(photo credit:Stringer Iran / Reuters)
Israel now faces the unprecedented prospect of a nuclear Iran. However, in January 2003, the “Project Daniel” group had already reminded then-prime minister Ariel Sharon that a first-use of force against an openly genocidal enemy state can be permissible. After all, international law is never a suicide pact.
No state need ever agree to suffer existential harms before acting in self-defense. There are, in fact, several identifiable circumstances in which a targeted-state may correctly invoke the longstanding legal principle of anticipatory self-defense. Operationally, such an action could also be called preemption, but this readily recognizable designation has more to do with military tactics, than with jurisprudence.
It was on June 7, 1981, that Israel chose to undertake a unilateral defensive first-strike against Iraq’s nuclear infrastructures. Today, Iranian nuclearization has come much farther along than Iraq’s Osiraq nuclear reactor. It follows that, unlike Operation Opera, which was former prime minister Menachem Begin’s code name for the destruction of Osiraq, a preemptive Israeli strike against Iranian hard targets would almost certainly fail.
Yes, of course, the Iranian enrichment facilities could be set back for several months or even years, but the costs, both fiscal and human, would likely be staggering. Moreover, an Israeli “preemption” could still take a number of very different forms, including far-reaching expressions of both targeted killings and cyber-war.
On June 7, 1981, Israeli fighter-bombers destroyed the Osiraq nuclear reactor shortly before it was ready to go "on line." At the time, the general reaction of the global community was hostile. Even the UN Security Council, in Resolution 487 of June 19, 1981, indicated that it "strongly condemns" 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 now 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 have to face a nuclear adversary during Operation Desert Storm or, later, Operation Iraqi Freedom, is due largely to Israel’s successful 1981 resort to anticipatory self-defense.
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 potentially Jihadist regime currently ruling in Tehran, this right to preemption, for Israel, remains clear and incontestable. Add to this the fact that Israel, within the range of Iranian missiles, could be effectively destroyed by one or two nuclear warheads.
Israel did not commit aggression at Osiraq. Nonetheless, 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. 14 Israeli aircraft took part in the raid. The reactor was completely leveled, 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.
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 must be more widely acknowledged. It remains easy for both Israel’s allies and critics to deny Israel its legal and moral right to protect itself by citing “aggression,” but such wrongful denials will ultimately come to impair their own security as well.
It is finally time for the world community to acknowledge the obvious. Israeli preemptive action in 1981 was an indispensable act of international law enforcement. Such an acknowledgment could provide a critical incentive to do what is needed to save human lives.
Although the tactical 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 ultimately threaten the lives of millions of Israelis, Americans, and Europeans. Even a slight delay could cause the already intimidating operational task to become vastly more difficult.
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 nineteenth-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 authoritative 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 previous 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. In terms of law, at least, full responsibility for all such harms would fall upon Tehran, not Jerusalem.
Today, following the 31st anniversary of Operation Opera, we must ask ourselves again whether the crucial lessons of Osiraq now pertain to Iran, and, if so, whether anticipatory self-defense should still be considered. If not, renewed military emphases will need to be placed upon certain improved nuclear targeting options, ballistic missile defense (Arrow; Iron Dome; Magic Wand), and an incremental end to Israel's traditional policy of "deliberate nuclear ambiguity."
Although counterintuitive, ending ambiguity in subtle, nuanced, and non-provocative ways could greatly strengthen Israel's deterrent, but only if the country's strategic planners had first determined that key decision-makers in Tehran are predictably rational.
The writer is the author of many books and articles dealing with international law. He was Chair of Project Daniel, a private nuclear advisory group to former prime minister Ariel Sharon.