Law and war


By Louis Rene Beres


International law is not a suicide pact. When Iran's president calls repeatedly for Israel's annihilation -- "Israel must be wiped off the map" -- he demands nothing less than genocide. In clear violation of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, President Mahmoud Ahmadinejad's call is quite literally illegal. Not surprisingly, in view of Iran's support of Hezbollah and its unwillingness to abide by its codified obligations under the Nuclear Nonproliferation Treaty, it is also a stark affront to the U.N. Charter.


    Iran is now finalizing construction of nuclear weapons. Iran openly views nuclear weapons as acceptable implements to create "a world without Zionism." As for any sort of reconciliation with Israel, Iran's president has declared menacingly, "Anybody who recognizes Israel will burn in the fire of the Islamic nation's fury; any Islamic leader who recognizes the Zionist regime means he is acknowledging the surrender and defeat of the Islamic world."


    Israel's leaders will soon have to make vitally important decisions on launching defensive first strikes. Faced with an unambiguously genocidal regime in Tehran, these Israeli leaders cannot be expected to sit back and wait for Tehran to fire lethal volleys of atomic weapons. Less than half the size of a county in California, Israel's wiggle room in matters of strategic survival is less than limited.


    Although Israel has never threatened Iran with pre-emption, the Islamic republic has somehow managed to extrapolate such a threat from an awareness of its own aggressive intentions. Knowing 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 pre-emptive strike. Despite the complete absence of any threats from Israel, Iran now openly states its intention to strike first. Iran now threatens, somewhat caricaturely, to pre-empt an unplanned pre-emption.


    Soon, Israel could have little choice but to strike first itself. Such a preemption, assuredly non-nuclear, would 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 nuclear warheads, this system would also have some leakage. But when dealing with nuclear weapons, no leakage could ever be tolerable.


     The Jewish state, facing full-blown Arab attacks in June 1967, correctly opted to strike first itself. From the standpoint of international law, this preemption against military targets was a textbook example of "anticipatory self-defense." What about the future?


    "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." During the unsuccessful rebellion against British rule in 1837 in Upper Canada, 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, 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 genocidal Iran armed with nuclear weapons, an appropriately hard-target resort to anticipatory self-defense would be both lawful and law-enforcing.


    Some legal scholars argue that the right of anticipatory self-defense expressed by the Caroline has 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. Both the Security Council and the General Assembly refused to condemn Israel for its 1967 preemptive attacks.


    The right to 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 when "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 that "The safest plan is to prevent evil," and that in order to do so a nation may even "anticipate the other's design."


    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 which exonerates a potential victim of violent robbery if in self defense he struck down -- and even if he killed -- the attacker before the attacker committed any crime (Exodus: 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 under international law to preempt in particular circumstances is strengthened further by the ongoing nature of belligerency with enemy states. According to Grotius, citing the law of prize and booty in Deuteronomy, 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 which now exists between Israel and Iran, and between Israel and all frontline Arab states except Egypt and Jordan.


    The Israelites, recounts Grotius, had been commanded by God 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.


    Modern Israel is engaged in protracted war. Modern Israel must act to defend itself against Iranian nuclear annihilation.


International law is not a suicide pact.


    Louis Rene Beres, who writes on international law and Israeli defense issues, is chairman of Project Daniel.





 July 25, 2006

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