United Nations Charter. In this view, Article 51 of the Charter fashions a more restrictive statement on self-defense, one that relies on the literal qualification of a prior “armed attack.” This narrowly technical interpretation ignores that international law cannot compel any state to wait until it absorbs a devastating or even lethal first strike before acting to protect itself. Significantly, both the Security Council and the General Assembly refused to condemn Israel for its 1967 preemptive attacks, thereby signifying implicit approval by the United Nations of Israel’s lawful resort to anticipatory self-defense.
The right of self-defense by forestalling an attack is also well established in classical international law. In 1625, Hugo Grotius, in Book II of The Law of War and Peace, indicated 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 said a bit later on in the text: “It be lawful to kill him who is preparing to kill….” Similarly, in his famous text of 1758 known as The Law of Nations, Emmerich de Vattel affirmed: “The safest plan is to prevent evil,” and that to do so a nation may even “anticipate the other’s design….”
Significantly, because we are concerned here with the prospect of Israel’s preemptive strikes, both Grotius and Vattel – the founding fathers of international law – parallel the earlier Jewish interpreters. The Torah contains a provision exonerating from guilt a potential victim of robbery with possible violence, if, in self defense, he struck down and 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).
Israel’s right to preempt under international law, in particular circumstances, is strengthened further by the ongoing nature of belligerency with enemy states. According to Grotius, citing Deuteronomy in The Law of Prize and Booty, the ancient Israelites were fully exempted from the issuance of warnings in dealing with existing enemies. This is because they were engaged in what we would call today “protracted war” ? exactly the formal condition that now obtains between Israel and Iran, and between Israel and all frontline Arab states except Egypt and Jordan.
The Israelites, recounts Grotius, had been commanded by G-d to “refrain from making an armed attack against any people without first inviting that people, by precise notifications, to establish peaceful relations….” Yet, he continues, the Israelites “thought that this prohibition was inapplicable to many of the Canaanite tribes, inasmuch as they themselves had previously been attacked in war by the Canaanites.” The prohibition, in other words, was not needed in case of protracted war.
There is much that needs to be studied here by Israel’s senior military planners and by their legal advisors. It may even already be operationally infeasible to preemptively destroy pertinent Iranian “hard” targets. But under no circumstances should the critical Israeli decision on anticipatory self-defense be inhibited for solely legal reasons.
International law is not a suicide pact. ◙
© Copyright, The Jewish Press, 2004. All rights reserved.
LOUIS RENE BERES was educated at Princeton (Ph.D., 1971) and publishes widely on international law and Israeli defense issues. As Chair of “Project Daniel,” his work is known to the Prime Minister and to Israel’s military and intelligence communities. He is Strategic and Military Affairs columnist for The Jewish Press.