Facing an Explosive Future (INN-ISRAEL NATIONAL NEWS OP-ED) by Louis Rene Beres 01/30/05)
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Israel now faces grave dangers from Iran, a hostile Islamic state
deeply involved in production of nuclear and certain other weapons of
mass destruction. In essence, the Jewish State will soon have only
two options vis-a-vis Iran:
(1) Sit tight, do nothing militarily, and hope that deterrence,
political agreements and/or economic sanctions will prevent Iranian
(2) strike preemptively against pertinent military targets, thereby
expressing what international law calls "anticipatory self-defense."
Should it choose the former, Israel would avoid offending
the "international community," Yet, this choice would carry a
substantial risk of inviting unconventional war and unconventional
terrorism. Should it choose the second option, Israel would give
offense to the international community and very likely undermine its
special relationship with Washington, but it would also likely reduce
the risk of overwhelming destruction from Iran. The second option
would generate unpopularity for Israel, and would probably be less
than entirely effective, but it would assuredly be more gainful than
being popularly dead.
Does Israel have the right to strike first under international law?
In the best of all possible worlds, reasonable concerns about an over-
broad right of anticipatory self-defense would be well taken. For
example, a specially-constituted world body - a UN-type institution
displaying both real authority and real capability - could ensure
that powerful aggressor states do not act at will. But we do not yet
live in such a world. Instead, states continue to coexist within the
decentralized dynamics of Westphalian law that have obtained since
the middle of the seventeenth century. In this world, one still very
much like the world satirized by Voltaireīs Candide, states that
would renounce altogether the right of anticipatory self-defense
could be blatantly suicidal. For a state such as Israel, a state less
than half the size of San Bernardino County in California and smaller
than Lake Michigan, a state that is surrounded by twenty-two hostile
Arab states (soon to be twenty-three, after the creation
of "Palestine"), such renunciation could be tantamount to an
acceptance of its own genocide.
It is true that the right of anticipatory self-defense can be abused
and that maintaining this right under international law always
carries certain serious risks. Yet, an across the board renunciation
of anticipatory self-defense would carry even greater risks. Indeed,
where it is supported by distinguished scholars, the informed
argument for anticipatory self-defense has assuredly grown stronger
in the nuclear age. Waiting patiently to absorb an enemy attack
before striking could now represent the reductio ad absurdum
of "legalism" in international law. This is the fallacy or error in
reasoning that treats law as an automatically effective set of rules.
The right of self-defense by forestalling an attack appears in Hugo
Grotiusī The Law of War and Peace (1625). Recognizing the need for
protection against "present danger" and threatening behavior that is
imminent in point of time, Grotius indicates that self-defense is
permitted not only after an attack has already been suffered, but
also in advance, where "the deed may be anticipated." Or, as he says
a bit further on in the same chapter, "It be lawful to kill him who
is preparing to kill...."
Emmerich de Vattel takes a similar position in his The Law of Nations
(1758). Here, he argues that it is lawful to resist and even to
anticipate attacks by other nations, so long as aggression is truly
forthcoming. "The safest plan," says Vattel, "is to prevent evil,
where that is possible. 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."
Today, some scholars argue that the specific language of Article 51
of the UN Charter overrides the customary right of anticipatory self-
defense. In this view, which effectively undermines the authoritative
non-treaty sources of international law identified at Article 38 of
the Statute of the International Court of Justice, Article 51
fashions a new and far more restrictive statement of self-defense.
This narrow interpretation ignores that international law must refuse
to compel a state to wait until it absorbs a devastating or even
lethal first strike before acting to protect itself. Regarding
Israelīs preemptive attack in June 1967, neither the Security Council
nor the General Assembly censured this attack, thereby signifying
implicit approval by the United Nations of this particular resort to
During the Persian Gulf War in 1991, in a flagrantly lawless action,
Iraq launched thirty-nine SCUD missile attacks directly against
Israeli civilian populations. On October 7, 1991, more than seven
months after the conclusion of hostilities, UN inspectors discovered
a complex of buildings that had served as Saddam Husseinīs covert
nuclear weapons program. It was here, at an installation called Al-
Atheer, about 40 miles south of Baghdad, that Iraq planned to "design
and produce a nuclear device." What would have been Israelīs fate,
after absorbing 39 Iraqi missile attacks during the Gulf War, if
Prime Minister Begin had not previously asserted the right of
anticipatory self-defense under international law in Israelīs 1981
destruction of Baghdadīs Osiraq reactor? One neednīt have a good
imagination to answer this particular question! Would Israelīs
critics have preferred Israel to absorb multiple nuclear attacks as
the price of conforming to his restrictive view of permissible self-
defense? Would this have been a reasonable preference under
international law? I think not.
For the Arab world, Israel was the aggressor in 1948 and, again, in
1967. Significantly, when Israel avoided preemptive measures in 1973,
an avoidance Israelīs critics would doubtless describe as lawful, the
resultant Arab surprise attack on Yom Kippur almost ended in a total
Regarding the War of 1948, the United Nations placed responsibility
for aggression on the Arab states. The UN Palestine Commission was
never permitted by the Arabs or the British to go to Palestine to
implement the resolution of the General Assembly. On February 16,
1948, the Commission reported to the Security Council: "Powerful Arab
interests, both inside and outside Palestine, are defying the
resolution of the General Assembly and are engaged in a deliberate
effort to alter by force the settlement envisaged therein."
The Arabs themselves were altogether open in accepting responsibility
for starting their first war on Israel. Jamal Husseini told the
Security Council on April 16, 1948: "The representatives of the
Jewish Agency told us yesterday that they were not the attackers,
that the Arabs had begun the fighting. We did not deny this. We told
the whole world that we were going to fight."
As for the British commander of Jordanīs Arab Legion, John Bagot
Glubb, he commented as follows: "Early in January, the first
detachments of the Arab Liberation Army began to infiltrate into
Palestine from Syria. Some came through Jordan and even through
Amman.... They were in reality to strike the first blow in the ruin
of the Arabs of Palestine."
Israel came into being on May 14, 1948. The five Arab armies of
Egypt, Syria, Transjordan, Lebanon and Iraq immediately invaded the
new mini-state. Their combined intention was expressed publicly by
Azzam Pasha, Secretary General of the Arab League: "This will be a
war of extermination and a momentous massacre, which will be spoken
of like the Mongolian massacres and the Crusades." This is the war
Arab states still seek to defend under international law.
Let us consider the 1967 (Six-Day) War. On May 15, Israelīs
Independence Day, Egyptian troops began moving into the Sinai,
massing near the Israeli border. By May 18, Syrian troops, too, were
preparing for battle along the Golan Heights, where - from 3,000 feet
above the Galilee - they had shelled Israelīs farms and villages with
impunity for years. Egyptīs Nasser ordered the UN Emergency Force,
stationed in the Sinai since 1956, to withdraw. After the withdrawal
of the UNEF, the Voice of the Arabs proclaimed, on May 18, 1967: "As
of today, there no longer exists an international emergency force to
protect Israel. We shall exercise patience no more. We shall not
complain any more to the UN about Israel. The sole method we shall
apply against Israel is total war, which will result in the
extermination of Zionist existence."
Two days later, an enthusiastic echo came from Hafez Assad, then
Syriaīs Defense Minister: "Our forces are now entirely ready... to
initiate the act of liberation itself, and to explode the Zionist
presence in the Arab homeland. ...[T]he time has come to enter into a
battle of annihilation."
President Abd A-Rahman Aref of Iraq, a country now more closely
identified with the aggressions of recently-deposed Saddam Hussein,
joined the chorus of genocidal threats: "The existence of Israel is
an error which must be rectified. This is our opportunity to wipe out
the ignominy which has been with us since 1948. Our goal is clear -
to wipe Israel off the map." On June 4, Iraq formally joined the
military alliance with Egypt, Jordan and Syria.
On June 7, 1981, Israeli fighter-bombers destroyed Iraqīs Osiraq
nuclear reactor shortly before it was to go "on line." At the time,
the general international communityīs reaction was overwhelmingly
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
No less than Israelīs own citizens, both Jews and Arabs, American and
other coalition soldiers who fought in the 1991 Gulf War may owe
their lives to Israelīs courage, skill and foresight in June 1981.
Had it not been for the raid at Osiraq, Saddam Husseinīs forces might
have been equipped with atomic warheads in 1991. Ironically, the
Saudis, too, are in Jerusalemīs debt. Had it not been for Prime
Minister Beginīs resolve, Saddamīs SCUDs falling on Saudi Arabia
might have spawned immense casualties and lethal irradiation.
The jurisprudential correctness of Israelīs 1981 expression of
anticipatory self-defense against Iraq is manifestly obvious.
International law is not a suicide pact. Narrowly technical
interpretations of permissible force notwithstanding, no state -
Israel included - can be required to invite overwhelming aggression.
Recently, this point was made with considerable specificity in a
report to Prime Minister Ariel Sharon by "Project Daniel." This
report, Israelīs Strategic Future, is now available online and should
be studied closely in the months ahead by all interested parties.
(IsraelNationalNews Đ 01/30/05)
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