ABSTRACT: In response to former US President Donald J. Trump’s unilateral American withdrawal from the July 2015 Iran Pact (JCPOA),[1] the Islamic Republic of Iran accelerated and reinvigorated its military nuclear program. More recently, nuclear talks between the two countries were re-started by President Joseph Biden, but are expected to be placed on hold until after Iran’s new hardline president, Ebrahem Raisi, is sworn into office. Also plausible is that negotiations could break down altogether and that a precipitating event, either foreseen or unforeseen, would spark an Iran-US nuclear crisis. Such a crisis could quickly involve Israel.[2]

“Deterrence is concerned with influencing the choices that another party will make, and doing it by influencing his expectations of how we will behave.”-Thomas C. Schelling, The Strategy of Conflict (1960)

Background of the problem

For many years, Israel’s military and intelligence chiefs had hoped for an American strike against Iran; ideally, a comprehensive preemptive attack on Iran’s pertinent nuclear infrastructures.[3] Nonetheless, any plausible US-Iran nuclear crisis could have become more costly than gainful for Israel. Any such crisis could have caused Jerusalem to recall too late the succinct maxim: “Be careful what you wish for.”

Explanations are required. If US President Joseph Biden should ever become embroiled in a major security crisis with Iran, all immediately relevant policy issues would center on strategy and tactics, not on considerations of law. These inherently complex policy issues could quickly become overlapping and interpenetrating. At times, therefore, whether witting or unwitting, Washington’s operational crisis decisions could sometimes prove jurisprudentially determinative.

Depending upon which country was to strike first in any belligerent US-Iran context, American military actions could become either law-violating or law-enforcing. Similar legal questions would follow from the particular types of weapons used and from the expressed regard or disregard shown for non-combatant (civilian) populations.

               “Everything is simple in war,” says Carl von Clausewitz in On War, “but even the simplest thing is very difficult.” None of these legal questions are meant to suggest that a first use of force would be ipso facto illegal. This is the case because customary international law (defined at Article 38 of the UN’s Statute of the International Court of Justice[4]) expressly allows for certain residual resort to “anticipatory self-defense.”[5] Following The Caroline (1837), international law need never be taken to represent some form or other of “suicide pact.”[6]

Intersecting jurisprudential and strategic considerations

               There is more. International law is always a part of each individual state’s corpus of domestic or municipal law, an authoritative incorporation most immediately conspicuous for the United States at Article 6 of the US Constitution (the Supremacy Clause) and in various US Supreme Court decisions, especially the Paquete Habana (1900) and Tel Oren v. Libyan Arab Republic (1981).[7]

               Certain antecedent questions now also arise. What, precisely, does US President Joseph Biden have in mind in preparing suitably for a prospective nuclear crisis or armed conflict with Iran? What would this presumptive American expectation mean for the derivative safety of US ally Israel?[8] What related benefits, if any, might be expected from the Trump-brokered Abraham Accords?[9] And what are the precise definitional parameters of “nuclear crisis”?

               This last question has an easy but still-complicating answer. Any US crisis with Iran must be considered per se “nuclear,” even if it takes place before that country becomes an operationally capable atomic power. Still, any crisis with Iran would become more demonstrably and dramatically nuclear where both states were “Members of the Nuclear Club.” This is the case even though a substantial and protracted nuclear force asymmetry would clearly obtain between Washington and Tehran.

               Once a genuine conflict was plainly underway between Iran and the United States,[10] full-scale military engagements could quickly or incrementally involve Israeli armed forces (IDF). In certain manifestly worst case scenarios, these clashes would involve unconventional weapons, and directly impact Israel’s vulnerable civilian populations.[11] The most fearful narratives here would obviously be ones that involve nuclear ordnance.[12]

               In anticipation, capable strategic and jurisprudential thinking is required in both Washington and Jerusalem. Even during a potentially fleeting time in which Israel would remain the only regional nuclear power, an American war with Iran could elicit Israeli nuclear deterrence threats[13] and/or Israeli nuclear reprisals.[14] For Israel, such threats or reprisals could be entirely rational[15]and fully legal.[16]

Plausible scenarios

How might such dissembling circumstances emerge? As a “bolt-from-the-blue” spasm of violence, or in less blatant stages; that is, in variously difficult-to- fathom increments of harm? Most credibly, a “collateral war” would come to Israel as a catastrophic fait accompli, a multi-pronged belligerency wherein even the most comprehensive security preparations in Jerusalem/Tel-Aviv would quite suddenly prove inadequate. What then? What would likely happen next, operationally and legally?

               The only meaningful answer to such inherently problematic queries must include aptly candid affirmations of strategic unpredictability. In science and mathematics, accurate statements of probability must always be drawn from the discernible frequency of relevant past events. In those increasingly dense strategic matters currently dangling before America, Iran and Israel,[17] there are no relevant past events.

               Matters here are made even more bewildering by already ongoing non-nuclear problems in the Middle East. Most urgent of these problems is the increasingly dramatic shortage of water and the growing uncertainty of electrical power. Though military strategists might not ordinarily factor in such “non-military” difficulties as primary to nuclear war avoidance, national security decision-making is ultimately carried out by flesh and blood human beings. Prima facie, such kindred creatures of biology will always be affected by the most elementary primal needs and expectations.

               Strategically, there is more here to ponder. For the moment, at least, Joe Biden has identified no specific military doctrine for tangible application in this theatre. Once confronted with a “no doctrine” war launched against Iran by an American president, whether as defensive first-strike or as retaliation (both could conceivably be lawful), Israel’s senior strategists would need to fashion their own corresponding doctrines – more-or-less ex nihilo.  

               How exactly should Jerusalem/Tel Aviv accurately anticipate Iranian or Iranian-surrogate attacks on Israeli targets? As an antecedent question, how should these decision-makers and planners best identify which of these vulnerable targets would be presumptively “high value”? At some point, such an Intelligence Community/Ministry of Defense (MOD) operational challenge could include the small defending country’s Dimona nuclear reactor. In 1991 and 2014, the ultrasensitive facility at Dimona already came under rocket and missile attack from separate Iraqi and Hamas aggressions.[18]

               In any upcoming conflict with the United States, Tehran would likely regard direct attacks upon selected Israeli targets as proper “retaliations” for American strikes. This is the case whether these strikes were launched as an initial move of war against the Islamic Republic and its surrogates or a variously foreseeable response to Iranian first strikes. Potentially, Iranian forces could gain operational access to hypersonic rockets or missiles. Should such                                       access be obtained, Israel’s critical capacity to shoot down hypersonic glide vehicles (HGVs) and/or hypersonic cruise missiles (HCMs) might prove sorely inadequate.

               What would happen next? In logical response, considerations of law and justice would likely prove anterior to visceral considerations of victory and survival. Among other things, could mean military escalations that are anything but gainful or “cost-effective.”

               When pertinent options are examined dialectically, as they should, it could be to Tehran’s perceived advantage to drag Israel into any US or Iran-initiated war and to do this ostentatiously. Striking the US homeland would prove vastly more difficult for Iran, and also more likely elicit a range of intolerable reprisals. On its face, any US-initiated war against Iran would strengthen Saudi military power specifically and Sunni Arab military power in general. While such an expected strengthening might now seem less worrisome to Israel than expanding Iranian militarization, this delicate strategic calculus could reverse very quickly.

 Israeli planners would need to investigate a number of previously disregarded military options against specific Sunni Arab adversaries, including legal questions of jus ad bellum and jus in bello.[19]Simultaneously, these planners would need to calculate prospective Iranian activation of Hezbollah and Houthi militias against not only Israel directly, but also Saudi Arabia and/or the United Arab Emirates. Regarding direct Shiite militia attacks against Israel, the main threat would be to Israeli shipping in the Red Sea. At this point, the Houthis maintain a real but still-limited capacity to target Israel from Yemen with long-range missiles and drones. Earlier, Iran played a major role in enabling Gaza terror factions (mostly Hamas) to produce usable weapons; today, the Islamic Republic is exporting valuable technological know-how to expanding Houthi forces in Yemen.

A complex geopolitics

Iran is seeking to become a regional hegemon in a manifestly “opaque” theater of conflict. Over time, both the United States and Israel must do what is possible to curb further Iranian activation of Houthi and Hezbollah militias. Assuredly, once Iran is able to cross the nuclear military threshold, all such inhibiting tactics would become expansively dangerous. Unless the United States approaches these fragmenting sources of Middle East instability in a more suitably coherent fashion, Israel is likely to be left “holding the bag.” Now, of course, in the summer of 2021, American forces are rapidly abandoning Afghanistan to assorted and diverse Jihadi forces. A geo-strategic vacuum will emerge to the palpable detriment of Israel.

It’s a very delicate regional balance of power. For years, a Salafi/Deobandi (Sunni) Crescent has emerged to challenge the Shiite Crescent. The objective is an attempt by Al Qaeda and other Salafi/Deobandi Islamist groups to counter the Crescent created by Iraq, Syria and Lebanon. 

Unambiguously, Iraq, Syria and Lebanon are in a state of near-collapse –  a result especially of severe water and electrical shortages coupled with pandemic disease. “Salafi Crescent” reflects Sunni ambition to establish a caliphate controlling much of the Middle East and forming the Islamic State “from Diyala (in eastern Iraq) to Beirut.” Al-Qaeda’s hatred of the Shiites was already expressed by its founder Abu Musab al-Zarqawi, who called them “the insurmountable obstacle, the prowling serpent…the enemy lying in wait, and ordered his followers to ’fight them.’”

                Should the Biden-led US military ever find itself in a two-front or multi-front war –  a complex conflict wherein American forces are battling in Asia (North Korea) and the Middle East simultaneously – Israel could find itself fighting on its own. For such an exceptionally complicating scenario to be suitably appreciated, Israeli strategists would first need to bear in mind that any “whole” of tangible deteriorations caused by multi-front engagements could effectively exceed the sum of constituent “parts.”[20]

               This means, among other things, that Israeli strategists and planners will need to remain persistently sensitive to all credible synergies. It must go without saying that the former Trump administration (ushered into power at the 2016 Republican National Convention by Keynote “Speaker” Duck Dynasty) was unaccustomed to any such challenging intellectual calculations. For those now-discarded planners in Washington, complex strategic decisions could best be extrapolated from the commerce-driven worlds of real-estate manipulation and casino gambling.

               If only the United States had earlier paid attention to Friedrich Nietzsche’s simple warning in Zarathustra: “Do not seek the Higher Man at the marketplace.”

               Presently, there is still time for Washington and Jerusalem to recall certain timeless insights of Prussian strategist Carl von Clausewitz. For the author of On War, the determining standard of reasonableness in any military contest must always lie in presumed political outcomes. For a state to get caught up in war – any war – without adequately clear political expectations is always a mistake. Here, both Washington and Jerusalem must concern themselves not only with Iranian power projections and expansions, but also with the perilously uncertain prospects of the “Sunni Crescent,” an array of more-or-less organized Sunni forces intending to combat Shiite adventurism. If this were not complicated enough, planners in Washington and Jerusalem/Tel Aviv must also consider various believable intersections or synergies, consideration’s that will inevitably pose a staggering measure of intellectual challenge.

Recent regional histories

For more years than we may care to recollect, futile American wars remained underway in Iraq and Afghanistan.  In short time, for Iraqis and Afghans, their once-hoped-for oases of regional stability will regress to what seventeenth-century English philosopher Thomas Hobbes would have called a “war of all against all.”[21] At best, what eventually unravels in these severely fractured countries will be no worse than if these wars had never even been fought. At worst, what unravels will be substantially more unstable.

               Either way, what is now unraveling in Iraq and Afghan will never represent a welcome political outcome.

               Shouldn’t we all now inquire, accordingly: Did Americans and others sacrifice so much blood and treasure to bring about, at best, status quo ante bellum?

               Over the years, with the now obvious exception of North Korea,[22] America’s principal doctrinal enemy has changed, dramatically, from “communism” to “Islamism” or “Jihadism.” This time, however, the ideological adversary is palpable, real and not merely presumptive.  This time it is also a formidable and finely-textured foe, one that requires continuously serious analytic study, not just ad hoc responses or seat-of-the-pants US presidential eruptions. There are times, perhaps, when real or contrived bellicosity can serve American national security policy objectives (e.g., the possible deterrence benefit of pretended irrationality) and objectives of certain close allies (e.g., Israel), but not where it is detached from previously-constructed theoretical foundations.[23]

               There is more. The Jihadist enemy of America and Israel remains a foe that can never be fully defeated, at least not in any measurable final sense. This determined enemy will not be immobilized on any of the more usual or traditional military battlefields.[24]  Never.

               If at some point a particular Jihadi adversary has seemingly been vanquished by US military forces in one country or another, it will likely re-group and reappear elsewhere. After Iraq, after Afghanistan, even after Syria (which now dissembles with Russian support of a genocidal regime that has always been hostile to Israel), America will face resurgent adversaries in hard-to-manage and geographically far-flung places. These locales include Sudan, Mali, Nigeria, Yemen, Somalia, Egypt, and perhaps even Bangladesh or (in  the future) “Palestine.”[25] In the end, the “final” resolution to various conflicts will largely be a matter of will.[26]

               During the Trump Era in the Middle East, an American president and his National Security Advisor sounded alarm bells over Iran –  and this after the United States, not Iran, withdrew from an international legal agreement that was less than perfect,[27] but (reasonably) better than nothing at all.[28]

Preemption and anticipatory self-defense

When all these intersecting factors are taken into suitable intellectual account, there remains a residual argument (one that might quickly be anticipated in Israel) that a US-generated war with Iran would de facto amount to an anti-nuclear preemption[29] or to some similarly purposeful act of “anticipatory self-defense.”[30] Here, and with little reasonable doubt, the American war would be regarded as “cost-effective” or “net gainful” in Jerusalem/Tel Aviv.[31] This visceral assessment, however, could become a matter of what Sigmund Freud called “wish fulfillment” rather than of one of any serious strategic assessment (risks and benefits).

               Realistically, there is only a tiny likelihood that American bombs and missiles would soon be adequately targeted on widely multiplied/hardened/dispersed Iranian nuclear infrastructures.

               In reality, at least for the present, any US war against Iran would be contrary to Israel’s core national security interests and obligations. Glib reassurances to the contrary from Jerusalem/Tel Aviv or Washington (or both) could be prospectively lethal for Israel. Though assuredly genuine, the attack threat from Iran should never be taken as an opening for crudely simplifying political rhetoric. Instead, this threat should be assessed and calibrated dialectically,[32] as reliably as possible according to all normally verifiable standards of enemy force posture estimations.[33]

                If, at any point during crisis bargaining between Iran, Hezbollah, Israel and the United States, one side or the other should place too great a value on achieving “escalation dominance”[34] and too little value on parallel considerations of national safety, the expanding conflict could promptly turn “out of control.” Any such consequential deterioration would be especially or even uniquely worrisome if Israel threatened or launched some of its presumptive nuclear forces. This is the case irrespective of any promised strategic support for Israel from the United States.

The importance of doctrine

               In sum, if Israel should look again to the United States for seamlessly capable geo-strategic leadership, it could be taking unprecedented national security risks. At a minimum, Israel has the incontestable right (and also the obligation – to its own citizens) to expect fully decipherable expressions of US military doctrine. Going forward, unless it should insist more firmly upon maintaining this critical right, Israel could then have to face starkly injurious security outcomes. The considered prospect of a fully-sovereign Palestinian state would need to be taken here as a significant “intervening variable.”[35]

                Every state’s first responsibility is to assure and maintain citizen protection; citizen allegiance is therefore contingent upon such valid assurances.  Most famous in pertinent political theory is the classic statement of seventeenth-century Englishman Thomas Hobbes, expressed at Chapter XXI of his Leviathan: “The obligation of subjects to the sovereign is understood to last so long, and no longer, then the power lasteth, by which he is able to protect them.” Later, Thomas Jefferson, third president of the United States, described this obligation as binding upon all the nations. Writing his Opinion on the French Treaties (April 28, 1793), Jefferson opined: “The nation itself, bound necessarily to whatever it’s preservation and safety require, cannot enter into engagements contrary to its indispensable obligations.”[36]

               There is more. In law, every state has an enduring obligation to oppose and (if necessary) suitably punish aggression. Punishment of aggression is a longstanding peremptory expectation of international criminal law.  The foundational principle of Nullum crimen sine poena, “No crime without a punishment,” has its origins in the Code of Hammurabi (c. 1728 – 1686 B.C.E.); the Laws of Eshnunna (c. 2000 B.C.E.); the even earlier Code of Ur-Nammu (c. 2100 B.C.E.) and the law of exact retaliation, or Lex Talionis, which ispresented in three separate passages of the Jewish Torah. 

               For Israel, a uniformly continuous concern with certain basic jurisprudential principles could advance its legal as well as strategic objectives, most plainly those that jurist William Blackstone had identified in his Commentaries on the Law of England (Book 4 “Of Public Wrongs”): “Each state is expected, perpetually,” noted Blackstone, “to aid and enforce the law of nations, as part of the common law, by inflicting an adequate punishment upon the offenses against that universal law.”

                Such ideas did not arise in a theoretic or intellectual vacuum. Ultimately, Blackstone is indebted to Cicero’s description of natural law in The Republic: “True law is right reason, harmonious with nature, diffused among all, constant, eternal; a law which calls to duty by its commands and restrains from evil by its prohibitions….” Natural law is never an adornment. Always, it lies at the very heart of United States Constitutional law and of all that conceivably derives therefrom.

Just wars and cumulative complexities

               As for “just wars” pertaining to both jus ad bellum and jus in bello criteria, Hugo Grotius wrote that they “arise from our love of the innocent.”[37] Though it is most unlikely that such legal high-mindedness could ever factor into US President Joe Biden’s possible decision to encourage or initiate a war against Iran, it still remains a promising standard for Israel to bear continuously in mind. This will prove especially good advice if American military actions against Iran should sometime prod the Islamic Republic to “retaliate” against Israel.

More than ever before, the Middle East has become a complicated “neighborhood.” To wit, overlapping Arab-Israel and Iran-Israel hostilities are rapidly changing variants of Sunni-Shia rivalries, including an irremediably core geo-political struggle between “Shia Crescent” and Sunni-Crescent (Salafi/Deobandi) countries. While Israel and the United States continue to have overriding common strategic interests, it remains altogether likely that certain upcoming resorts to military force by Washington could “tie the hands” of relevant policy-makers in Jerusalem. Whether witting or unwitting, any such American “tying” could sometime place Israel in existential peril,[38] This would become markedly true as soon as Iran had crossed the nuclear weapons threshold.

               What is to be done? Above all, the United States must take care to keep Israel “in the loop” wherever possible and Israel must make a reciprocal effort to stay fully informed about America’s regional foreign policy orientations. In this connection, greater subtlety will have to be applied by Israeli assessments than was displayed during the Trump Era. As a still-inconspicuous example, the net effect of the Trump-brokered Abraham Accords could prove sorely negative for Israel. Though these agreements might first have seemed gainful to Israel prima facie, they actually have no tangible bearing on Israel’s core security problems. Simultaneously, the Abraham Accords antagonize and marginalize Iran, a destabilizing effect that can’t possibly prove helpful to Israel.

               Going forward, the United States will inevitably find itself embroiled in various crisis relationships with Iran. To best protect itself from any unwanted collateral consequences, US ally Israel should continue to refine its intellect-based policies of deterrence, both conventional and nuclear.[39] More precisely, to optimize its presumed nuclear deterrent, Jerusalem/Tel Aviv should finally confront the rapidly disappearing advantages of “nuclear ambiguity,”[40] thereby acknowledging that the Jewish state is now able to calibrate a nuclear response to any particular level of military threat.[41] Prima facie, such an acknowledgment would serve not only Israel’s strategic obligations, but its complementary jurisprudential ones as well.[42]

               For Israel, in all pertinent matters, strategy and law must go hand in hand. Yet, even under optimal conditions regarding stable nuclear deterrence, the United States could suddenly find itself in extremis atomicum. The very same steps needed to maximize a credible American deterrence posture could simultaneously enlarge the likelihood of inadvertent nuclear war.[43] For Israel and the United States, one core imperative ought never be minimized or disregarded:

“Be careful what you wish for!”

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[1] See https://www.atlanticcouncil.org/in-depth-research-reports/issue-brief/trumps-jcpoa-withdrawal-two-years-on-maximum-pressure-minimum-outcomes/

[2] On deterring a prospectively nuclear Iran, see Louis René Beres and General John T. Chain, “Could Israel Safely deter a Nuclear Iran? The Atlantic, August 2012; Professor Louis René Beres and General John T. Chain, “Israel; and Iran at the Eleventh Hour,” Oxford University Press (OUP Blog), February 23, 2012; and Beres/Chain: Israel: https://besacenter.org/living-iran-israels-strategic-imperative-2/  General Jack Chain (USAF) was Commander-in-Chief, U.S. Strategic Air Command (CINCSAC), from 1986 to 1991.

[3]From the standpoint of international law, it is always necessary to distinguish preemptive attacks from “preventive ones.” Preemption is a military strategy of striking an enemy first in the expectation that the only alternative is to be struck first oneself.  A preemptive attack is launched by a state that believes enemy forces are about to attack.  A preventive attack is launched not out of genuine concern about “imminent” hostilities, but rather for fear of a longer-term deterioration in a pertinent military balance.  Hence, in a preemptive attack, the length of time by which the enemy’s action is anticipated is very short, while in a preventive strike the interval is considerably longer. A problem for Israel, in this regard, is not only the practical difficulty of determining imminence, but also that delaying a defensive strike until appropriately ascertained imminence is acknowledged, could prove fatal.

[4] See: https://www.icj-cij.org/en/statute

[5] For early scholarly examinations of anticipatory self-defense, by this author, and with particular reference to Israel, see:  Louis René Beres,  “Preserving the Third Temple:  Israel’s Right of Anticipatory Self-Defense Under International Law,”  Vanderbilt Journal of Transnational Law,  Vol. 26,  No. 1,  April 1993,  pp. 111- 148;  Louis René Beres,  “After the Gulf War:  Israel, Preemption and Anticipatory Self-Defense,”  Houston Journal of International Law, Vol. 13,  No. 2,  Spring 1991,  pp. 259 – 280;  and Louis René Beres,  “Striking `First’: Israel’s Post-Gulf War Options Under International Law,” Loyola of Los Angeles International and Comparative Law Journal  Vol. 14,  Nov. 1991,  pp. 1 – 24.

[6] The obvious Israeli precedents for any preemptive moves would be Operation Opera directed against the Osiraq (Iraqi) nuclear reactor on June 7, 1981, and, later (though lesser known) Operation Orchard, against Syria on September 6, 2007. In April 2011, the U.N.’s International Atomic Energy Agency (IAEA) confirmed that the bombed Syrian site in the Deir ez-Zoe region of Syria had indeed been a developing nuclear reactor. Both preemptions were arguably lawful assertions of Israel’s “Begin Doctrine.”

[7]See:  https://law.justia.com/cases/federal/district-courts/FSupp/517/542/2386834/

[8] Regarding specific effects of US nuclear strategy on security matters in the Middle East, by this author, see: Louis René Beres: https://besacenter.org/wp-content/uploads/2019/07/162-MONOGRAPH-Beres-Israeli-Nuclear-Deterrence-CORRECTED-NEW.pdf

[9] See https://www.state.gov/the-abraham-accords/ Also to be considered as complementary to these agreements are the Israel-Sudan Normalization Agreement (October 23, 2020) and the Israel-Morocco Normalization Agreement (December 10, 2020).

[10] Under international law, the question of whether or not a condition of war actually exists between states is often left unclear.  Traditionally, a “formal” war was said to exist only after a state had issued a formal declaration of war.  The Hague Convention III codified this position in 1907.  This Convention provided that hostilities must not commence without “previous and explicit warning” in the form of a declaration of war or an ultimatum.  See Hague Convention III on the Opening of Hostilities, Oct. 18, 1907, art. 1, 36 Stat. 2277, 205 Consol. T.S. 263.  Presently, a declaration of  war could be tantamount to a declaration of criminality because international law prohibits “aggression.” See Treaty Providing for the Renunciation of War as an Instrument of National Policy, Aug. 27, 1948, art. 1, 46 Stat.  2343, 94 L.N.T.S.  57 (also called Pact of Paris or Kellogg-Briand Pact); Nuremberg Judgment, 1 I.M.T.  Trial of the Major War Criminals 171 (1947), portions reprinted in Burns H. Weston, et. al., INTERNATIONAL LAW AND WORLD ORDER  148, 159 (1980); U.N. Charter, art. 2(4).  A state may compromise its own legal position by announcing formal declarations of war.  It follows that a state of belligerency may exist without formal declarations, but only if there exists an armed conflict between two or more states and/or at least one of these states considers itself “at war.”

[11] Israel’s anti-missile defense shield has four overlapping layers: The Iron Dome system for intercepting short-range rockets; David’s Sling for medium-range rockets; Arrow-2 against intermediate-range ballistic missiles; and Arrow-3 for deployment against ICBM’s and (potentially) satellites.

[12] On the probable consequences of nuclear war fighting by this author, see: Louis René Beres, Surviving Amid Chaos: Israel’s Nuclear Strategy (Rowman & Littlefield, 2016; 2nd. ed., 2018); Louis René Beres, Apocalypse: Nuclear Catastrophe in World Politics (Chicago: University of Chicago Press, 1980); Louis René Beres, Mimicking Sisyphus: America’s Countervailing Nuclear Strategy (Lexington MA:  Lexington Books, 1983); Louis René Beres, Reason and Realpolitik: US Foreign Policy and World Order (Lexington MA; Lexington Books, 1984); and Louis René Beres, ed., Security or Armageddon: Israel’s Nuclear Strategy (Lexington MA:  Lexington Books, 1986).

[13] Israel’s presumptive nuclear deterrence posture depends upon several separate but still-intersecting factors. Most important are the country’s significant weapons, infrastructures and missile defense capabilities. Less conspicuously urgent, but still important, are the defining structures of world politics. These structures include the fundamentally anarchic system created after the 1648 Peace of Westphalia (“The State System”) and also (though plainly more transient or temporary) US-Russian superpower rivalry. The carefully detailed essay that follows focuses critically-needed attention on the latter set of explanatory factors, one associated with “Cold War II.” To plan ahead optimally, Israel’s designated strategists should pay increasing attention to this particular expression of geo-political “context.” These strategists will also have to look more closely than usual within pertinent decision-making structures of the United States. This is because (1) America is experiencing steadily expanding levels of intra-national cultural incoherence, epidemic and disorder, and (2) such levels will have major inter-national implications.

[14] The legal problem of reprisal as a permissible rationale for the use of force by states is identified and explained in the U.N. Declaration of Principles of International Law Concerning Friendly Relations and Co-operation among States (1970) (https://cil.nus.edu.sg/wp-content/uploads/formidable/18/1970-Declaration-on-Principles-of-International-Law-Concerning-Friendly-Relations.pdf)  Additionally, a possible prohibition of reprisals is deducible from the broad regulation of force expressed in the UN Charter at Article 2(4); the obligation to settle disputes peacefully at Article 2(3); and the general limiting of permissible force (codified and customary) by states to necessary self-defense.

[15] In authoritative studies of world politics, rationality and irrationality have taken on very precise meanings. A state is presumed to be rational to the extent that its leadership always values national survival more highly than any other conceivable preference or combination of preferences. Conversely, an irrational state is one that would not always display such a markedly specific preference ordering. On expressly pragmatic or operational grounds, ascertaining whether a particular state adversary such as Iran would be rational or irrational could easily become an overwhelmingly daunting task.

[16] No state on earth, including Israel, is under any per se legal obligation to renounce access to nuclear weapons; in certain distinctly residual circumstances, moreover, even the actual resort to such weapons could be presumed lawful. See generally The Legality of the Threat or Use of Force of Nuclear Weapons, Advisory Opinion, 1997 I.C.J. (July 8). The final paragraph of this Opinion, concludes, inter alia: “The threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law. However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defense, in which the very survival of a State would be at stake.”

[17] “Everything is very simple in war,” says Clausewitz, in his classical discussion of “friction” in On War, “but the simplest thing is difficult.” Herein, this concept refers to the unpredictable effects of errors in knowledge and information concerning intra-Israel (IDF/MOD) strategic uncertainties; on Israeli and Iranian under-estimations or over-estimations of relative power position; and on the unalterably vast and largely irremediable differences between theories of deterrence, and enemy intent “as it actually is.” See: Carl von Clausewitz, “Uber das Leben und den Charakter von Scharnhorst,” Historisch-politische Zeitschrift, 1 (1832); cited in Barry D. Watts, Clausewitzian Friction and Future War, McNair Paper No. 52, October, 1996, Institute for National Strategic Studies, National Defense University Washington, D.C. p. 9.

[18] For the crime of aggression under international law, see: Resolution on the Definition of Aggression, adopted by the UN General Assembly, Dec. 14, 1974. U.N.G.A. Res. 3314 (XXIX), 29 UN GAOR, Supp (No. 31), 142, UN Doc A/9631 (1975) reprinted in 13 I.L.M., 710 (1974).

[19] In law, states must judge every use of force twice: once with regard to the underlying right to wage war (jus ad bellum) and once with regard to the means used in actually conducting war (jus in bello). Following the Kellogg-Briand Pact of 1928 and the United Nations Charter, there can be absolutely no right to aggressive war. However, the long-standing customary right of post-attack self-defense remains codified at Article 51 of the UN Charter. Similarly, subject to conformance, inter alia, with jus in bello criteria, certain instances of humanitarian intervention and collective security operations may also be consistent with jus ad bellum. The law of war, the rules of jus in bello, comprise: (1) laws on weapons; (2) laws on warfare; and (3) humanitarian rules. Codified primarily at The Hague and Geneva Conventions, these rules attempt to bring discrimination, proportionality and military necessity into all belligerent calculations.

[20] See, by this author: Louis René Beres: https://harvardnsj.org/2015/06/core-synergies-in-israels-strategic-planning-when-the-adversarial-whole-is-greater-than-the-sum-of-its-parts/

[21] Apropos of Hobbes’ argument that the state of nature is worse among individuals than among states, the philosopher Spinoza suggested that “…a commonwealth can guard itself against being subjugated by another, as a man in the state of nature cannot do.” See: A.G. Wernham, ed., The Political Works, Tractatus Politicus, iii, II; Clarendon Press, 1958, p. 295.

[22] Here it also ought to be recalled that North Korea once helped Syria build a nuclear reactor, the same facility that was later destroyed by Israel in its Operation Orchard, on September 6, 2007. Unlike earlier Operation Opera (June 7, 1981) this preemptive attack, in the Deir ez-Zor region, was presumptively a second expression of the so-called “Begin Doctrine.” It also illustrated, because of the North Korea-Syria connection, a wider globalthreat to Israel in particular.

[23] At the same time, we cannot be allowed to forget that theoretical fruitfulness must be achieved at some more-or-less tangible cost of “dehumanization.”  As Goethe reminds us is Urfaust, the original Faust fragment: “All theory, dear friend, is grey, And the golden tree of life is green.” Translated here by the author, from the German: “Grau, theurer Freund, ist alle Theorie, Und grun des Lebens goldner Baum.”

[24] Under international law, terrorist movements (of which Jihadist groups are a current manifestation) are always Hostes humani generis, or “Common enemies of mankind.” See: Research in International Law: Draft Convention on Jurisdiction with Respect to Crime, 29 AM J. INT’L L. (Supp 1935) 435, 566 (quoting King marsh (1615), 3 Bulstr. 27, 81 Eng. Rep 23 (1615) (“a pirate est Hostes humani generis”)).

[25] See, by this author: Louis René Beres: https://www.jurist.org/commentary/2017/07/louis-beres-palestine-fiction/

For earlier and original writings by this author on the prospective impact of a Palestinian state on Israeli nuclear deterrence and Israeli nuclear strategy, see: Louis René Beres, “Security Threats and Effective Remedies: Israel’s Strategic, Tactical and Legal Options,” Ariel Center for Policy Research (Israel), ACPR Policy Paper No. 102, April 2000, 110 pp; Louis René Beres, “After the `Peace Process:’ Israel, Palestine, and Regional Nuclear War,” DICKINSON JOURNAL OF INTERNATIONAL LAW, Vol. 15, No. 2., Winter 1997, pp. 301-335; Louis René Beres, “Limits of Nuclear Deterrence: The Strategic Risks and Dangers to Israel of False Hope,” ARMED FORCES AND SOCIETY, Vol. 23., No. 4., Summer 1997, pp. 539-568; Louis René Beres, “Getting Beyond Nuclear Deterrence: Israel, Intelligence and False Hope,” INTERNATIONAL JOURNAL OF INTELLIGENCE AND COUNTERINTELLIGENCE, Vol. 10., No. 1., Spring 1997, pp. 75-90; Louis René Beres, “On Living in a Bad Neighborhood: The Informed Argument for Israeli Nuclear Weapons,” POLITICAL CROSSROADS, Vol. 5., Nos. 1/2, 1997, pp. 143-157; Louis René Beres, “Facing the Apocalypse: Israel and the `Peace Process,'” BTZEDEK: THE JOURNAL OF RESPONSIBLE JEWISH COMMENTARY (Israel), Vol. 1., No. 3., Fall/Winter 1997, pp. 32-35; Louis René Beres and (Ambassador) Zalman Shoval, “Why Golan Demilitarization Would Not Work,” STRATEGIC REVIEW, Vol. XXIV, No. 1., Winter 1996, pp. 75-76; Louis René Beres, “Implications of a Palestinian State for Israeli Security and Nuclear War: A Jurisprudential Assessment,” DICKINSON JOURNAL OF INTERNATIONAL LAW, Vol. 17., No. 2., 1999, pp. 229-286; Louis René Beres, “A Palestinian State and Israel’s Nuclear Strategy,” CROSSROADS: AN INTERNATIONAL SOCIO-POLITICAL JOURNAL, No. 31, 1991, pp. 97-104; Louis René Beres, “The Question of Palestine and Israel’s Nuclear Strategy,” THE POLITICAL QUARTERLY, Vol. 62, No. 4., October-December 1991, pp. 451-460; Louis René Beres, “Israel, Palestine and Regional Nuclear War,” BULLETIN OF PEACE PROPOSALS, Vol. 22., No. 2., June 1991, pp. 227-234; Louis René Beres, “A Palestinian State: Implications for Israel’s Security and the Possibility of Nuclear War,” BULLETIN OF THE JERUSALEM INSTITUTE FOR WESTERN DEFENCE  (Israel), Vol. 4., Bulletin No, 3., October 1991, pp. 3-10; Louis René Beres, ISRAELI SECURITY AND NUCLEAR WEAPONS, PSIS Occasional Papers, No. 1/1990, Graduate Institute of International Studies, Geneva, Switzerland, 40 pp; and Louis René Beres, “After the Gulf War: Israel, Palestine and the Risk of Nuclear War in the Middle East,” STRATEGIC REVIEW, Vol. XIX, No. 4., Fall 1991, pp. 48-55.

[26] Modern philosophic origins of “will” are discoverable in the writings of Arthur Schopenhauer, especially The World as Will and Idea (1818). For his own inspiration, Schopenhauer drew freely upon Johann Wolfgang von Goethe. Later, Nietzsche drew just as freely and perhaps more importantly upon Schopenhauer. Goethe was also a core intellectual source for Spanish existentialist Jose Ortega y’Gasset, author of the singularly prophetic twentieth-century work, The Revolt of the Masses (Le Rebelion de las Masas;1930). See, accordingly, Ortega’s very grand essay, “In Search of Goethe from Within” (1932), written for Die Neue Rundschau of Berlin on the centenary of Goethe’s death. It is reprinted in Ortega’s anthology, The Dehumanization of Art (1948) and is available from Princeton University Press (1968).

[27] See Louis René Beres, “After the Vienna Agreement: Could Israel and a Nuclear

Iran Coexist?” IPS Publications, Institute for Policy and Strategy, IDC Herzliya,

Israel, September, 2015 See also:   https://www.idc.ac.il/he/research/ips/Documents/iran/LouisReneBeres-Iran2014.pdf

[28] International law remains in essence a “vigilante” system, sometimes also called a “Westphalian” system. Such history-based reference is to the Peace of Westphalia (1648), which concluded the Thirty Years War and created the now still-existing self-help “state system.” See: Treaty of Peace of Munster, Oct. 1648, 1 Consol. T.S. 271; and Treaty of Peace of Osnabruck, Oct. 1648, 1., Consol. T.S. 119, Together, these two treaties comprise the Peace of Westphalia.

[29] Such a “life-saving” preemption option could be entirely permissible under international law. Known jurisprudentially as anticipatory self-defense, this potentially lawful option can be found not in conventional law (art. 51 of the UN Charter supports only post-attack expressions of individual or collective self-defense), but in customary international law. The most precise origins of anticipatory self-defense in customary law lie in the Caroline, a case that concerned the unsuccessful rebellion of 1837 in Upper Canada against British rule. Following this case, the serious threat of armed attack has generally justified certain militarily defensive actions. 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 that did not require an antecedent attack. Here, the jurisprudential framework permitted a military response to a threat so long as the danger posed was “instant, overwhelming, leaving no choice of means, and no moment for deliberation.” See: Beth M. Polebaum, “National Self-defense in International Law: An Emerging Standard for a Nuclear Age,” 59 N.Y.U.L. Rev. 187, 190-91 (1984) (noting that the Caroline case had transformed the right of self-defense from an excuse for armed intervention into a legal doctrine). Still earlier, see: Hugo Grotius, Of the Causes of War, and First of Self-Defense, and Defense of Our Property, reprinted in 2 Classics of International Law, 168-75 (Carnegie Endowment Trust, 1925) (1625); and Emmerich de Vattel, The Right of Self-Protection and the Effects of the Sovereignty and Independence of Nations, reprinted in 3 Classics of International Law, 130 (Carnegie Endowment Trust, 1916) (1758). Also, Samuel Pufendorf, The Two Books on the Duty of Man and Citizen According to Natural Law, 32 (Frank Gardner Moore., tr., 1927 (1682).

[30] Professor Louis René Beres was Chair of Project Daniel (PM Sharon) in 2003-2004. The rationale of Project Daniel was to examine the developing Iranian nuclear threat and to make pertinent suggestions about minimizing this threat.  See: http://www.acpr.org.il/ENGLISH-NATIV/03-ISSUE/daniel-3.htm

[31] Historically, preemption has figured importantly in Israeli strategic calculations.  This was most glaringly apparent in the wars of 1956 and 1967 and in the destruction of the Iraqi nuclear reactor in 1981 and later the Syrian facility.  It was essentially the failure to preempt in October 1973 that contributed to heavy Israeli losses on the Egyptian and Syrian fronts during the Yom Kippur war, and almost brought about an Israeli defeat.  Back during January, May, and October 2013, Israel, understandably apprehensive about Damascus’ supply of military materials to Syria’s Hezbollah surrogates in Lebanon, preemptively struck selected hard targets within Syria. For an informed jurisprudential assessment of these undeclared but still-appropriate expressions of anticipatory self-defense, by this author, see: Louis René Beres, “Striking Hezbollah-Bound Weapons in Syria: Israel’s Actions Under International Law,” Harvard National Security Journal, Harvard Law School, posted August 26, 2013.

[32] The term “dialectic” originates from the Greek expression for the art of conversation. A common contemporary meaning is method of seeking truth by correct reasoning. From the standpoint of shaping Israel’s strategy  vis-à-vis Iran, the following operations could be regarded as essential but nonexclusive components: (1)  a method of refutation conducted by examining logical consequences; (2) a method of division or repeated logical analysis of genera into species; (3) logical reasoning using premises that are probable or generally accepted; (4) formal logic; and (5) the logical development of thought through thesis and antithesis to fruitful synthesis of these opposites.

[33] The de facto condition of Hobbesian anarchy within which Israel must make its pertinent assessments and calibrations stands in stark contrast to the legal assumption of solidarity between states. In essence, this idealized assumption concerns a presumptively common struggle against both aggression and terrorism. Such a “peremptory” expectation, known formally in law as a jus cogens assumption, was already mentioned in Justinian, Corpus Juris Civilis (533 CE); Hugo Grotius, 2 De Jure Belli ac Pacis Libri Tres, Ch. 20 (Francis W. Kesey., tr, Clarendon Press, 1925) (1690); and Emmerich de Vattel, 1 Le Droit Des Gens, Ch. 19 (1758).

[34] See, by this author: Louis René Beres: https://www.israeldefense.co.il/en/node/28931

[35] Some supporters of a Palestinian state argue that its prospective harms to Israel could be reduced or even eliminated by ensuring that new Arab state’s immediate “demilitarization.” For informed reasoning against this argument, see: Louis René Beres and (Ambassador) Zalman Shoval, “Why a Demilitarized Palestinian State Would Not Remain Demilitarized: A View Under International Law,” Temple International and Comparative Law Journal, Winter 1998, pp. 347-363; and Louis René Beres and Ambassador Shoval, “On Demilitarizing a Palestinian `Entity’ and the Golan Heights: An International Law Perspective,” Vanderbilt Journal of Transnational Law, Vo. 28., No.5., November 1995, pp. 959-972.

[36] See: Merrill D. Peterson, The Political Writings of Thomas Jefferson, Monticello Monograph Series, Thomas Jefferson Memorial Foundation, 1993, p. 115.

[37] See Hugo Grotius, The Law of War and Peace 70 (William Whewell, tr.), London: John W. Parker, 1853(1625).

[38] Much has been written concerning Israel’s irremediably limited strategic depth. This core security issue was addressed as early as June 29, 1967, when a US Joint Chiefs of Staff memorandum specified that returning Israel to pre-1967 boundaries would drastically increase its existential vulnerabilities. The JCS Chairman, General Earl Wheeler, then concluded that merely for minimal deterrence and defense, Israel should retain Sharm el-Sheikh and Wadi El Girali in the Sinai; the Gaza Strip (entire); the high ground and plateaus of the mountains in Judea and Samaria (West Bank); and the Golan Heights, east of Quneitra.

[39] Notes Guillaume Apollinaire, “It must not be forgotten that it is perhaps more dangerous for a nation to allow itself to be conquered intellectually than by arms.” See this poet’s The New Spirit and the Poets (1917). See also, Professor Beres with Ambassador Zalman Shoval: (Pentagon): https://mwi.usma.edu/creating-seamless-strategic-deterrent-israel-case-study/

[40] See, by Professor Beres, “Changing Direction: Updating Israel’s Nuclear Doctrine,” Strategic Assessment, INSS (Israel), Vol. 17, No.3., October 2014: http://www.inss.org.il/uploadImages/systemFiles/adkan17_3ENG%20(3)_Beres.pdf   Earlier, by this author, see: Louis René Beres, “Changing Direction? Updating Israel’s Nuclear Doctrine,” INSS, Israel, Strategic Assessment, Vol. 17, No.3., October 2014, pp. 93-106. See also: Louis René Beres, Looking Ahead: Revising Israel’s Nuclear Ambiguity in the Middle East, Herzliya Conference Policy Paper, Herzliya Conference, March 11-14, 2013 (Herzliya, Israel); Louis René Beres and Leon “Bud” Edney, Admiral  (USN/ret.) “Facing a Nuclear Iran, Israel Must Rethink its Nuclear Ambiguity,” U.S. News & World Report, February 11, 2013; 3pp; and Professor Louis René Beres and Admiral Leon “Bud” Edney,  “Reconsidering Israel’s Nuclear Posture,” The Jerusalem Post, October 14, 2013. Admiral Edney served as NATO Supreme Allied Commander, Atlantic (SACLANT).

[41] Elements of essential doctrine could sometimes prove counter-intuitive. For example, the likelihood of any actual nuclear conflict between states could be inversely related to the plausibly expected magnitude of catastrophic harms

[42] The law of war, the rules of jus in bello, comprise: (1) laws on weapons; (2) laws on warfare; and (3) humanitarian rules. Codified primarily at The Hague and Geneva Conventions, these rules attempt to bring discrimination, proportionality and military necessity into all belligerent calculations. Evidence for the rule of proportionality can also be found in the International Covenant on Civil and Political Rights (1966) at Art. 4. Similarly, the American Convention on Human Rights allows at Art. 27(1) such derogations “in time of war, public danger or other emergency which threaten the independence or security of a party” on “condition of proportionality.” In essence, the military principle of proportionality requires that the amount of destruction permitted must be proportionate to the importance of the objective. In contrast, the political principle of proportionality states “a war cannot be just unless the evil that can reasonably be expected to ensure from the war is less than the evil that can reasonably be expected to ensue if the war is not fought.” See Douglas P. Lackey, THE ETHICS OF WAR AND PEACE, 40 (1989). modified only by a subsequent norm of general international law having the same character.” See: Vienna Convention on the Law of Treaties, Done at Vienna, May 23, 1969. Entered into force, Jan. 27, 1980. U.N. Doc. A/CONF. 39/27 at 289 (1969), 1155 U.N.T.S. 331, reprinted in 8 I.L.M.  679 (1969).

[43] On 27 July 2921, US President Joseph Biden opined that the foreseeably greatest risk of a nuclear war would be as the result of cyber-terrorism or hacking. See: https://finance.yahoo.com/news/biden-warns-real-shooting-war-003405801.html