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Posts Tagged ‘Professor Beres’

Global Denuclearization And Israel’s Survival (Fourth of Four Parts)

Thursday, March 22nd, 2012

It would be unreasonable for Israel to draw any comfort from an argument that Iranian intentions are effectively harmless. Rather, such intentions could impact capabilities decisively over time. Backed by appropriate nuclear weapons, preemption options must somehow remain open and viable to Israel, augmented, of course, by appropriate and complementary plans for cyber-defense and cyber-warfare.

An important factor in this discussion of intentions, capabilities and preemption options is the so-called Middle East peace process, now more generally known as the “Road Map.”

Conventional wisdom has been quick to suggest that this cartographic process, by demonstrating and codifying Israel’s commitment to peaceful settlement of disputes, has diminished the enemy (Iranian) threat. After all, wouldn’t world public opinion uniformly condemn Iran for any act of aggression directed against a peacemaking Israel? And wouldn’t, therefore, any Iranian aggressive intentions be reduced or even removed, a change that could slow down Teheran’s pertinent unconventional militarization, and consequently the overall danger to Israel from that enemy state?

The conventional wisdom may be wrong, or merely partial. Following the earlier Oslo Agreement, Israel’s inclination to preempt enemy aggression had likely been diminished from the start. After all, virtually the entire global community would have frowned disapprovingly upon an Israeli preemption in the midst of an ongoing, incremental search for “peace” in the region.

If the Iranians should recognize these effective inhibitions on Israeli preemption options (and there is every reason to believe that they would recognize these inhibitions), this enemy state could calculate as follows: “As our militarization will be less threatened by Israeli preemptive attack during the peace process, we (Iran) should increase our capabilities, especially our unconventional weapons capabilities, as quickly as practicable.” Such a calculation could enlarge Iranian intentions to attack Israel, and could even render cost-effective hostile actions by Iran that would not otherwise have been considered, or even have been thought possible.

If the “peace process” should produce a Palestinian state, a result that now looks increasingly likely following incremental statehood actions by the United Nations, the effects on enemy capabilities and intentions, and therefore on Israeli preemption options, would be significant. Israel’s substantial loss of strategic depth could be recognized by enemy states as a distinct military liability for Jerusalem. Such recognition, in turn, could then heat up enemy intentions against Israel, occasioning an accelerated search for capabilities, and consequently a heightened risk of war.

Israel could foresee such enemy calculations, and seek to compensate for the loss of territories in a number of different ways. It could decide that it was time to take its bomb out of the “basement” (nuclear disclosure) as a deterrence-enhancing measure, but this might not be enough of a productive strategy. It could, therefore, accept a heightened willingness to launch preemptive strikes against enemy hard targets, strikes backed up by Israeli nuclear weapons. Made aware of any such Israeli intentions –intentions that would derive from Israel’s new territorial vulnerabilities – enemy states could respond in a more or less parallel fashion, preparing more openly and more quickly for their own nuclearization, and/or for first-strike conventional attacks against the Jewish State.

Taken by itself, a Palestinian state could affect the capabilities and intentions of both Israel and its enemies. But if such a state were created at the same time Israel reduced or abandoned its nuclear weapons capabilities, the impact could be more substantial. This scenario should not be dismissed out of hand.

What would happen if Israel were to actually relinquish its nuclear options? Under such hard to imagine circumstances, Israel would not only be more vulnerable to enemy first strikes, it would also be deprived of its essential preemption options. This is the case because any Israeli counter-retaliatory deterrence could be immobilized by reduction or removal of its nuclear weapons potential, and because Israeli preemptions could not possibly be 100% effective against enemy unconventional forces. A less than 100% level of effectiveness could be tolerable if Israel had a “leak proof” ATBM (anti-tactical ballistic missile) capability in the Arrow and Iron Dome systems, but such a capability is inherently unachievable.

Nuclear War Fighting Options

We have seen that Israel could conceivably need nuclear weapons for, among several other essential purposes, nuclear war fighting. Should nuclear deterrence options and/or preemption options fail altogether, Israel’s “hard target” capabilities could be critical to national survival. These capabilities would depend, in part, upon nuclear weapons.

What, exactly, would be appropriate in such dire circumstances – conditions that Israel must strive to prevent at all costs? Instead of “Armageddon”-type weapons (see the Samson Option below), Israel would need, inter alia, precision, low-yield nuclear warheads that could reduce collateral damage to acceptable levels, and hypervelocity nuclear warheads that could readily overcome enemy active defenses. Israel would also benefit from certain radio-frequency weapons. These are nuclear warheads that are tailored to produce as much electromagnetic pulse as possible, destroying electronics and communications over wide areas.

Global Denuclearization And Israel’s Survival (Third of Four Parts)

Wednesday, March 14th, 2012

For forty years I have studied the stunningly complex problem of enemy rationality, especially in certain earlier published writings concerning the particular nuclear threat from Iran. Almost by definition, strategic assessments of nuclear deterrence always assume a rational state enemy; that is, an enemy that values its own continued survival more highly than any other preference, or combination of preferences. But this assumption may sometimes be problematic.

There is no reason to assume that all prospective attackers of the Jewish state will always rank physical survival above all other possible options or even that such attackers would hew perfectly to careful, systematic, and transitive comparisons of all expected costs and benefits. As long as such enemies are capable of missile attacks on Israel, and as long as Israel is unable to intercept these attacks with near-perfect, or possibly even perfect reliability (no system of ballistic missile defense, including Israel’s Arrow and Iron Dome, can ever be leak-proof), any Israeli dependence upon nuclear deterrence could have genuinely existential consequence.

Where should Israel go from here? Recognizing the substantial limitations of the so-called Middle East peace process, Israel must seek security beyond the protections offered by nuclear deterrence. It must, as recommended by Project Daniel (2003), also prepare for possible preemptions against pertinent military targets. Although many will find even such preparations to be “aggressive” or “uncivilized,” and although it may already be very late operationally in certain relevant attack scenarios, the alternatives may amount to national suicide. Significantly, the right of preemption is well established under customary international law as “anticipatory self-defense.”

Preemption Options

Among other purposes, Israel needs nuclear weapons to undertake and/or support various forms of conventional preemption. In making its preemption decisions, Israel must determine whether such essential defensive strikes, known jurisprudentially as expressions of anticipatory self-defense, would be cost-effective. This would depend upon a number of critical variables, including: (a) expected probability of enemy first-strikes; (b) expected cost of enemy first-strikes; (c) expected schedule of enemy unconventional weapons deployment; (d) expected efficiency of enemy active defenses over time; (e) expected efficiency of Israeli active defenses over time; (f) expected efficiency of Israeli hard-target counterforce operations over time; (g) expected reactions of unaffected regional enemies; and (h) expected U.S. and world community reactions to Israeli preemptions.

Regarding preemption options, Israel’s overriding question is this: As Jerusalem must plan for such forms of anticipatory self-defense, against which particular configurations of hard targets should they be directed, and when should they be mounted? If it is assumed that enemy states will only add to their chemical/biological/nuclear arsenals, and that these additions will make any effective Israeli preemptions more and more difficult, if not altogether impossible, rational Israeli strategy would seem to compel Jerusalem to strike defensively as soon as possible. If, however, it is assumed there will be no significant enlargement/deployment of enemy unconventional weapons over time, this may suggest a diminished strategic rationale for Israel to strike first.

Israel’s inclinations to strike preemptively in certain circumstances could also be affected by the steps taken by prospective target states to guard against any Israeli preemption. Should Israel refrain too long from striking first, enemy states could implement protective measures that would pose additional hazards to Israel. These measures could include the attachment of certain launch mechanisms to nuclear weapon systems, and/or the adoption of “launch-on-warning” policies. Such policies would call for the retaliatory launch of bombers and/or missiles on mere receipt of warning that a missile attack is underway. Requiring launch before the attacking warheads actually reached their intended targets; launch-on-warning could clearly carry very grave risks of error.

Ideally, Israel would do everything possible to prevent such enemy measures from being installed in the first place, especially because of the expanded risks of accidental or unauthorized attacks against its armaments and population centers. Yet if such measures should become fact, Jerusalem might still reasonably calculate that a preemptive strike would be cost-effective. This is because an expected enemy retaliation, however damaging, might still appear less unacceptable than the expected consequences of enemy first strikes.

Perhaps the single most important factor in Israeli judgments on the preemption option will be the expected rationality of enemy decision-makers. If, after all, these leaders could be expected to strike at Israel with unconventional forces irrespective of anticipated Israeli counterstrikes, deterrence, as we have already seen, might not work. This means certain enemy strikes could be expected even if enemy leaders understood that Israel had successfully deployed its own nuclear weapons in survivable modes, that Israel’s weapons were entirely capable of penetrating enemy active defenses, and that Israel’s leaders were fully willing to retaliate.

Faced with an irrational enemy bent upon unconventional aggression, Israel could have no effective choice but to abandon reliance on traditional modes of nuclear deterrence. Even if it is not faced with an irrational enemy, however, Israel will have to plan carefully for certain preemption options, planning that must take into account Jerusalem’s own nuclear weapons. In the course of such planning, it will be important to recognize that enemy capabilities and intentions are not separate and discrete, but interpenetrating, interdependent, and interactive. This means: (1) capabilities affect intentions, and vice-versa; and (2) the combined effects of capabilities and intentions may produce certain policy outcomes that are greatly accelerated, and/or are more than the simple sum of these individual effects.

Global Denuclearization And Israel’s Survival (Second of Four Parts)

Wednesday, March 7th, 2012

6. As only a distinctly last resort, Israel needs nuclear weapons for nuclear war fighting. Although in the best of all possible worlds this residual need will never have to arise, and although Israel should always do everything possible to avoid any such use (Project Daniel made this avoidance a major point in its final report, “Israel’s Strategic Future,” presented to former then-Prime Minister Sharon in 2003), it still cannot be ruled out altogether. Rather, Israeli planners and decision-makers who could possibly find themselves in a dire situation of “no alternative” must take it seriously.

Among the possible and more or less probable paths to nuclear war fighting are the following: enemy nuclear first-strikes against Israel; enemy non-nuclear first-strikes against Israel that elicit Israeli nuclear reprisals, either immediately or via incremental escalation processes; Israeli nuclear preemptions against enemy states with nuclear assets; Israeli non-nuclear preemptions against enemy states with nuclear assets that elicit enemy nuclear reprisals, either immediately or via incremental escalation processes.

Other pertinent paths to nuclear war fighting might include accidental/unintentional/inadvertent nuclear attacks among Israel and regional enemy states, and even the escalatory consequences of nuclear terrorism against the Jewish State.

As long as it can be assumed that Israel is determined to endure, there are conditions where Jerusalem could resort to nuclear war fighting. This holds true if: (a) enemy first-strikes against Israel would not destroy Israel’s second-strike nuclear capability; (b) enemy retaliations for Israeli conventional preemption would not destroy Israel’s nuclear counter-retaliatory capability; (c) Israeli preemptive strikes involving nuclear weapons would not destroy enemy second-strike nuclear capabilities; and (d) Israeli retaliation for enemy conventional first-strikes would not destroy enemy nuclear counter-retaliatory capabilities.

It follows, from the standpoint of Israel’s nuclear requirements, that Jerusalem should prepare to do what is needed to ensure the likelihood of (a) and (b) above, and the unlikelihood of (c) and (d).

7. Israel needs nuclear weapons for the also residual “Samson Option.” Although any such use of nuclear weapons, by definition, would be profoundly catastrophic, Israel is apt to reason that it would be better to “die with the Philistines” than to die alone. This sort of understanding is much more than a matter of Jewish honor, and also much more than a refutation of the so-called Masada complex (suicide without punishment of the aggressor). It could (depending upon awareness by enemy states) represent an integral and indispensable element of Israel’s nuclear deterrent.

Moreover, the biblical analogy is somewhat misleading. Samson chose suicide by pushing apart the temple pillars, whereas Israel, using nuclear weapons as a last resort, would not be choosing – or even necessarily committing – “suicide.” For states, the criteria of “life” and “death” are hardly as clear-cut as they are for individual persons.

Finally, it is essential that Israel’s leaders, in considering possible uses of nuclear weapons, regard the Samson Option as one to be precluded by correct resort to all other nuclear options. Stated differently, a resort to the Samson Option by Israel would imply the complete failure of all other options, and of the failure of its nuclear weapons to provide essential national security.

Deterrence Options

We have seen that Israel needs nuclear weapons, among other purposes, to deter large conventional attacks, and all levels of unconventional attack by enemy states. Yet the effectiveness of nuclear weapons in meeting these needs is limited and exceedingly problematic. Even if the country should move toward partial or full disclosure of its nuclear weapons, Israel cannot reasonably rely entirely upon nuclear deterrence for survival. This should be apparent to anyone who has watched the continuing unfolding and expansion of Iran’s expressly genocidal intentions.

Aware of these limitations, Israel must nonetheless seek to strengthen nuclear deterrence such that an enemy state will always calculate that a first-strike upon the Jewish State would be irrational. This means taking steps to convince the enemy state that the costs of such a strike will always exceed the benefits. To accomplish this important objective, Israel must convince prospective attackers that it maintains both the willingness and the capacity to retaliate with nuclear weapons.

Where a rational enemy state considering an attack on Israel would be unconvinced about either one or both of these essential components of nuclear deterrence, it might still choose to strike first, depending, of course, upon the particular value or utility it places upon the expected outcomes of such an attack.

Regarding willingness, even if Jerusalem were prepared to respond to certain attacks with nuclear reprisals, any enemy failure to recognize such preparedness could still provoke an attack upon Israel. Here, misperception and/or errors in information could immobilize Israeli nuclear deterrence. It is also conceivable that Jerusalem would, in fact, lack willingness to retaliate, and that enemy decision-makers perceived this lack correctly. In this perilous case, Israeli nuclear deterrence would be immobilized not because of any “confused signals” but rather because of certain specific Israeli intelligence and/or policy failures.

Israel And A Palestinian State: A Look Behind The News (Second of Two Parts)

Wednesday, February 22nd, 2012

In the strict Islamic view, not merely in the more narrowly Jihadi or Islamist perspectives, Israel must be seen as the individual Jew in macrocosm. The Jewish state must be despised on account of this relationship – that is, because of the allegedly “innate evil” of each individual Jew.

This insidious understanding is a far cry from the widely fashionable idea that Israel is despised in the region only because it is an “occupier.” Generally, the Israeli is despised in the Islamic world because he or she is a Jew, a condition of presumed infirmity, and one that can never be “remedied.”

A current Egyptian textbook of Arab Islamic history, used widely in teacher training colleges, expresses these sentiments:

“The Jews are always the same, every time and everywhere. They will not live save in darkness. They contrive their evils clandestinely. They fight only when they are hidden; because they are cowards…. The Prophet enlightened us about the right way to treat them, and succeeded finally in crushing the plots they had planned. We today must follow this way, and purify Palestine from their filth.”

In an earlier article in Al-Ahram, by Dr. Lufti Abd al-Azim, the famous commentator urges, with complete seriousness:

“The first thing that we have to make clear is that no distinction must be made between the Jew and the Israeli…. The Jew is a Jew, through the millennia…. in spurning all moral values, devouring the living, and drinking his blood for the sake of a few coins. The Jew, the Merchant of Venice, does not differ from the killer of Deir Yasin or the killer of the camps. They are equal examples of human degradation. Let us therefore put aside such distinctions, and talk only about Jews.”

Writing also on the “Zionist Problem,” Dr. Yaha al-Rakhawi remarked openly in Al-Ahram:

“We are all once again face to face with the Jewish Problem, not just the Zionist Problem; and we must reassess all those studies which make a distinction between “The Jew” and “The Israeli.” And we must redefine the meaning of the word “Jew” so that we do not imagine that we are speaking of a divinely revealed religion, or a minority persecuted by mankind…. we cannot help but see before us the figure of the great man Hitler, may God have mercy on him, who was the wisest of those who confronted this problem…. and who out of compassion for humanity tried to exterminate every Jew, but despaired of curing this cancerous growth on the body of mankind.”

Finally, we may consider what Israel’s first Oslo “peace partner,” Yasir Arafat, had to say on January 30, 1996, while addressing forty Arab diplomats at the Grand Hotel in Stockholm. Speaking with the title “The Impending Total Collapse of Israel,” Arafat remarked, without hesitation:

“We Palestinians will take over everything; including all of Jerusalem…. All the rich Jews who will get compensation will travel to America…. We of the PLO will now concentrate all our efforts on splitting Israel psychologically into two camps. Within five years, we will have six to seven million Arabs living in the West Bank, and in Jerusalem…. You understand that we plan to eliminate the State of Israel, and establish a purely Palestinian state…. I have no use for Jews; they are and remain, Jews.”

Despite these plainly intolerant and potentially genocidal Arab views of Israel’s physical existence, international law still need not expect Palestinian compliance with any pre-state agreements concerning armed force. This is true even if these agreements were to include certain explicit U.S. security guarantees to Israel. Also, because authentic treaties can be binding only upon states, a non-treaty agreement between the Palestinians and Israel could quickly prove to be of little or no real authority, or effectiveness. This is to say nothing of the still critical connections between Fatah, Hamas, al Qaeda, Hizbullah, the Islamic Resistance Movement and the (Egyptian) Muslim Brotherhood.

What if the government of a new Palestinian state were somehow willing to consider itself bound by the pre-state, non-treaty agreement? Even in these very improbable circumstances, the new Arab government could still have ample pretext, and opportunity, to identify fully usable grounds for lawful treaty termination.

Palestine could withdraw from the “treaty” because of what it would regard as a “material breach,” a purported violation by Israel that had allegedly undermined the “object or purpose” of the agreement. It could also point toward what international law calls Rebus sic stantibus. In English, this doctrine is known formally as a “fundamental change of circumstances.” Here, if Palestine should decide to declare itself vulnerable to previously unforeseen dangers, perhaps even from the interventionary or prospectively occupying forces of other Arab armies, it could lawfully end its previous commitment to remain demilitarized.

There is another factor that explains why Prime Minister Netanyahu’s hope for Palestinian demilitarization remains misconceived. After declaring independence, a new Palestinian government, one likely displaying openly genocidal sentiments, could point to particular pre-independence errors of fact, or duress, as appropriate grounds for agreement termination. Significantly, the usual grounds that may be invoked under domestic law to invalidate contracts can apply equally under international law, both to actual treaties, and to treaty-like agreements.

Thinking The Worst: Israel’s Best Path To Survival

Wednesday, February 8th, 2012

Jorge Luis Borges, the very special Argentine writer and philosopher, sometimes identified himself as a Jew. Although lacking any apparent basis in halacha, he clearly felt himself to be a kindred spirit: “Many a time I think of myself as a Jew,” he is quoted in Willis Barnstone’s, Borges at Eighty: Conversations (1982), “but I wonder whether I have the right to think so. It may be wishful thinking.”

The ironies here are positively delightful. After all, any such explicitly philo-Semitic sentiment is extremely rare, especially when it is uttered, in sincerity, by one of the modern world’s most accomplished authors. It ought to follow, therefore, that Jews in general and Israelis in particular should pay very close attention to certain still-hidden implications of Borges’s ecumenical wisdom.

In one of Borges’s best stories, a condemned man, having noticed that human expectations rarely coincide with reality, purposefully imagines the circumstances of his own death. Because they have become expectations, he reasons, they can never actually happen.

Now, also recognizing that fear and reality may go together naturally, the people of Israel should consciously begin to imagine themselves living within the contingent space of both individual and collective mortality. Then Israel could suitably undertake the effective political and military policies that are needed to secure its survival.

Some, of course, may conclude that God’s eternal promise of permanence would allow Israel to sit back complacently and to confidently assume a palpably “higher” sphere of protection. Yet such an effortless conclusion, with its plain disregard for prudent strategic preparations, would misunderstand the Torah.

On another, more secular, level, any advice to encourage Israel’s existential apprehensions might appear contradictory and self-destructive. After all, isn’t human death fear debilitating? Anxiety, we are routinely taught, is an expression of weakness. What possible advantages could there be to deliberately nurturing any thoughts of national fear and collective trembling?

The answer: Truth may sometimes emerge through paradox. Imaginations of a collective immortality, notions that are generally encouraged by false hopes and inflated egos, will predictably discourage Israeli steps to self-preservation. Even in those enviable circles of enlightenment, oases of reason where there no longer is any delusional faith in a so-called peace process, most Israelis will instinctually resist intimations of national annihilation. Nonetheless, although counter-intuitive, the result of any such wrongheaded resistance would be a still-greater level of Jewish national transience.

In the fashion of many of its enemies, Israel insistently imagines for itself, either scripturally or strategically (or both), life everlasting. Unlike these assorted enemies, Israel does not see itself achieving immortality, individually or collectively, via the ritual murder of its enemies, through war and terrorism. Rather, it identifies its collective survival as the permanent product of divine protection, reasoned diplomatic settlements, and/or smart military planning.

Singly or collectively, and in any conceivable configuration, there is nothing inherently wrong with these expectations. Still, they should never be allowed to displace a pragmatic and prior awareness of an always-possible national impermanence.

Any asymmetry of purpose and expectation between Israel and its implacable foes will place the Jewish state at a notable disadvantage. While Israel’s enemies, most evidently Iran, manifest their “positive” hopes for immortality by the doctrinally-intended slaughter of Jews, Israel’s leaders display their country’s own expectations for collective immortality by agreeing to incremental surrenders of “territories.” To be sure, in the impending matter of Palestinian statehood, Prime Minister Netanyahu had expressly added the requirement of Palestinian “demilitarization,” but this remains an utterly implausible and thereby dangerous expectation.

In the end, the protracted clash in the Middle East between Arab/Islamic believers in sacrifice and Israeli believers in reason will likely favor the exponents of war and terror. Unless this prevailing asymmetry is replaced by new, far-reaching and deliberate Israeli imaginations of existential disaster, Jewish believers in “mutual understanding” may have to depart once again from the Promised Land. Exeunt omnes.

It is difficult to ask Israelis to resist American-style “positive thinking” and to imagine the worst. Yet as Swiss playwright Friedrich Durrenmatt says, “The worst does sometimes happen.” It would now be far better for Israel to err on the side of excessive pessimism. Then, spurred on by the most conspicuously dreadful imaginations of disaster, the people of Israel could finally begin to contemplate and consequently ward off the insufferable interstices between Palestinian statehood, Iranian nuclearization, and regional war.

 

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.

After Bin Laden: Assassination, Terrorism, War and International Law (Second of Two Parts)

Thursday, February 2nd, 2012

The following is based on a lecture presented by Dr. Beres at Case Western Reserve University School of Law on September 9, 2011.

“Everything in this world exudes crime,” says Baudelaire, “the newspapers, the walls, and the face of man.” But this “face” does not belong solely to what classic seventeenth-century international law scholar Hugo Grotius called “men of deplorable wickedness.” However counterintuitive, the core problem of international law enforcement is not hostes humani generic – “common enemies of mankind” – but rather the “normal” human being.

We know today, in part because of the early and controversial work of Hannah Arendt (Eichmann in Jerusalem), that it was generally this “normal” human being, not the expressly wicked monster of traditional world politics, who made possible the Holocaust; the Armenian genocide; the mass murders of the Khmer Rouge; the killings of the Hutu in Burundi; of the Tutsis by the Hutu in Rwanda; of the Ache Indians in Paraguay; the Buddhists in Tibet, the Muslims/Croats and Serbs in Bosnia, and on and on and on.

Yes, “bad people” do exist, and they do play a pivotal role in most international crimes. But before international law can truly work, it must first learn to look beyond “inhuman cruelties” to what Nietzsche called the “human, all-too-human.”

Here, the true problem is a delirious collectivism of thought that somehow identifies “success” with the perpetual slaughter of “others.” In the final analysis, the seriousness with which we approach international law “in crisis” will depend upon the extent to which we can change the “human, all- too-human.”

There is a related issue – the always-standard presumption of reason in legal analyses. Oddly enough, this ubiquitous presumption is fundamentally flawed. Any look at history reveals that the Greeks, and Cicero, and Grotius, and Vattel, and the American founding fathers, are trumped here by Nietzsche, Kierkegaard, Dostoyevsky and Freud.

In other words, from now on any progress we can expect in improving international law at the individual human level must begin by accepting the primacy of unreason in world affairs. Such an acceptance will muddy all of the usual analytic waters, because it will, by definition, make a reassuringly precise and broadly theoretical jurisprudence impossible. Still, we do need to fashion our international law reforms, the ones needed to counter current crises, upon accurate and truthful understandings of basic human behavior.

We can do nothing else. And the truth is that we are not generally a species that operates according to reason.

What can we do right away?

For now, for today, my proposed remedies for alleviating “crisis” must remain more narrowly jurisprudential and orthodox. For the immediate future, for example, we should refine our thinking about assassination (targeted killing) as (1) permissible counter-terrorism; (2) humanitarian intervention; and (3) even as anticipatory self-defense. Such notions of permissible violence as remediation must continue to be regarded as distasteful and bitterly ironic, but this is still not yet “the best of all possible worlds.”

In my written paper, I expand on certain ways in which permissible violence might be better regulated under international law, with reference to both jus ad bellum (justice of war) and jus in bello (justice in war) criteria. But, here, too, there will always be a problem of Realpolitik, or rather the always-overriding expectations of presumed national interest and power politics. Many of these pertinent issues of assassination, humanitarian intervention, preemption and anticipatory self-defense can be applied directly to our assigned areas of concern, Northern Africa and the Middle East.

To what extent shall we now act, unilaterally and/or multilaterally, on behalf of aggrieved human rights in Libya and Syria? To what extent should we now act with force, unilaterally and/or multilaterally, on behalf of non-proliferation goals in a still-nuclearizing Iran? Shall Israel and/or the US have the right to preemptively destroy Iranian nuclear infrastructures? If so, with what operational limits?) To what extent might we act correctly, unilaterally and/or multilaterally, to oppose terrorism with armed force in such places as Lebanon; Gaza; Yemen and Somalia? Gaza, of course, is part of an aspiring state, not an existing state. In exercising any such presumed rights to anticipatory self-defense, would international law be served better by selective assassinations than by more usual (and larger) forms of military action?

In assessing such choices, should we use solely utilitarian calculations, or are we obliged to also consider some underlying and unchanging and universal principles of justice? What are these principles? Is the right of international legal authority to use military force as remediation (for counter-terrorism, anticipatory self-defense or support of human rights) in any way contingent on the degree or urgency of expected harms? And on the time-urgency involved?

In other words, does this right expand when the “danger posed” involves threats of mega-destruction and/or is imminent? Do these considerations also allow international law greater latitude in the level or amount of armed force applied – that is, permit a “bending” of the usual engagement rules for discrimination; proportionality; and military necessity? And what if the delinquent state or insurgent group has resorted to “perfidy,” specific violations of the Law of War involving wrongful deceptions?

Post-Bin Laden: Terror, War and Int’l Law (Part 1)

Thursday, January 26th, 2012

The following is based on a lecture presented by Dr. Beres at Case Western Reserve University School of Law on September 9, 2011.

 

Everyone who has taught international law, or written about it, knows that the idea of crisis in actually inherent in the subject. More than anything else, this crisis, this continuing or protracted dilemma, is one of efficacy, of effectiveness. In the final analysis, whether we study Northern Africa and the Middle East, or anywhere else for that matter, the core problem is always less a question of To Where? than of Who Cares?

Why should anyone care about international law?

Clearly, whether we assume that our adversaries are rational or irrational, it seems unlikely the particular sanctions and rewards associated with legal compliance are apt to figure very importantly in the decision-maker’s calculations. It is also true that actually knowing what is or is not lawful in particular circumstances is not always plain and straightforward. It can, in other words, be a very confusing field of study and practice.

We all know we live with a largely subjective kind of jurisprudence, and that the antecedent questions of “legal” or “illegal” will often depend on many imprecise and interpenetrating factors. It follows from all this that, in the end, we will need to identify and conceptualize a whole new understanding of international law as a disciplined field of inquiry, one rooted in far greater clarity and in a far greater expectation of both punishment and reward: Nullum crimen sine poena – “no crime without a punishment,” the critical legacy of Nuremberg.

Lately, there have been certain tangible signs of “improvement,” most obviously in the areas of international criminal prosecution, in the form of a now permanently constituted International Criminal Court, and also in the appearance of both assorted ad hoc criminal tribunals, and various domestic court venues.

For the moment, it also seems this enlarged resort to prosecution for egregious international crimes suggests (in this area of law, at least) that international law is making real and obvious progress. It is also obvious we humans are a species that has somehow managed to scandalize its own creation, continuing to engage in war, terrorism and genocide with considerable enthusiasm and with little respite or effective opposition.

Sometimes, it is almost as if there were no international laws at all.

What shall we do?

We who study and teach international law need, at least in part, to go back to “the beginning,” to reconsider the basic raw materials of international relations and world politics, and to examine ways in which problems of seriousness and efficacy can be addressed at the critical individual human level. In short, to alleviate the crises of international law and in international law, we will first have to inquire about what I call behavioral transformations. For now, we are likely to regard any such transformations as far beyond the pale of reasonableness, and to focus instead on the persistent anarchy or “Westphalian” character of world politics.

This focus is largely understandable (for we are not very tolerant in these times of what would appear to be flagrant idealism or utopianism), but, ultimately, our “realism” will leave existentially perilous conditions unchanged.

Back at Princeton in the late 1960s, I was part of the World Order Models Project (WOMP). At the time, I was intrigued with this unprecedented vision of “blueprinting” new systems of international law, yet, looking back, I can see now that even it had remained too static, too structural; essentially, WOMP was conceived and executed as world federalism in “new bottles.”

Now, finally, it is high time for a new jurisprudence, one that would accept Immanuel Kant’s observation: “Out of timber so crooked as that from which man is made, nothing entirely straight can be built.” This “new jurisprudence” would acknowledge the persistently thin veneer of human “civilization” (remember Lord of the Flies?), and begin the search for practicable ways of transforming people. Despite the overwhelming odds against any near-term (or any term) successes, this new way of approaching international law would build upon the understanding that we can never escape from the “crisis of international law,” or even use international law to escape from our current global crises, by improving  rules, or by centralizing structures of power and authority.

It is quite reasonable to assert, as indeed I am doing right now, that either we learn how to change the raw material of international interactions at the source – i.e., the level of the individual human being – or we shall continue to face relentless crises within a system of international law that is increasingly inoperable.

My formal paper for this important conference was prepared at an eminently more “practical” level. It deals, quite predictably, with time-urgent questions of assassination (targeted killing); humanitarian intervention (the so-called “duty to protect”); permissible and impermissible forms of counter-terrorism; alternative venues for international criminal prosecutions; and “anticipatory self-defense.” In this more formal paper, too, I offer, predictably, a broad assortment of more-or-less authoritative standards, criteria and thresholds.

Printed from: http://www.jewishpress.com/indepth/columns/louis-bene-beres/after-bin-laden-assassination-terrorism-war-and-international-law-first-of-two-parts/2012/01/26/

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