Facing Iran at the margins of time

Israel, preemption, and international law.

By
October 14, 2014 14:58
Hassan Rouhani

Hassan Rouhani. (photo credit: REUTERS)

International law is not a suicide pact. Fashioned, above all, to ensure the survival of imperiled states in an anarchic world, these binding rules include the “inherent” right of self-defense. This core prerogative may be exercised not only after an attack has already been suffered, but also, sometimes, in advance. The sensitive legal issues involved are now potentially urgent, especially in the always- refractory case of Iranian nuclear weapons development.

Could an Israeli preemption – a defensive first strike – still be permissible under international law? Before answering this key question, it is vital to point out that strategy and jurisprudence represent altogether different and usually discrete domains of policy assessment. It is entirely plausible that Israel could have every right under international law to undertake certain forms of preemption, but still conclude that this course of action would no longer be militarily reasonable or cost-effective. At the same time, an awareness of possible permissibility under law could itself become a factor in making any timely strategic decision.

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What exactly does world law say about preemption in general? Although the written rules of the UN Charter reserve the right of self-defense exclusively to states that have already suffered an attack (see Article 51), an equally valid customary law permits a first use of force if the danger posed is “instant, overwhelming, leaving no choice of means and no moment for deliberation.”

Drawn from an 1837 event in history known as The Caroline – which concerned the unsuccessful rebellion in Upper Canada against British rule – this often inconspicuous doctrine builds solidly upon the 17th-century formulations of Hugo Grotius.

Self-defense, said the classic Dutch scholar in The Law of War and Peace (1625), may be permitted “not only after an attack has already been suffered, but also in advance, where the deed may be anticipated.”

In his later text of 1758, The Right of Self-Protection and the Effects of Sovereignty and Independence of Nations, Swiss jurist Emmerich de Vattel similarly affirmed: “A nation has the right to resist the injury another seeks to inflict upon it, and to use force and every other just means of resistance against the aggressor.”

Article 51 of the UN Charter, limiting self-defense to circumstances following an attack, does not override the customary right of anticipatory self-defense.

Interestingly, especially for Americans, the legal works of Grotius and Vattel were favorite readings of Thomas Jefferson, who relied heavily upon them for crafting the Declaration of Independence of the United States of America.

As for customary international law, it is identified as fully authoritative at Article 38 of the Statute of the International Court of Justice.

In rendering its strategic judgments, Israel may also recall Article VI of the US Constitution, and assorted US Supreme Court decisions. Both proclaim unambiguously that international law is part of the law of the United States. Although, strictly speaking, US law can do nothing to directly substantiate or justify any specific military actions by the State of Israel, it could still be used by Jerusalem as a meaningfully subsidiary “back up” for certain vital policy judgments.

Israel also considers international law as part of its own national law, and, correspondingly, as generally binding.

For US law, the critically confirming Supreme Court case is Paquete Habana (1900). For Israel, it is High Court Case Shtampper v. Attorney General, Criminal Appeal (1954), which quoted with approval the eminent British jurist Blackstone’s original statement that “international law is part of the law of the land.” In this much broader connection, Blackstone’s seminal Commentaries were a principal foundation of all subsequent United States law.

There is more on the particular legal issue at hand. The Caroline notes an implicit distinction between preventive war (which is never legal), and preemptive war. The latter is never permitted merely to protect oneself against an emerging threat, but only when the danger posed is observably “instant” and “overwhelming.”

Using such a literal framework, it would appear doubtful that Israel, even now, could construct a current and compelling legal argument for preemption against Iran. Indeed, this would be the case even if the planned Israeli defense operation were limited meticulously and precisely to exclusively nuclear military targets.

Nonetheless, we no longer live in the 17th, or 18th, or 19th, or 20th centuries.

Grotius, Vattel, and those later jurists who were focused on the Caroline could never have anticipated the genuinely existential risks soon to be posed in the 21st century, by a nuclear Iran. The permissibility of anticipatory self-defense, therefore, is understandably much greater today, in the always-advancing nuclear age.

Today, as Prime Minister Benjamin Netanyahu no doubt already understands, merely waiting passively to absorb an Iranian nuclear attack could be irrational and suicidal.

A related and sometimes derivative danger to Israel is posed by certain terrorist group surrogates. If not prevented from receiving nuclear weapons or fissile materials from patron states, such proxies (e.g., Hezbollah, Hamas, al-Qaida, etc.) could inflict grievous harm upon Israeli targets that would be out of range of nuclear-tipped missiles.

In world politics, irrational does not mean “crazy.” Rather, it indicates that national self-preservation is valued less than certain other leadership preferences, both singly and cumulatively. In the case of Iran, these “higher preferences” would doubtlessly be associated with various core Islamic religious beliefs and expectations.

Although it appears that a new Cold War is taking shape between the United States and Russia, there can be no foreseeable nuclear balance of terror in the Middle East.

Sometime after it becomes determinedly ready to launch aggressive military nuclear operations, Iran could conceivably justify using its weapons of mass destruction against “infidels” or “apostates” – and this despite a carefully calculated anticipation of Israeli nuclear retaliations. In such cases, even though Israel had plainly maintained recognizably capable, invulnerable, and penetration-capable strategic forces, nuclear deterrence could be immobilized. Here, Iran could morph into a suicide-bomber writ large; in other words, into a “suicide state.”

Operationally, it may already be far too late for exercising anticipatory self-defense against Iran. Now, after all, any such Israeli preemption would come at a very high, or even intolerable, cost. But, what would be the eventual cost of allowing a militarily nuclear Iran? Jerusalem is fully aware that cyber-defense, targeted killings and all-out cyber-war may delay Iranian nuclear capacity, but knows also that such partial and incremental remedies won’t stop it altogether.

Even at this 11th hour, at the outer margins of strategic time, Israel must be prepared to systematically compare alternative costs, and then choose accordingly.

Ultimately, in this very complex and quite possibly unprecedented calculation, international law will not be determinative.

But, even if only a residual factor of judgment, these critical norms should still be assigned a proper place.

Most significantly, in Jerusalem, if it should still be decided that allowing a nuclear Iran must represent the very worst-case scenario for Israel, having an informed jurisprudential defense of preemption ready at hand could prove to be very smart. ■

Louis René Beres (PhD, Princeton, 1971) is the author of many books and articles dealing with nuclear weapons and world politics. In Israel, he was Chair of Project Daniel (2003). Prof. Beres’s most recent scholarly writings can be found in the Harvard National Security Journal (Harvard Law School); The International Journal of Intelligence and Counterintelligence; The Brown Journal of World Affairs; Parameters: Journal of the U.S. Army War College; The Israel Journal of Foreign Affairs; and Oxford University Press. He was born in Zürich, Switzerland, at the end of World War II.


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