Louis René Beres, a specialist on matters of nuclear weapons and world politics, analyses the validity of Israel's use of preemptive or anticipatory self defense under international law, in light of an impending threat from Iran...
Abstract: For Israel, core issues surrounding Iran’s still-accelerating nuclear weapons program have been strategic and political, rather than legal. Nonetheless, if Israel should ever decide that it no longer has any reasonable alternative to launching a preemptive attack against certain Iranian military/industrial targets, this defensive first-strike would need to be justified under international law. In the following article, Professor Beres, who was Chair of Project Daniel (Israel, PM Sharon, 2003), analyzes Israel’s right to act in anticipatory self-defense against a formidable near-nuclear adversary, one that has several times expressed overtly genocidal intentions.
“The safety of the people shall be the highest law.”
-Cicero, On the Laws
Analytic Context: The State of Nature
World politics remains in a “state of nature,” what the early philosophers called a “State of War.” Within this condition of continuous anarchy – a bellum omnium contra omnes or “war of all against all” – international law still operates in decentralized form. This “Westphalian” dynamic describes a “vigilante” or “self-help” system of global power management.
Although codified norms do not usually allow states to strike first in self-defense, the law of nations does permit certain residual acts of “anticipatory self defense” under customary international law. In essence, some defensive first strikes or “preemption” could be considered permissible in variously threatening circumstances. But even if such resort to anticipatory self-defense could be deemed lawful, it might still prove to be unreasonably dangerous, strategically misconceived and/or tangibly ineffectual.
Subsidiary questions arise. What are the implications of such contradictions for Israel, a nuclear mini-state now imperiled by a rapidly nuclearizing Iran? Before Israel could ever decide rationally on invoking a calculated strategy of preemption vis-a-vis Iran, it’s leading policy makers and strategists would first need to assess this strategy according to two separate criteria of appraisal: law and strategy.
At some point, Israel could decide that a considered preemptive strike against selected hard Iranian targets (i.e., weapons/ weapons infrastructures) would prove convincingly legal, but still not be expected to “work.” Alternatively, Jerusalem could then conclude that any such considered strike would be promising or gainful in operational terms, but still be more-or-less conspicuously illegal.
There is more. For Israel, a danger of waiting too long is that Tehran could implement various protective measures that pose additional hazards. Deigned to guard against an Israeli preemption, these measures could involve the attachment of “hair trigger” launch mechanisms to Iranian nuclear weapon systems and/or the adoption of “launch on warning” policies, possibly coupled with worrisome pre-delegations of launch authority.
Considering Lawful Preemption
Optimally, Israel would do everything possible to prevent such destabilizing steps, especially because of the corollary risks of accidental or unauthorized attacks launched against its armaments and/or populations. Nonetheless, if such steps were ever to become a fait accompli, Jerusalem might still calculate, and correctly, that a preemptive strike would be lawful and necessary. This judgment would owe to the following reasoning: the expected Iranian retaliation, however damaging, could still be more tolerable than the plausibly expected consequences of Iranian first-strikes.
In its present jurisprudential form, Israel, which “began” in 1948, will last only as long as its leaders remain aptly attentive to Cicero’s primal warning about national “safety.” Significantly, such indispensable attentiveness could be consistent with the authoritative expectations of international law. International law is never a suicide pact. Israel’s basic security problems with specific Arab states and Iran could compel Jerusalem to decide once again between waiting for its enemies to strike first or strike first itself. When judged from a strategic and tactical perspective, the choice of a preemption option could sometime appear rational and cost-effective to Israel.
From the coinciding standpoint of international law, preemption might also represent a permissible option. In this connection, though subject to important constraints and conditions, the right of “anticipatory self-defense” is already well established under international law.
The Israeli Decision to Preempt in the Future
What does the ascertainable convergence of strategic and jurisprudential assessments of preemption say about Israel’s prospective calculations on striking first? It suggests, among other things, that Israel need not be deterred from undertaking security-maximizing forms of preemption out of fear that its actions would be described as criminal. Although a substantial number of states would condemn Israel for “aggression” under virtually any circumstances, this particular charge – so long as Israel’s preemptive strikes met the expectations of jus ad bellum (justice of war) and jus in bello (justice in war) – could be countered authoritatively by informed references to international law.
In jurisprudence, as in certain other realms, history deserves an evident pride of place, The right of self defense by forestalling an attack appears in Hugo Grotius’ Book II of The Law of War and Peace in 1625. Recognizing the need for “present danger” and threatening behavior that is “imminent in a point of time,” Grotius indicates that self defense is to be permitted not only after an attack has been suffered, but also in advance, that is, “where the deed may be anticipated.” Or, as he explains a bit further on in the same chapter, “It be lawful to kill him who is preparing to kill….”
A similar position was taken by Emmerich de Vattel. In Book II of The Law of Nations (1758), Vattel argues: “The safest plan 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. It may even anticipate the other’s design, being careful, however, not to act upon vague and doubtful suspicions, lest it should run the risk of becoming itself the aggressor.”
Grotius and Vattel parallel the Jewish interpreters, although the latter speak more generally of interpersonal relations than about international relations. Additionally, the Torah contains a prominent provision exonerating from guilt a potential victim of robbery with possible violence if, in self defense, he struck down and if necessary even killed the attacker before he committed any crime (Ex. 22:1). In the precise words of the rabbis, “If a man comes to slay you, forestall by slaying him!” (Rashi; Sanhedrin 72a).
Grotius and Vattel both caution against abusing the right of anticipatory self defense as a pretext for aggression, but this is an abuse that Israel, in its current relationship with Iran, could commit. As Iran seemingly considers itself in a condition of war with Israel, any Israeli preemption against this nuclearizing adversary would not represent an authentic act of anticipatory self-defense, but just one more military operation in an ongoing or protracted war. It follows further, in such circumstances, that the Israeli military operation’s legality would have to be appraised in terms of its apparent conformance or nonconformance with the relevant laws of war of international law (jus in bello).
Jurisprudentially, to identify any such operation as an act of aggression against another state that already considered itself at war with Israel, would be nonsense.
Background of Preemption in Law
Even if Iran were not in a verifiable condition of belligerence with the Jewish state, a condition periodically amplified by Tehran’s open calls for Israel’s destruction, an Israeli preemptive action could still prove to be law-enforcing. Israel, in the fashion of every state under world law, is peremptorily entitled to existential self-defense. Today, in an age of uniquely destructive weaponry, international law does not require Israel or any other state to expose its citizens to atomic annihilation.
The right of self-defense, we learn from Vattel, gives rise to the “right to resist injustice.” According to the writer’s argument at Chapter V of the Law of Nations, or the Principles of Natural Law (1758), “On the Observance of Justice between Nations”:
Justice is the foundation of all social life and the secure bond of all civil intercourse. Human society, instead of being an interchange of friendly assistance, would be no more than a vast system of robbery if no respect were shown for the virtue which gives to each his own. Its observance is even more necessary between Nations than between individuals, because injustice between Nations may be followed by the terrible consequences involved in an affray between powerful political bodies, and because it is more difficult to obtain redress…. An intentional act of injustice is certainly an injury. A Nation has, therefore, the right to punish it…. The right to resist injustice is derived from the right of self-protection.
The customary right of anticipatory self defense has its modern origins in the Caroline incident, an event that concerned the unsuccessful rebellion of 1837 in Upper Canada against British rule (a rebellion that aroused sympathy and support in the American border states). Following this landmark event, the serious threat of armed attack has generally been taken to justify a state’s militarily defensive action. In an exchange of diplomatic notes between the governments of the United States and Great Britain, then U.S. Secretary of State Daniel Webster outlined a framework for self defense which did not require an actual attack. Here, 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 for deliberation.”
In certain distinctly residual circumstances, permissible forms of anticipatory self-defense could be expressed via assassination/targeted killing (although classical philosophical and jurisprudential arguments supporting assassination are usually cast more narrowly in terms of a tyrannicide motif). Representing an alternative or addition to standard military forms of preemption, such targeted killing, in order to be consistent with appropriate international legal expectations, would need to be undertaken when the danger posed to Israel actually met the specific test of the Caroline. Accordingly, if the targeted killing were undertaken only to destroy the potential threat of an enemy, i.e., as a preventive action, it would not qualify as permissible in law.
If, however, the assassination were undertaken in anticipation of some immediate enemy aggression, i.e. as a preemptive action, it could still qualify as “anticipatory self-defense.”
There are several antecedent problems. First, in the “real world,” judgments concerning the immediacy of anticipated aggression are exceedingly difficult to make. Second, even where such judgments are ventured, it can never be altogether clear whether the degree of immediacy is sufficient to invoke preemption rather than prevention. Third, in meeting the legal requirements of defensive intent, a state may have to act preventively rather than preemptively, because waiting to allow a threat to become more immediate could have decisively or even intolerably negative strategic/tactical consequences. And fourth, the actual state-preserving benefits that might accrue from the assassination of enemy leaders are apt to be contingent upon not waiting until the danger posed is “instant, overwhelming, leaving no choice of means and no moment for deliberation.”
Some scholars argue that the customary right of anticipatory self defense articulated by the Caroline has been overridden by the specific language of Article 51 of the UN Charter. In this view, Article 51 fashions a new and more restrictive statement of self defense, one that relies on the literal qualification contained at Article 51, “….if an armed attack occurs.” Still, this interpretation ignores that international law cannot compel a state to wait until it absorbs a devastating or lethal first strike before acting to protect itself.
“The safety of the people shall be the highest law.”
There is more. The argument against a more restrictive view of self-defense is reinforced by the evident weaknesses of the U.N. Security Council in offering collective security against an aggressor. Both the Security Council and the General Assembly refused to censure Israel for its 1967 preemptive attack against certain belligerent Arab states. Inter alia, this refusal signified implicit approval by the United Nations of Israel’s 1967 resort to anticipatory self defense.
Before Israel could persuasively argue any future instances of anticipatory self defense under international law, however, a strong case would have to be made that Jerusalem had first sought to exhaust all available means of peaceful settlement. Even a very broad view of anticipatory self defense cannot relieve a state of peremptory obligations codified at Article 1 and at Article 2(3) of the UN Charter. Strictly speaking, these obligations should not necessarily be binding upon Israel because of the de facto condition of belligerency sustained by Iran, but the global community generally seems to have ignored this apparent state of war. It follows that Israel, should it ever decide upon exercising future instances of “preemption” against Iran, would be well advised to demonstrate its own consistent and comprehensive prior efforts at peaceful settlement.
Jewish-Historical Background and Future Genocide
Certain origins of such advice would have deep roots in ancient Israel. According to Grotius, citing to Deuteronomy in The Law of Prize and Booty, the Israelites were exempted from the issuance of warning announcements when dealing with previous enemies (what we might reference today as an ongoing or protracted war, precisely the condition that currently obtains between Israel and Iran.) 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 formal notification, 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.”
“Hence,” says Grotius, “we arrive at the following deduction”:
Once the formality of rerum repetitio has been observed, and a decree on the case in question has been issued, no further proclamation or sentence is required for the establishment of that right which arises in the actual process of execution. For [and this is especially relevant to modern Israel] in such circumstances, one is not undertaking a new war but merely carrying forward a war already undertaken. Thus the fact that justice has once been demanded and not obtained, suffices to justify a return to natural law….
Genocide is a word with very precise jurisprudential meaning. Codified at the Genocide Convention, a treaty that entered into force on January 12, 1951, it means any of a series of stipulated acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such….” The key to understanding and identifying genocide lies in the phrase, “intent to destroy.”
Outside of Iran, active support in the Arab world for genocide against the Jews is a matter of long historical record. Even before creation of the State of Israel, such support was displayed enthusiastically and openly during the Holocaust. On November 28, 1941, the Grand Mufti of Jerusalem, Haj Amin, met in Berlin with Adolph Hitler. The purpose of this meeting, which followed Haj Amin’s organization of SS troops in Bosnia, was to ensure cooperation on “The Jewish Question.”
It was necessary, Haj Amin insisted, that all Jews be sent to countries “where they would find themselves under active control, for example, in Poland, in order thereby to protect oneself from their menace and avoid the consequent damage.”
Neither Palestine’s “Non-Member Observer State” nor fully-sovereign Arab states have ever publicly criticized the Mufti’s strong complicity in the Holocaust. Indeed, during the 1950s and 1960s, Adolph Hitler remained an enormously popular figure in the Arab world. Unsurprisingly, responses in this world to the Eichmann trial in Jerusalem (1961) generally treated the mass murderer as a “martyr,” and congratulated the Nazi war criminal for having “conferred a real blessing on humanity” by enacting a “final solution.”
“Palestine” and Iran
Overall, the complex security situation is fraught not only with unprecedented danger, but also with considerable irony. Before Israel could begin to move seriously toward Palestinian sovereignty and independence, toward a “two-state solution,” any Iranian regime preparing for major war against Israel would have to markedly reverse such preparations. This is because Israel could not afford to confront the risks of another hostile Islamic state on its borders.
In the absence of such movement, the creation of Palestine could affect Israel’s inclination to preempt. Because of Israel’s small size and corresponding lack of “strategic depth,” its inclination to strike first at Iranian hard targets could then become especially high. Deprived of strategic depth, it could not hold out for as long as was possible when Palestine was still merely an “authority.”
It is plausible that a post-Palestine shift in nuclear strategy from deliberate ambiguity to disclosure could reduce Israel’s incentive to preempt, but only if Jerusalem were first made to believe that its nuclear deterrent threat was now being taken with sufficient seriousness by Iran.
Several corollary problems must be considered. First, how would Israel’s leadership know that taking the bomb out of the “basement” had improved its deterrence posture? To a certain extent, the credibility of Jerusalem’s nuclear threats would be contingent upon the severity of different provocations. It might be believable if Israel were to threaten nuclear reprisals for provocations that endanger the physical survival of the Jewish state, but it would almost certainly be less believable to threaten such reprisals for relatively minor territorial infringements or terrorist incursions.
There are other problems. To function successfully, Israel’s deterrent, even after being removed from the “basement,” would have to be rendered secure from enemy preemptive strikes. Israel must also remain wary of “decapitation,” of losing the “head” of its military command and control system, because of enemy first strike aggressions. Should Israel’s enemies be unpersuaded by Jerusalem’s conspicuous move away from deliberate ambiguity, they might then initiate such strikes as could immobilize Israel’s order of battle.
A contrary argument about the effects of Palestine on Israel’s inclination to preempt suggests that because of Israel’s newly expanded vulnerability, its nuclear deterrent could become more credible than ever before. As a result, Jerusalem could now better afford not to strike first than when it still administered disputed Palestinian territories. In this situation, the principal benefit of shifting from ambiguity to disclosure would seem to lie in an explicitly-identified escalation ladder, revealing a broad array of intended Israeli reprisals, ranging from limited conventional responses to measured or calibrated nuclear strikes.
In weighing the different arguments concerning the effect of Palestine upon an Israeli preemption, particular attention must be directed toward Israel’s presumptions about the inevitability of war with Iran and its long-term expectations for Iranian vulnerability. Should Israel’s leaders conclude that the creation of Palestine would make major war with Iran more-or-less inevitable, and that, over time, Iranian vulnerability to Israel would likely diminish, Jerusalem’s inclination to strike first could be increased. To a certain extent, Israel’s tactical judgments on preemption will be affected by antecedent decisions on nuclear strategy, namely decisions concerning “countervalue” vs. “counterforce” objectives.
In making its nuclear choices, Israel will have to confront a paradox. Credible nuclear deterrence, essential to security and survival in a world made more dangerous by the creation of Palestine, would require “usable” nuclear weapons. If these weapons were obviously inappropriate for any reasonable objective, they would not deter.
All things considered, Israel, if confronted by a new state of Palestine, would be well-advised to do everything possible to prevent the appearance of a nuclear Iran, possibly including variously pertinent non-nuclear preemptions. Under these portentous conditions, Israel would require a very believable (and hence usable) nuclear deterrent, one that could be employed without igniting “Armageddon” for all regional belligerents and that could serve some damage-limiting military purpose (whatever the collateral effects) against Iranian weapons (nuclear and non-nuclear) should deterrence fail.
Creation of a fully-sovereign Palestine could have a dramatic effect on Jerusalem’s decisions concerning anticipatory self-defense. Israel’s extant nuclear weapons status and strategy would impact and influence this vital decision. More precisely, should Israeli decision-makers determine that the country’s nuclear weapons could support preemption by deterring Iran from retaliating, this “atomic factor” could encourage Israeli defensive first strikes. If, on the other hand, Jerusalem were to calculate that Iran or (in the future) other prospective target states would be unimpressed by any threats of an Israeli nuclear counter-retaliation, this variable would likely not encourage defensive first strikes.
Could the precise form of Israel’s nuclear strategy make a difference in shaping these circumstances? Relying upon nuclear weapons not to deter Iranian first strikes, but to support its own preemptive attacks, Israel would have to choose between continued nuclear ambiguity (implicit threats) and nuclear disclosure (explicit threats). How should it choose?
More than anywhere else, the answer lies in Jerusalem’s confidence that its adversaries already acknowledge Israel’s “calibrated” nuclear capability. Should this confidence be high, there could still be variously compelling valid reasons to take the bomb out of the “basement.” If such confidence were low, the move to disclosure would likely be even more purposeful, because any critical reactions by the United States would be less worrisome for Israel in the “Cold War II” strategic environment.
What about Afghanistan? On its face, the fall of that “graveyard of empires” revealed no verifiably direct connections to Israel’s national security. Nonetheless, the overwhelming defeat of its American patron in that volatile region could have markedly significant “spillover effects” for Israel. Most plausible, in this regard, would be emboldened sub-national Islamist adversaries (e.g., Sunni Hamas, Shiite Hezbollah, ISIS-K); expanded strife between pertinent enemies and unstable states (e.g., Taliban vs. ISIS-K); and additional geo-strategic influence for the already-nuclear Islamic state of Pakistan). This last result would likely elicit certain “countervailing” reactions from India and/or China, reactions that would not be ignored by Russia.
In view of what is now generally believed throughout the Middle East and the wider world, there is every good reason to assume that Israel’s nuclear arsenal does exist and that it could be “nuanced” to meet strategic particularities of any specific threat. Plausibly, Israel’s enemies already share this key assumption and need no further convincing about Jerusalem’s basic nuclear capacities. The most critical questions about Israel’s nuclear deterrent would not be about capability, but willingness. Inter alia, how likely is it that Israel, after launching non-nuclear preemptive strikes against enemy hard targets, would respond to enemy reprisals with any sort nuclear counter-retaliation?
These are bewildering matters. What will Israeli planners conclude? The answer depends in part upon their view of Iran’s expectedly reciprocal judgments concerning Israel’s pertinent leaders. Do these judgments suggest a leadership that believes it can gain the upper hand with nuclear counter-retaliation? Or do they suggest a leadership that believes such counter-retaliation would bring upon Israel variously intolerable levels of adversarial harm and destruction?
Depending upon the way in which the pertinent enemy decision-makers interpret Israel’s authoritative perceptions, they will accept or reject the cost-effectiveness of a non-nuclear retaliation against Israel. This implies that it is in Israel’s best interest to communicate the following strategic assumption to its relevant enemies: Israel would be acting rationally by responding to certain enemy non-nuclear reprisals to Israeli preemptive attacks with a nuclear counter-retaliation. The plausibility of this assumption could be enhanced considerably if the enemy reprisals (most likely Iranian) were to involve chemical and/or biological weapons.
All of these calculations assume rationality. In the absence of calculations that compare the costs and benefits of strategic alternatives, what will happen in the Middle East must always remain a matter of conjecture. The prospect of non-rational judgments in the region is always plausible, especially as the influence of Islamist/Jihadist ideology remains strongly determinative among Iranian decisional elites.
To the extent that Israel might one day believe itself confronted with non-rational state enemies, particularly ones with highly destructive weapons in their arsenals, its incentive to preempt could become overwhelming. In fact, should such enemies ever be believed to hold nuclear weapons, Israel might even decide rationally to launch a nuclear preemption against these enemy arsenals. This would appear to be the only calculable circumstance in which a rational Israeli preemptive strike could ever be nuclear.
Iran should understand from all this that there are foreseeable conditions wherein Jerusalem might decide to actually use its nuclear weapons. In essence, these conditions would concern the dissembling prospect of a total military defeat. Faced with imminent destruction of the state, Israel’s leaders would almost certainly do whatever is needed to survive, including a resort to nuclear retaliation, nuclear counter-retaliation, nuclear preemption or (most “residual” of all) nuclear war-fighting.
Should Iran launch a nuclear first-strike against Israel, Jerusalem would certainly respond, to the extent possible, with a nuclear retaliatory strike. If this enemy’s first-strikes were to involve other forms of unconventional weapons, i.e., chemical and/or biological weapons, Israel might launch a nuclear reprisal, depending, in large measure, upon Jerusalem’s expectations of follow-on aggression and on its associated calculations of comparative damage-limitation. If Israel absorbed a massive conventional attack, a nuclear retaliation could not automatically be ruled out, especially if: (a) the aggressor were perceived to hold nuclear and/or other unconventional weapons in reserve; and/or (b) Israel’s leaders were to believe that non-nuclear retaliations could not prevent destruction of the Jewish state. A nuclear retaliation by Israel could be ruled out only in those circumstances where Iranian enemy aggression were clearly conventional, “typical” (i.e., consistent with previous instances of enemy attack, in both degree and intent) and determinably hard-target directed.
Nuclear Counter Retaliation
Should Israel feel compelled to preempt Iranian enemy aggression with conventional weapons, the Iranian response would largely determine Jerusalem’s next moves. If this response were in any way nuclear, Israel would most assuredly resort to nuclear counter-retaliation. If this retaliation were to involve chemical and/or biological weapons, Israel might also feel pressed to take the escalatory initiative – again, depending upon Jerusalem’s considered judgments of enemy intent and its calculations of essential damage-limitation.
Should the Iranian response to Israel’s preemption be limited to hard-target conventional strikes, it is unlikely that Jerusalem would move on to nuclear counter-retaliations. If, however, the enemy conventional retaliation was all-out and directed toward civilian populations as well as to military targets, an Israeli nuclear counter-retaliation could not be ruled out ipso facto. It would appear that such a counter-retaliation could be ruled out only if the enemy conventional retaliation were ascertainably proportionate to Israel’s preemption, confined exclusively to Israeli hard-targets, circumscribed by the jurisprudential limits of “military necessity” and accompanied by variously explicit assurances of non-escalatory intent.
It is highly unlikely (perhaps even inconceivable) that Israel would ever decide to launch a preemptive nuclear strike. Although strategic circumstances could arise wherein such a strike would be determinably rational (i.e., calculated prospective benefits of the strike would outweigh prospective costs), it is implausible that Israel would ever allow itself to reach such patently “end-of-the-line” alternatives. Moreover, unless the nuclear weapons involved were used in a fashion consistent with authoritative expectations of the laws of war – the limits of “discrimination” (aka “distinction”); “proportionality” and “military necessity” – this form of preemption would represent an egregious violation of international law on its face.
There is more. Even if such consistency were possible, the psychological/political impact of such activity on the world community would be starkly negative and far-reaching. It follows that an Israeli nuclear preemption could conceivably be expected only: (a) where Israel’s Iranian enemies had acquired nuclear and/or other unconventional weapons judged capable of destroying the state; (b) where these enemies had made clear that their intentions paralleled their capabilities; (c) where these enemies were believed ready to begin a “countdown to launch;” and (d) where Jerusalem believed that Israeli non-nuclear preemptions could not achieve the needed minimum levels of damage-limitation, i.e., levels consistent with physical preservation of the polity.
Should nuclear weapons ever be introduced into conflict between Israel and Iran, either by the Jewish State or by the Iranian foe, nuclear war-fighting, at one level or another, would ensue. This would hold true as long as: (a) enemy first-strikes against Israel would not destroy Jerusalem’s second-strike nuclear capability; (b) enemy retaliations for Israeli conventional preemption would not destroy Jerusalem’s nuclear counter-retaliatory capability; (c) Israeli preemptive strikes involving nuclear weapons would not destroy Iranian second-strike nuclear capabilities; and (d) Israeli retaliation for enemy conventional first-strikes would not destroy Iranian nuclear counter-retaliatory capability.
It follows from Israel’s strategic requirements that Jerusalem should do whatever is needed to ensure the likelihood of (a) and (b) above, and the unlikelihood of (c) and (d). This means, among other things, strengthening the hard-target kill capacity of its recognizably survivable and penetration-capable nuclear forces.
What, exactly, would a nuclear war “mean”? Even the most limited nuclear conflict would signal genuine catastrophe. Just the immediate effects of the explosions; thermal radiation, nuclear radiation, and blast damage, could cause intolerably wide swaths of death and devastation.
None of this is meant to suggest that an Israeli conventional defensive first-strike would raise the likelihood of a nuclear war. To the contrary, Israel’s resort to a non-nuclear preemption might sometime represent the optimal way to prevent a nuclear war. Nothing could be worse for Israel (and possibly its Arab neighbor states as well) than delaying an essential preemption until Iran was already nuclear. Plainly, however, the best-case scenario for Israel and its regional Arab neighbors would be to neutralize the impending Iranian nuclear threat without launching any preemption.
Plus ca change….
Plus ca change, plus c’est la même chose. “The more things change, the more they remain the same.” Despite continuous efforts to preserve the state, Israel remains subject to variously credible threats of existential harm. This “Jewish State,” notwithstanding the country’s extraordinarily high levels of military technology and also international law’s longstanding presumption of juridical solidarity between all States, could sometime face intolerable risks of annihilation. To prevent such a prospect, Israel could resort to the assorted legal protections afforded by “anticipatory self-defense.”
As long as Israel’s expression of a permissible preemption had been prompted by imminent attack dangers and was executed in verifiable compliance with the authoritative expectations of discrimination, proportionality, and military necessity, the defensive first-strike option could remain lawful. Such lawfulness, o course, would not automatically imply any corresponding strategic benefits. Always, reliable Israeli judgments of legality and efficacy would remain discrete and analytically distinct.
With the approaching “eleventh hour,” Jerusalem will now need to clarify and also enhance its nuclear deterrence policy. Special attention ought to be directed toward codifying and maintaining a recognizably survivable and penetration-capable strategic nuclear force. Accordingly, the nuclear options included in this more conspicuous force would need to range along different points along a continuum of military destructiveness. In essence, Israel will require not an “all or nothing” nuclear deterrent capacity, but one recognizably subject to variously tangible forms of “calibration.”
It will also be important to continuously enhance Israel’s ballistic missile defenses, and to convincingly communicate to Tehran that Israeli nuclear forces are (1) usable; and (2) would be used as a complement (not an alternative) to well-planned BMD interceptions. Among other things, this sort of indispensable communication should include a considered end to Israel’s “deliberate nuclear ambiguity.”
Israeli Nuclear Deterrence: Not Just a Game of Chance
Nuclear deterrence is a “game” that sane national leaders may sometime have to play in the Middle East, but it should always be approached by Israel as a game of strategy, not one of chance. In Jerusalem, this means, among other things, a continuing willingness to respect the full range of doctrinal complexity – both its own military doctrines and those of pertinent enemies – and a corresponding determination to forge ahead with reciprocally complex security policies. Inevitably, to successfully influence the choices that prospectively fearsome adversaries could make vis-à-vis Israel, Jerusalem will need to clarify unambiguously that its conventional and nuclear deterrence are seamlessly intersecting and that Israel stands ready to counter enemy attacks at every decipherable level of possible confrontation.
There remain two final but important points to be made in this analytic examination of Israel, preemption and anticipatory self-defense.
First, whether Israel’s intersecting and overlapping deterrent processes are geared primarily toward conventional or nuclear threats, their success will ultimately depend upon the expected rationality of the nation’s relevant enemies. In those residual cases where such rationality would appear implausible or improbable, Jerusalem could find itself under considerable pressures to strike first preemptively. If Jerusalem’s expected responses were to be judged rational, they might then need to include conclusive and operationally-reliable options for “anticipatory self-defense.” For Israel’s sake, it goes without saying that regional conflict prospects (a) should always be curtailed at the very lowest possible levels of controlled engagement; and that that under no circumstances (b) should Israel find itself having to preempt against an already nuclear adversary.
To prevent such unacceptable but still imaginable circumstances vis-à-vis Iran should represent Jerusalem’s overriding security obligation.
Second, even the most meticulous plans for preventing a deliberately-inflicted nuclear conflict would not automatically remove the attendant dangers of an inadvertent or accidental nuclear war. While an accidental nuclear war would necessarily be inadvertent, there are determinable forms of inadvertent nuclear war that need not be caused by mechanical, electrical or computer accident. These particular but still-consequential forms of an unintentional nuclear conflict could represent the unexpected result of misjudgment or simple miscalculation, whether created (c) as a singular error by one or both sides to a particular (two-party) nuclear crisis escalation; or (d) by still unforeseen “synergies” arising between singular miscalculations.
A Period of Unprecedented Strategic Uncertainties for Israel
Israel, though partially misled by contrived political promises of the “Abraham Accords,” is entering into a period of cascading strategic uncertainties. While its national leaders and a new prime minister may suggest that security matters are generally “looking up” – that the expected benefits of these Trump-brokered Accords and corollary normalization agreements with Sudan and Morocco will outweigh all risks – such simplistic calculations would eventually be forced to confront a less auspicious geopolitical reality. Even if US President Joseph Biden should succeed in bringing the United States and Iran back into calculably viable JCPOA-type arrangements, Trump-accelerated harms of Iranian ‘nuclearization’ are unlikely to be halted or reversed. Considered together with continuously inauspicious strategic developments in Afghanistan, this sober conclusion signifies a basic obligation for Jerusalem to carefully fashion a progressively refined national strategy of nuclear deterrence and nuclear war avoidance.
In the end, the truest forms of Israeli military power, whether expressed as “anticipatory self-defense” or as some calibrated form of deterrence, must reflect a triumph of “mind over mind,” not just “mind over matter.” Ultimately, Israel’s most compelling forms of influence will need to derive not from the barrel of a gun or missile, but from the antecedent advantages of refined intellectual power. In Jerusalem, these incomparable advantages should be explored according to two specific criteria of assessment: law and strategy. These always complex expectations would not necessarily be “in synch” with each other, but instead, starkly contradictory or even diametrically opposed.
For Israel, what will be required is a suitably deep appreciation of decisional complexity and a corresponding willingness to approach deeply intersecting issues from the standpoint of intellect-directed inquiry. In the best of all possible worlds, there would be no need for any national considerations of preemption/anticipatory self-defense, but – incontestably – such a world still remains a long way off. In the meantime, what must remain important for Israel is to act in full support of its own presumed survival interests without placing other states or peoples in the path of unnecessary or illegal harms.
It’s a tall order, but – with reason rather than rancor – it can be filled.
Louis René Beres (Ph.D., 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). Professor Beres’ most pertinent scholarly writings can be found at Israel Defense and in the Harvard National Security Journal (Harvard Law School); The International Journal of Intelligence and Counterintelligence; The Brown Journal of World Affairs; Yale Global Online; The Bulletin of the Atomic Scientists: Parameters: Journal of the U.S. Army War College; JURIST; The War Room (Pentagon); Modern War Institute (West Point); The Israel Journal of Foreign Affairs; World Politics (Princeton); The Jerusalem Post; International Security (Harvard); and Oxford University Press (Oxford Yearbook of International Law and Jurisprudence). Dr. Beres was born in Zürich, Switzerland, at the end of World War II. His twelfth and latest book is Surviving Amid Chaos: Israel’s Nuclear Strategy, Rowman & Littlefield, 2016 (2nd ed., 2018).
Suggested citation: Louis René Beres, Israel, Preemption and Anticipatory Self-Defense, JURIST – Academic Commentary, October 27, 2021, https://www.jurist.org/commentary/2021/10/louis-rene-beres-israel-preemption-self-defense/.
This article was prepared for publication by Sambhav Sharma, a JURIST Staff Editor. Please direct any questions or comments to him at firstname.lastname@example.org
Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.