Abstract: Eleventh-hour diplomacy notwithstanding, few tangible barriers remain in the way of an Iranian nuclear capability. If Israel should decide that it no longer maintains any reasonable self-defense alternative to launching selective military attacks against Iranian hard targets, those preemptive strikes would need to be justified in both strategic andlegal terms. In this article, Professor Louis René Beres, who was Chair of Project Daniel (Israel, PM Sharon, 2003),[i] analyzes Israel’s residual options, including a peremptory national right to act in “anticipatory self-defense” against a determinednear-nuclear adversary (in this case, a state that had previously expressed genocidal intentions[ii]).
Though identifiable legal rules can allow imperiled states to strike first in self-defense when the dangers posed are prospectively existential and “imminent in point of time,” the permissible parameters for any such strike would need to be clarified. Below, Professor Beres, focusing upon the relevant, binding and intersecting rules of “Justice of War” (Jus ad bellum) and “Justice in War” (Jus in bello), (1) explains if and when Israel could lawfully resort to acts of anticipatory self-defense and (2) considers what such presumptively indispensable attacks might actually look like. The author further considers assorted and more-or-less plausible military alternatives to anticipatory self-defense, especially long-term strategies of nuclear deterrence.[iii]
All considerations by Professor Beres are presented from the expressly analytic standpoints of law and strategy. In no circumstances should such assessments ever be interpreted as necessarily derivative recommendations for any general or specific Israeli preemption. In reading and assessing this comprehensive argument, the policy-centered reader should bear in mind that any Israeli defensive military strike ought always to remain a last-resort security option. Also to be borne in mind is that world politics always operates as a system; accordingly, nuclear weapons-related developments in other parts of the world could tangibly affect the prospects of a nuclear conflict in the Middle East. A current example would center on the growing geo-strategic standoff between Russia and the United States regarding future intermediate range nuclear forces (INF) deployments in Europe.
“Where there is no common Power, there is no Law.”-Thomas Hobbes, Leviathan (1651), Chapter XIII
Strategic Decision-Making in the Global “State of Nature”
In setting the stage for a coherent understanding of world politics, Thomas Hobbes’ Leviathan argues that there can be no law in any “state of nature.” A more accurate assessment would stipulate that law and anarchy can coexist, but that decentralized law enforcement[iv] has traditionally had to rely upon “self-help.”[v] Moreover, within this condition of continuous decentralization[vi] – a bellum omnium contra omnes or “war of all against all” – international law[vii] necessarily represents a “vigilante” system of global power management.[viii] And as the “safety of the people” must always represent “the highest law” (per Cicero, De republica/The Republic), global rules can never call upon nation-states to accept their own destruction.
That is the “big picture.” Additionally, there are abundant details to consider. Though pertinent and codified norms do not normally allow states to strike first in self-defense, the law of nations does permit particular acts of “anticipatory self-defense” under customary international law.[ix] It follows that in certain in extremis circumstances, defensive first strikes or “preemption” could be considered permissible.
Simultaneously, legal and strategic criteria always remain logically separate or discrete. Even if a resort to anticipatory self-defense could sometime be deemed lawful, it could still prove unreasonably dangerous or tangibly ineffectual.
What are the salient implications of these facts for Israel, a nuclear mini-state imperiled by a still-nuclearizing Iran? To begin, before Israel could ever decide rationally on invoking a strategy of preemption, its designated policy makers and strategists would first need to assess this strategy according to the twin criteria of appraisal: law and strategy. For a currently-appropriate example, Israel could sometime calculate that a preemptive strike against appropriately hard Iranian targets (i.e., Iranian weapons/weapon infrastructures) would prove convincingly legal, but still not “work” as a damage-limiting strategic measure.
There is more. Whatever the decisional outcomes, Israeli judgments concerning expected probability of success would all be subjective. By definition, because the circumstances in question would be sui generis, there could be no objective or scientific assessments of this probability.
Ultimately, this point is important to understand. But why? In essence, there could exist no pertinent previous events for Israeli decision-makers to draw upon. The “rules” in such matters are clear and unassailable. In both logic and science, the task of advancing predictive statements about any event likelihood or probability can never be undertaken ex nihilo. Rather, they must be based upon the determinable frequency of relevant past events.
This meaningful assertion is not subject to informed contradictions. After all, in such daunting matters, there have been no properly pertinent past events. Israel did launch preemptive strikes against prospective nuclear targets in Iraq and Syria (1981 and 2007 respectively), but in neither case did these defensive measures potentially involve any existential retaliatory consequences.
Presently,, while Iran is not yet operationally nuclear,[x] that country does maintain a conspicuous capacity to aggregate significant military operations against Israel.[xi] This capacity includes variously intersecting proxy assaults by Tehran’s Shiite militia surrogate, Hezbollah.[xii] In principle, such intersecting strikes could also be synergistic; that is, the “whole” of any expectedly destructive effects would actually be greater than the calculable sum of its constituent “parts.”
Foreseeable Implications of Time-Delay
For Israel, one danger of “waiting too long” is that Tehran could implement protective measures that would then pose additional military hazards.[xiii] Deigned to guard against an Israeli preemption, such measures could involve the attachment of “hair trigger” launch mechanisms to Iranian nuclear weapon systems and/or the adoption of “launch on warning” policies (these policies possibly coupled with variously fragile pre-delegations of launch authority.) All this enemy activity would signify certain still-increasing dangers to Israel, and would represent the result of steps taken by an already-nuclear Iran to prevent Israeli defensive-strikes.
Optimally, Israel, partially because of corollary risks of accidental or unauthorized attacks launched against its armaments and/or civilian populations, would do everything possible to prevent such enemy measures. Still, if such steps were ever to become a fait accompli, Jerusalem might calculate that a preemptive strike would be lawful and gainful. This precarious calculus would obtain because the expected Iranian retaliation, however damaging, might still appear more tolerable than the plausibly expected consequences of any Iranian first-strikes.
Inter alia, going forward, Israel must take into very careful account the various prospects of an Iranian enemy equipped with hypersonic weapons and also the corollary difficulties of defending against such weapons with “ordinary” forms of ballistic missile defense. Depending upon the determinable velocity and capabilities of such enemy prospects (hypersonic missiles travel at least five times the speed of sound), even Israel’s impressively capable Arrow system of layered active defenses could sometime be reduced in life-saving effectiveness or be defeated altogether.
The tangible consequences of any such reduction would vary considerably according to whether the adversarial hypersonic missile(s) had been armed with nuclear or non-nuclear warheads.
There are more-or-less pertinent attendant hazards. For example, a space-based system of defenses against hypersonic missile attack would have “leakage.” This liability might prove tolerable contra enemy conventional warheads, but not against a determined enemy’s nuclear armed missiles. Plausibly, at least for now, this “determined enemy” would necessarily be Iran.
There is more. What about “peremptory” legal standards? In principle, at least, any such last resort tactics of self-defensive force[xiv] could be both lawful and law-enforcing. In Jewish-historical terms, the First Temple and Commonwealth were destroyed by the Babylonians in 586 BC/BCE. The Second Temple Commonwealth ended with a total Roman victory in the year 70 AD/CE.[xv] In its present political and jurisprudentially-recognized form, which began in 1948,[xvi] Israel will last only as long as its leaders remain aptly attentive to Cicero’s primal warning about national “safety.”
“The safety of the People shall be the highest law.” Though seemingly counter-intuitive, such attentiveness could be indispensable and still consistent with the authoritative expectations of relevant international law.[xvii]
International law is never a suicide pact. At some point, Israel’s existential security problems[xviii] with Iran[xix] could compel Jerusalem to decide between waiting for Tehran to strike first[xx] and striking first itself. Judged from a strategic and tactical perspective, the choice of a preemption option could sometime appear rational and calculably cost-effective,[xxi] yet prove to be the result of erroneous information, miscalculation and/or self-deception.
Israel’s Residual Task: Calculating a Defensive First Strike
What does the ascertainable convergence of strategic and jurisprudential assessments of preemption say about Israel’s prospective calculations on striking first? It should suggest, among other things, that Israel need not be deterred from undertaking appropriately defensive forms of preemption solely out of fear that its actions would be described as criminal.[xxii] Although a substantial number of nation-states would likely condemn Israel for “aggression”[xxiii] under any circumstances, this particular charge – so long as Israel’s preemptive strikes were to meet the expectations of jus ad bellum (justice of war) and jus in bello (justice in war)[xxiv] – could be countered authoritatively and effectively by international law.
In complex jurisprudence, as in certain other matters, history deserves 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.[xxv] 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.”[xxvi] Or, as he explains a bit further on in the same chapter, “It be lawful to kill him who is preparing to kill….”[xxvii]
A similar position was taken by legal philosopher 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.”[xxviii]
Appropriately, in view of present concerns, Grotius[xxix] and Vattel parallel the Jewish interpreters, although the latter speak more generally of interpersonal relations than of 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 words of the rabbis, “If a man comes to slay you, forestall by slaying him!” (Rashi; Sanhedrin 72a).
Both Grotius and Vattel caution against abusing the right of anticipatory self defense as a pretext for aggression;[xxx] nonetheless, this is an abuse that Israel, in its current formal relationship with Iran, could not plausibly commit. As Iran seemingly considers itself in a “state of war” with Israel,[xxxi] any Israeli preemption against this nuclearizing adversary would not represent an authentic act of anticipatory self-defense, but only one more military operation in an ongoing and protracted war. It follows, in these circumstances, that such an operation’s legality[xxxii] would have to be appraised solely in terms of its conformance with the authoritative laws of war of international law (Jus in bello).[xxxiii]
To identify any defensive military operation as “aggression” when it is launched only against a state that considers itself “at war” with Israel would be jurisprudential nonsense.[xxxiv]
Israeli Preemption as Law-Enforcing Self-Defense
Even if Iran were not in a verifiably formal condition of belligerence Israel, a condition amplified by Teheran’s recurrent calls for Israel’s destruction,[xxxv] Jerusalem’s preemptive action could still be law-enforcing. Israel, in the fashion of absolutely every state in world politics, is peremptorily entitled to existential self-defense. Today especially, in an age of increasingly destructive weaponry, international law does not require Israel or any other state to expose its citizens to otherwise-avoidable atomic annihilation.[xxxvi]
Prima facie, the right of national self-defense, we may 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.[xxxvii]
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).[xxxviii] Following this landmark event, even the serious threat of armed attack can be taken to justify a fearful state’s militarily defensive action. Then, 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.[xxxix] In this case, 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.”[xl]
In limited and residual circumstances, certain 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 the tyrannicide motif).[xli] Representing either a distinct alternative or an addition to standard military forms of preemption, such targeted killing,[xlii] in order to be consistent with authoritative international norms/expectations, would need to be undertaken when the danger posed to Israel met the specific legal test of the Caroline. If the targeted killings were undertaken only to destroy the potential threat of a designated enemy, i.e., as a preventive action, it could 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 couldconceivably qualify as a correct instance of anticipatory self-defense.[xliii]
Several antecedent questions should now arise. First, in the “real world,” judgments concerning the immediacy of anticipated aggression are exceedingly difficult to calculate. Second, even where such judgments are reasonably ventured, it can never by 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 per the Caroline is “instant, overwhelming, leaving no choice of means and no moment for deliberation.”
Some scholars argue impressively 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.[xliv] 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 particular 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.[xlv]
Again, says Cicero: “The safety of the people shall be the highest law.”
There is more. The clarifying arguments against a more restrictive view of self-defense are reinforced by variously evident weaknesses of the U.N. Security Council regarding collective security operations against an aggressor. Significantly, both the Security Council and the General Assembly refused to censure Israel for its 1967 preemptive attack against certain belligerent Arab states. Among other things, this refusal signified implicit approval by the United Nations of Israel’s 1967 resort to anticipatory self defense.[xlvi]
Before Israel could argue persuasively for any future instances of anticipatory self defense under international law, a strong case should first be made that Jerusalem had sought to exhaust all available remedies of peaceful settlement. Even a very broad view of anticipatory self-defense can never relieve any state of its peremptory obligations codified at Article 1 and at Article 2(3) of the UN Charter.[xlvii] Strictly speaking, these obligations ought not necessarily be binding upon Israel because of the de facto condition of belligerency sustained by Iran,[xlviii] but the global community seems generally to have ignored this “state of war.” It follows that if Israel should ever decide to undertake militarily preemptive measures against Iran, it would be well advised to demonstrate its own consistent and comprehensive prior efforts at peaceful dispute settlement.
In part, the origins of any such advice could have verifiable 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….[xlix]
Looking over the many years of conflict between Israel and certain Arab states, Israel has generally defended its resorts to military force as measures of self help short of war. For the most part, such legal defense has had the effect of shifting the burden of jurisprudential responsibility for lawful behavior from the Arab states to Israel – an unreasonable shift, because it focuses blame unfairly upon the Jewish state. On occasion, Israel has also had to identify its resorts to military force as “reprisals,” thereby choosing a conspicuously problematic concept under international law.[l]
Israel and the Lawful Right of Reprisal
Under the prevailing Charter system of international law, the right of reprisal is normally contingent upon linked obligations of presumptive self-defense.[li] So long as it chooses to ignore or downplay the declared condition of war announced by certain of its enemies as grounds for different legal justifications for resort to armed force,[lii] Israel would be well-advised to confine its legal rationale for all its military operations to “self-defense.”
There is more. Genocide is a word with very precise jurisprudential meaning. Codified at the Genocide Convention, a treaty [liii] 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….”[liv] The key to understanding and identifying genocide lies in the phrase, “intent to destroy.”
Today, more-or-less plainly, Iran prepares for an eventual war with Israel, one it seemingly hopes will send the Jewish State into oblivion. This is much more than a matter of negotiating stance or heated rhetoric. Tehran’s ongoing nuclear preparations are plausibly designed with the “intent to destroy” Israel altogether.[lv]
Such “intent” is substantially more tangible than a matter of perceived geopolitical necessity. It is, in essence, a profoundly religious expectation. In Islam, the Prophet is said to have called for a Final Battle to annihilate the Jews. “The Hour,” [salvation] Mohammed is reported to have said, “will not come until you fight against the Jews; and the stone would say, `O Muslim! There is a Jew behind me; come and kill him.'”[lvi]
Outside of non-Arab Iran, open support in the Arab world for genocide against “the Jews” remains a matter of historical record. Even before creation of the State of Israel, such support was displayed enthusiastically and unambiguously 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 essential, 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.”[lvii]
Palestinians and Arab states have never publicly criticized the Mufti’s complicity in the Holocaust. During the 1950s and 1960s, Hitler remained an enormously popular figure in the Arab world. Responses in this world to the Eichmann trial in Jerusalem (1961) treated the Nazi mass murderer as a “martyr,” and congratulated him often for having “conferred a real blessing on humanity” by enacting a “final solution.”[lviii]
Overall, the complex security situation is fraught not only with unprecedented danger,[lix] 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.[lx]
Israeli Preemption and “Palestine”
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, Israel might not be able to hold out for as long as was possible when Palestine was still just an “authority.”
It is plausible that a post-Palestine shift in nuclear strategy from deliberate ambiguity to disclosure[lxi] 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.[lxii]
Several corollary problems must also be considered. First, how would Israel’s leadershipactually 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. For example, 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 unbelievable to threaten such reprisals for relatively minor territorial infringements or terrorist incursions.[lxiii]
There are other prospective problems. To function successfully, Israel’s deterrent, even after being removed from the “basement,” would have to be secure from enemy preemptive strikes. Israel must also be 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 effectively 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 long-term expectations for Iranian vulnerability. Should Israel’s leaders conclude that the creation of Palestine would make another major war more-or-less inevitable, and that, over time, Iranian vulnerability to Israel would diminish, Jerusalem’s inclination to strike first could be increased. To a certain extent, Israel’stactical judgments on preemption will be affected by antecedent decisions on nuclear strategy, namely decisions concerning “countervalue” vs. “counterforce” objectives. Should it opt for nuclear deterrence based on assured destruction or counter value posture, Jerusalem would likely choose a small number of weapons that might be inaccurate.
A Counter-force or Counter-value Nuclear Strategy
As opposed to a counter-value posture, an Israeli counter-force strategy would require a larger number of more accurate weapons, ordnance that could destroy even the most hardened Iranian targets. To a certain extent, “going for counterforce” could also make Israeli nuclear threats more credible. This argument is based on the assumption that because the effects of such war-fighting weapons would be more precise and better controlled, they would also be more amenable to actual use.[lxiv]
Of course, though this particular trade-off would likely enhance Israel’s nuclear deterrence posture, it would also likely enlarge the risks of a nuclear war ipso facto.
War-fighting enemy postures are apt to encourage an Israeli preemption. And if counterforce targeted nuclear weapons are ever fired, especially in a more proliferated regional setting, the resultant escalation could still produce extensive countervalue exchanges. Even if such escalation were averted, the so-called “collateral” effects of counterforce detonations could still prove devastating.
In making its nuclear choices, Israel will have to confront a paradox. Credible nuclear deterrence,[lxv] essential to security and survival in a world made more dangerous by the creation of Palestine,[lxvi] would require “usable” nuclear weapons. If, after all, these weapons were obviously inappropriate for any reasonable objective, they would not deter.
At the same time, the more usable the weapons become in order to enhance nuclear deterrence, the more likely it is, at one time or another, that they will actually be fired. While this paradox would seem to suggest the rationality of deploying the least-harmful forms of usable nuclear weapons, the likelihood that there would be no coordinated agreements with Iran on deployable nuclear weapons points to a very different conclusion: Unless Israel calculates that the more harmful weapons would produce greater hazards for its own population as well as for target state Iran, there would exist no tactical benefit to opting for the least injurious usable weapons.[lxvii]
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.[lxviii] Under these sorely 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.[lxix]
Creation of a fully sovereign Palestine could have dramatic effects on Israel’s decision concerning anticipatory self-defense. And Israel’s nuclear weapons status and strategy would likely influence this decision. More precisely, should Jerusalem determine that Israel’s nuclear weapons would support preemption by deterring hostile target states from retaliating, this status would encourage Israeli first strikes. If, on the other hand, Jerusalem were to calculate that these target states would be unimpressed by threats of Israeli nuclear counter-retaliation, this status would likely not encourage Israeli defensive first strikes.
Could the precise form of Israel’s nuclear strategy make a difference in these circumstances? Relying upon nuclear weapons not to deter enemy first strikes, but to support its own preemptive attacks, Israel would have to choose between continued ambiguity (implicit threats) and disclosure (explicit threats). How should it choose?[lxx]
Deciding on Israel’s “Bomb in the Basement”
More than anything else, the answer lies in Jerusalem’s confidence that its adversaries already acknowledge Israel’s nuclear capability. Should this confidence be high, as one should expect, there could be compelling valid reason to take the bomb out of the “basement.” If, however, such confidence were low, the move to disclosure would be rational, especially because: 1) the provocation occasioned by the end of deliberate ambiguity would be unimportant after the onset of Israeli first strikes, and 2) a critical reaction by the United States would be less significant for Israel in the “Cold War II” strategic environment.[lxxi]
On its face, the fall of Afghanistan has had no verifiably direct connections to Israel’s national security. Nonetheless, the overwhelming defeat of its American patron in that region could have significant “spillover effects.” Most plausible, in this consequence, will 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 expanding power for the already-nuclear Islamic state of Pakistan). This last result will 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, indeed, all over the world, there is very good reason to assume that Israel’s nuclear arsenal is more than merely presumptive, that it does exist and that Israel’s enemies share this vital assumption. The most critical current questions about Israel’s nuclear deterrent, however, are not about capability, but willingness. In brief, how likely is it that Israel, after launching non-nuclear preemptive strikes against enemy hard targets, would respond to enemy reprisals with a nuclear counter-retaliation?
To answer this bewildering question, Israel’s decision-makers would first have to put themselves into the shoes of various enemy leaders. Will these leaders calculate that they can afford to retaliate against Israel, i.e., that such retaliation would not produce nuclear counter-retaliation? In asking this question, they would assume a non-nuclear retaliation against Israel. A nuclear retaliation, should it become technically possible, would quite plainly invite a nuclear counter-retaliatory blow.
What should they conclude? This depends, in turn, upon these decision-makers’ view of Iranian reciprocal judgments about 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 intolerable levels of harm and destruction?
Depending upon the way in which the enemy decision-makers interpret Israel’s authoritative perceptions, they will accept or reject the cost-effectiveness of a non-nuclear retaliation against Israel. This means that it is in Israel’s best interest to communicate the following strategic assumption to its enemies: Israel would be acting rationally by responding to enemy non-nuclear reprisals to Israeli preemptive attacks with a nuclear counter-retaliation. The plausibility of this assumption could be enhanced considerably if enemy reprisals were to involve chemical and/or biological weapons.
Rationality and Non-Rationality in Strategic Decision-Making
Among other things, all such 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 remain only a matter of conjecture. Significantly, the prospect of non-rational judgments[lxxii] in the region is always plausible, especially as the influence of Islamist/Jihadist ideology remains determinative among pertinent Iranian decisional elites.
To the extent that Israel might one day believe itself confronted with non-rational enemies, particularly ones with highly destructive weapons in their arsenals, its incentive to preempt could become overwhelming. In fact, should such enemies be believed to hold nuclear weapons,[lxxiii] Israel might even decide, quite rationally, to launch a nuclear preemption against these enemy weapons. This would appear to be the only calculable circumstance in which a rational Israeli preemptive strike could be nuclear.
Israel’s enemies should understand from all this that there are conditions wherein Jerusalem might decide to actually use its nuclear weapons.[lxxiv] These conditions concern the intolerable prospect of total defeat.[lxxv] Faced with imminent destruction of the state, Israel’s leaders would almost certainly do whatever is needed to survive, including resort to nuclear retaliation, nuclear counter-retaliation, nuclear preemption, or nuclear war-fighting.[lxxvi]
Understanding Nuclear War Risks
What, exactly, would a nuclear war “mean”?[lxxvii] In essence, even the most limited nuclear war would signal catastrophe.[lxxviii] Plainly, “only” the immediate effects of atomic explosion, thermal radiation, nuclear radiation, and blast damage would create intolerably wide swaths of death and devastation. In many instances, observers could remember the macabre early warnings of theorist Herman Kahn in Thinking about the Unthinkable (1962): “The survivors would envy the dead.”
Ex hypothesi, victims would suffer flash and flame burns. Retinal burns could occur in the eyes of persons at distances of several hundred miles from the explosion. People could be crushed by collapsing buildings or torn by flying glass. Others would fall victim to raging firestorms and conflagrations. Fall-out injuries would include whole-body radiation injury, produced by penetrating, hard gamma radiation, superficial radiation burns produced by soft radiations, and injuries produced by deposits of radioactive substances within the body.
In the aftermath, medical facilities that might still exist would be stressed beyond endurance. Water supplies could become unusable as a result of all-out contamination. Housing and shelter could be unavailable for survivors. Transportation and communication could break down to almost prehistoric levels. Overwhelming food shortages could become the rule for at least several years.
Since the countries involved would have entered into war as modern industrial economies, their networks of highly interlocking and interdependent exchange systems might now be shattered. Emergency fire and police services could be decimated altogether. Systems dependent upon electrical power might cease to function. Severe trauma would occasion widespread disorientation and psychological disorders for which there might be no therapeutic services.
With the passage of time, many of the survivors could expect an increased incidence of degenerative diseases, and various kinds of cancer. They might also expect premature death, impairment of vision, and a high probability of sterility. Among the survivors of Hiroshima, for example, an increased incidence of leukemia and cancer of the lung, stomach, breast, ovary, and uterine cervix had been widely documented.[lxxix]
None of this is meant to suggest that an Israeli defensive first-strike would necessarily give rise to a nuclear war. In certain conceivable circumstances, Israel’s resort to a non-nuclear preemption might even represent the optimal way to prevent nuclear war.
Plus ca change, plus c’est la même chose. “The more things change, the more they remain the same.” Despite herculean steps to preserve the “Third Temple Commonwealth,” the current State of Israel remains subject to variously grave threats of harm.[lxxx] This state, notwithstanding international law’s formal presumption of juridical solidarity between states,[lxxxi] could sometime still have to face a fully nuclear Iran.
To prevent such a fearful prospect, Israel could sometime decide to resort to the jurisprudential protections afforded by anticipatory self-defense under international law. Mediating between tangible survival and expanding chaos, these protections could offer Israel a residual opportunity to confront threatening force with measured force, not to gratuitously initiate war, but only to prevent oblivion. Though in the best of all possible worlds such preemptive strategies would be unnecessary and hence illegal, this isnot yet such a world.
There is more. As long as Israel’s expression of anticipatory self-defense had been prompted by imminent dangers of considerable magnitude and was executed in conformance with authoritative expectations of discrimination, proportionality, and military necessity,[lxxxii] the preemption option could remain manifestly lawful. Prima facie, of course, such lawfulness would not automatically imply any corresponding strategic benefits. Authoritative judgments of legality and expected efficacy should remain discrete and analytically distinct.
A passage in the Odyssey speaks of two gates, one of horn and the other of ivory. Through the ivory gate, false dreams pass to humankind, and through the gate of horn go only the true and prophetic dreams. At this particular moment in its always precarious history, Israel may find itself tempted by the ivory gate, this choosing to base preservation of the state upon fanciful visions of national security. Far better for Israel to pass instead through the gate of horn, preparing, if need be, to use military force selectively and preemptively, but also to employ such force as a presumptively more suitable means of deterrence. Occasioning more-or-less pain in the short run, any such passage would base preservation of Israel upon appropriately sober assessments of Realpolitik,[lxxxiii] and would simultaneously affirm, rather than reject, the normative obligations of international law.
Israeli Diplomacy and Ballistic Missile Defense at the Eleventh Hour
Realistic defensive actions by Israel against Iran may not necessarily require any actual resort to anticipatory self-defense. As diplomatic negotiations have developed over time, there is intermittent faith, in certain circles, that Iran can be turned away from its still-advancing nuclear weapons program, possibly in exchange for a steady loosening of sanctions. Whether or not such faith is justifiable, Jerusalem will now need to clarify and enhance its nuclear deterrence policy, with special attention to codifying and maintaining a recognizably survivable and penetration-capable strategic retaliatory force.
It will also be important to enhance Israel’s ballistic missile defenses, namely the Arrow, and to convincingly communicate to Tehran that Israeli nuclear forces are (1) usable; and (2) would be used as a complement (not as an alternative) to BMD interceptions. Among other things, this communication should include a very selective and partial end to Israel’s “deliberate nuclear ambiguity,” or “bomb in the basement.” As for Cicero’s warning of the existential obligations to use national force in a world of primal rancor and violence, Israeli strategists would be well-advised to shape their final recommendations in line with a capable and antecedent scholar
To best prevent a regional nuclear war, especially as Iran will likely continue to approach full and effectively irreversible membership in the “nuclear club,” Israel will need to field a dependable nuclear deterrent. At the same time, it cannot properly rely exclusively upon this one necessary basis of national security doctrine any more than it can depend solely upon conventional deterrence. It must depend, instead, upon increasingly complementary nuclear/conventional forces and doctrine, appropriately intersecting systems of anti-missile defenses, and even the residual availability of certain eleventh-hour preemption options.
Even now, when the expected costs of any preemption against Iran could already be unacceptably high, Israel should not disavow absolutely all last-resort options for anticipatory self-defense. By definition, there might still be some eventually recognizable consequences of not-preempting that are expectedly greater than the foreseeable costs of a properly focused preemption.[lxxxiv]
In the volatile Middle East, strategic deterrence is a “game” that sane national leaders may have to play, but it ought always to be a game of strategy, not merely chance. In Jerusalem, this means, among other things, a continuing willingness to respect the full range of relevant doctrinal complexity – both its own military doctrines, and those of its pertinent enemies – and a willingness to forge ahead with appropriate and reciprocally complex security policies. Inevitably, to successfully influence the choices that prospectively fearsome adversaries could make vis-à-vis Israel, Jerusalem will first need to clarify unambiguously that (a) its conventional and nuclear deterrence are seamlessly intersecting, and that (b) Israel stands ready to counter enemy attacks at every conceivable level of possible military confrontation.
There still remain some important and related inferences.
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 its relevant enemies. In those residual cases where decisional rationality appears implausible, Jerusalem could find itself under considerable pressure to strike preemptively. If Jerusalem’s expected responses were to be judged rational in themselves, they might then need to include a conclusive and operationally-reliable option for anticipatory self-defense. For Israel, it goes without saying that regional conflict prospects should be curtailed at the very lowest possible levels of controlled engagement, and should be governed by defensible considerations of “military necessity.”[lxxxv] Under no circumstances should Israel ever need to find itself having to preempt against an already nuclear adversary.[lxxxvi]
To prevent such unacceptable but still imaginable circumstances should represent Jerusalem’s absolutely overriding security obligation.[lxxxvii]
There is more. Even the most meticulous plans for preventing a deliberately-inflicted nuclear conflict would not automatically remove all attendant dangers of an inadvertent or accidental nuclear war. While an accidental nuclear war would necessarily be inadvertent, there are certain forms of inadvertent nuclear war that would not necessarily be caused by mechanical, electrical or computer accident. These particular but still-consequential forms of unintentional nuclear conflict could represent the unexpected result of sheer misjudgment or simple miscalculation, whether created as a singular error by one or both sides to a particular (two-party) nuclear crisis escalation; or by certain still unforeseen “synergies”[lxxxviii] arising between such singular miscalculations.
Israel’s Growing Challenge: Relentless Unpredictability
It follows from such “obiter dicta” that the only predictable aspect of a forthcoming nuclear crisis involving Israel would be its unpredictability. This ironic conclusion implies an insistent Israeli obligation to be comprehensively vigilant about enemy capabilities/intentions and suitably cautious about Jerusalem’s capacity to manage existential challenges. Though Iran is not yet nuclear, it remains conceivable that a major security crisis with that country could sometime involve the threat or use ofIsrael’s nuclear armaments. The tangible results of such involvement would depend in part on the precise extent of any prior Israeli nuclear disclosure. In more precise strategic terminology, such results would take into account any previous removal of Israel’s “bomb” from the country’s “basement.”
There is more. Israel, though partially misled by variously contrived promises of the “Abraham Accords,” is now entering a period of cascading uncertainties. While its national leaders and still-new prime minister may prefer to suggest that national security matters are actually “looking up” – that is, that the expected benefits of these Trump-brokered Accords and corollary normalization agreements signed with Sudan and Morocco[lxxxix] will outweigh all relevant risks – such optimistic suggestions would likely prove exaggerated.
Soon, Israel could confront a far less auspicious strategic reality.
Even if US President Joseph Biden should succeed in bringing the United States back into seemingly viable JCPOA-type arrangements, the Trump-accelerated harms of Iranian nuclearization are unlikely to be halted or reversed. Inter alia, this conclusion signifies an invariant Israeli obligation to fashion continuously self-refining strategies of nuclear deterrence/nuclear war avoidance. Such strategies should themselves be firmly rooted in antecedent nuclear doctrine.[xc]
In the end,[xci] genuinely persuasive forms of Israeli power, whether expressed as anticipatory self-defense or as military deterrence, must reflect “the triumph of mind over mind,” not just “mind over matter.”[xcii] Ultimately, Israel’s most compelling forms of influence will derive not from the barrel of a gun or missile warhead, but from the less conspicuous advantages of intellectual power. Such advantages would be indispensable, and should be explored and compared according to two very specific criteria of pertinent assessment: law and strategy.
In certain circumstances, these always-complex expectations would not be congruent or helpfully “in synch” with each other, but fully contradictory or diametrically opposed. Here, underlying “mind over mind” challenges to Israel could become excruciatingly difficult. Nonetheless, successful Israeli decision-making could still be kept in plain sight and remain sufficiently plausible.
What will be required will be an aptly far-reaching Israeli appreciation of decisional complexity and, correspondingly, a willingness to approach intersecting issues from the standpoint of capable intellectual analysis. For Israel, as for the United States, there should be no acceptable place for shallow political theatre or empty political witticism.[xciii] In the best of all possible worlds there would be no need for any considerations of preemption/anticipatory self-defense,[xciv] but such a rational and harmonious world remains a long way off.[xcv]
In the meantime, what is most urgently important is that all states act to maximize their own presumed best interests without wittingly or unwittingly exposing other states to grievous harms.
For Israel, the prime inheritor of Genesis, global chaos augurs severe and paradoxical kinds of fragility.[xcvi] Potentially, as a continuously beleaguered microstate, Israel could sometime become the principal victim of rampant regional disorder. In view of the far-reaching interrelatedness of all world politics – everything here is “system” – this victimization could arise even if the tangibly precipitating events of war or terror were to occur in other places.
Oddly enough, a triumphant global chaoscould still reveal both sense and form. For example, generated by mutually reinforcing explosions of mega-war and mega-terror, any further disintegrations of world authority could assume a discernible and revealing shape. But what then? How should such a unique shape, such a sobering “geometry of chaos,” be optimally deciphered in Jerusalem? What should Israeli decision-makers do if confronted with circumstances wherein the already-complex expectations of law and strategy are seemingly contradictory?[xcvii]
Significantly, these are never simply political questions. Instead, they are always questions of “mind.” In the final analysis, it is always on this primary intellectual dimension of evaluation that many-sided nuclear policy queries should be answered. When for narrowly political reasons, former US President Donald J. Trump withdrew the United States from the 2015 JCPOA Iran agreement, his Israeli and American supporters were able to convince themselves that no agreement at all was preferable to an imperfect agreement. Ironically, the palpable and far-reaching result of such determined anti-reason was a more threatening Iran and a less secure Israel.
Unsurprisingly, if striking first against Iran should soon become a more presumptively necessary Israeli option, it could be because Jerusalem had earlier aligned itself with a viscerally anti-intellectual and irrational US foreign policy.[xcviii]
“Spill-Over” from Accelerated Superpower Arms Racing
There remains one final observation concerning relevant international interactions in world and regional systems. In one such foreseeable interaction, the destabilizing effects of an accelerating US-Russia arms race could “spill over” to another global region, that is, to the Middle East. Even more specifically, in any such worrisome scenario, variously still-growing disagreements between Washington and Moscow concerning intermediate nuclear force deployments in Europe could spark a nuclear confrontation or actual nuclear exchange.
Though not directly related to Israel or Iran, certain systemic elements of either outcome (nuclear confrontation or nuclear conflict) could tangibly lower the plausible threshold of a nuclear engagement in the Middle East. Should these systemic interactions prove synergistic – interactions where the “whole” discoverable effect would be greater than the sum of its “parts” – such lowering could also be dramatic and far-reaching.
For designated Israeli decision-makers, the “bottom line” is this: In figuring optimal defense strategies vis-à-vis a steadily nuclearizing Iran – strategies that are both cost-effective and compliant with international law – Jerusalem’s analytic attention should be directed beyond the Middle East. Here, for strategic planning purposes, the entire world should be continuously monitored and reliably understood as a system.
Strategic interactions between Israel and Iran should never be analyzed in vacuo. In our persistently Hobbesian “state of nature,”[xcix] superpower arms racing could substantially impact Iranian nuclear weapons development and corresponding Israeli responses. Whatever the calculable particulars of any such presumed impact, the overriding strategic and jurisprudential watchword for Israel should remain constant.
This guiding terminology must always be Intellect or Mind; never Politics.
[i] See, by Louis Rene Beres (ACPR: Israel): http://www.acpr.org.il/ENGLISH-NATIV/03-issue/daniel-3.htm
[ii] Under international law, war and genocide need not be mutually exclusive. On this point, see: Louis René Beres, “Iran’s Strategic Threat to Israel: Nuclear War as Genocide in the Middle East,” The Jerusalem Post, June 8, 2014.
[iii]Regarding Israeli nuclear deterrence of non-nuclear enemy attacks, see, by this author: Louis René Beres, https://moderndiplomacy.eu/2021/09/12/can-israeli-nuclear-threats-protect-against-non-nuclear-attacks/ See also, by Louis René Beres at JURIST: https://www.jurist.org/commentary/2021/10/louis-rene-beres-israel-preemption-self-defense/
[iv] In the context of world politics, Thomas Hobbes comments in Chapter XIII of Leviathan: “But though there had never been any time wherein particular men were in a condition of war (“nature”), one against another, yet in all times, Kings and Persons of Sovereign authority, because of their independency, are in continual jealousies, and in the state and posture of Gladiators, having their weapons pointing….”
[v] See Thomas Hobbes, Leviathan, Chapter XIII. Though the 17th century English philosopher notes that the “state of nations” is in the always-anarchic condition of “war,” that condition is still more tolerable than that of individuals coexisting in nature. With these individual human beings, he instructs, “…the weakest has strength enough to kill the strongest.” Now, however, with the continuing advent of nuclear weapons, a circumstance clearly unforeseen by Hobbes, there is no persuasive reason to believe that the “state of nations” remains more tolerable. Nuclear weapons are bringing the state of nations closer to a true Hobbesian state of nature. See, in this connection, David P. Gauthier, The Logic of Leviathan: The Moral and Political Theory of Thomas Hobbes (Oxford: Oxford University Press, 1969), p. 207. Similar to Hobbes, German philosopher Samuel Pufendorf argues that the state of nations is “not as intolerable” as the state of nature between individuals. The state of nations, reasoned the German jurist, “lacks those inconveniences which are attendant upon a pure state of nature….” Baruch Spinoza also 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.
[vi] 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).
[vii] International law remains a “vigilante” system, 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.
[viii] This concept underlies the present author’s first published book on these security-centered issues: Louis René Beres, The Management of World Power: A Theoretical Analysis, University of Denver, 1973.
[ix] See Article 38 (1)(b) of the UN Statute of the International Court of Justice, which defines international custom as “evidence of a general practice accepted as law.” (June 29, 1945, 59 Stat. 1031, T.S. 993. The essential significance of a norm’s customary character is that the norms bind even those states that are not parties to a pertinent codification. Even where a customary norm and a norm restated in treaty form are apparently identical, these norms are treated as jurisprudentially discrete (See Military and Paramilitary Activities (Nicaragua vs. US), 1986, I.C.J., 14, 85 (June 27) (Merits).
[x]On deterring an already nuclear or soon-to-be nuclear Iran, see Professor 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.
[xi] In law, these military operations could sometimes constitute “crimes against humanity.” For authoritative definition of such crimes, See AGREEMENT FOR THE PROSECUTION AND PUNISHMENT OF THE MAJOR WAR CRIMINALS OF THE EUROPEAN AXIS POWERS AND CHARTER OF THE INTERNATIONAL MILITARY TRIBUNAL. Done at London, August 8, 1945. Entered into force, August 8, 1945. For the United States, Sept. 10, 1945. 59 Stat. 1544, 82 U.N.T.S. 279. The principles of international law recognized by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal were affirmed by the U.N. General Assembly as AFFIRMATION OF THE PRINCIPLES OF INTERNATIONAL LAW RECOGNIZED BY THE CHARTER OF THE NUREMBERG TRIBUNAL. Adopted by the U.N. General Assembly, Dec. 11, 1946. U.N.G.A. Res. 95 (I), U.N. Doc. A/236 (1946), at 1144. This AFFIRMATION OF THE PRINCIPLES OF INTERNATIONAL LAW RECOGNIZED BY THE CHARTER OF THE NUREMBERG TRIBUNAL (1946) was followed by General Assembly Resolution 177 (II), adopted November 21, 1947, directing the U.N. International Law Commission to “(a) Formulate the principles of international law recognized in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal, and (b) Prepare a draft code of offenses against the peace and security of mankind….” (See U.N. Doc. A/519, p. 112). The principles formulated are known as the PRINCIPLES OF INTERNATIONAL LAW RECOGNIZED IN THE CHARTER AND JUDGMENT OF THE NUREMBERG TRIBUNAL. Report of the International Law Commission, 2nd session, 1950, U.N. G.A.O.R. 5th session, Supp. No. 12, A/1316, p. 11.
[xii] Professor Beres’ earliest published warnings on preempting Iranian nuclearization go back toLouis René Beres, “Israel, Force and International Law: Assessing
Anticipatory Self-Defense,” The Jerusalem Journal of International Relations, June 1991.
[xiii] See, by this author, Louis René Beres, at Military Strategy Magazine: https://www.militarystrategymagazine.com/article/israels-nuclear-posture-intellectual-antecedents-and-doctrinal-foundations/
8 The right of self-defense is a peremptory or jus cogens norm under international law. According to Article 53 of the Vienna Convention on the Law of Treaties: “…a peremptory norm of general international law is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be 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).
[xvi] The declaration of the State of Israel was made on May 14, 1948, by members of the People’s Council – the parliamentary body of the “state in process.”
[xvii] International law is partially educible from natural law.
According to Blackstone, this is the reason that the law of nations is binding upon all individuals and all states. Each state and its leaders are always expected “to aid and enforce the law of nations, as part of the common law, by inflicting an adequate punishment upon offenses against that universal law….” See 2 William Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND, Book 4, “Of Public Wrongs.”
[xviii]. For much earlier analyses of these problems, by this author, see: Louis René Beres, “Israeli Security and Self-Reliance After the Cold War: Geopolitical Imperatives, Strategic Considerations and Tactical Options,” delivered at the international scholarly conference, SECURITY REGIMES–ISRAEL AND ITS NEIGHBORS, Bar-Ilan Center for Strategic Studies, June 3, 1992; Louis René Beres, “The Real Bases of Middle East Instability,” MIDSTREAM, Vol. XXXVIII, No. 5, June-July 1992, pp. 9-10; Louis René Beres, “After the Scud Attacks: Israel, `Palestine,’ and Anticipatory Self-Defense,” EMORY INTERNATIONAL LAW REVIEW, Vol. 6, No. 1, Spring 1992, pp. 71-104; 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; Louis René Beres, “Israeli Security in a Changing World,” STRATEGIC REVIEW, Vol. XVIII, No. 4, Fall 1990, pp. 11-22; “The Growing Threat of Nuclear War in the Middle East,” THE JERUSALEM JOURNAL OF INTERNATIONAL RELATIONS, Vol. 12, No. 1, 1990, pp. 1-27; and ISRAELI SECURITY AND NUCLEAR WEAPONS, The Graduate Institute of International Studies, Programme For Strategic and International Security Studies, Geneva, Switzerland; Occasional Paper No. 1/1990, 4O pp. See also: Gerald M. Steinberg, “The Middle East in the Missile Age,” ISSUES IN SCIENCE AND TECHNOLOGY, Vol. V, No. 4, Summer 1989, pp. 35-40, reprinted in IDF JOURNAL, Israeli Ministry of Defense, No. 19, Winter 1990, pp. 30-36; Shlomo Gazit & Zeev Eytan, THE MIDDLE EAST MILITARY BALANCE, 1988-1989, The Jaffee Center for Strategic Studies, Westview Press, 1989, 400 pp; Aharon Levran, “Threats Facing Israel From Surface-to-Surface Missiles, “IDF JOURNAL, No. 19, Winter 1990, 37-44; and “Moving in the Right Direction,” an interview with the then Defense Minister, Yitzhak Rabin, in ISRAELI DEMOCRACY, Fall 1989, pp. 12-15.
[xix].Iran has become a presumptively unique danger to Israel. This is because that Islamic state displays both the requisite capabilities (including unconventional weapons) and intentions vis-à-vis the Jewish State. Regarding intentions, Iran has expressed an apparent obligation to destroy Israel, an obligation that is founded not in tangible political differences (which are merely epiphenomenal) but upon a theological anti-Judaism. (See for example Ayatollah Khomeini’s “Program for the Establishment of an Islamic Government,” 1970, which is still very much valid today: ISLAM AND REVOLUTION: WRITINGS AND DECLARATIONS OF IMAM KHOMEINI, Berkeley, 1981, p. 127; see also Robert S. Wistrich, ANTISEMITISM: THE LONGEST HATRED, New York, Pantheon Books, 1991, p. 219.) As for peace with Israel, this can be nothing less than a poison threatening the life-blood of Islam. According to al-Da’wa (the Mission), a fundamentalist publication, the status of the Jew, and therefore of Israel, is clear and unambiguous: “The race (sic.) is corrupt at the root, full of duplicity, and the Muslims have everything to lose in seeking to deal with them; they must be exterminated.” (See Gilles Kepel, THE PROPHET AND PHARAOH: MUSLIM EXTREMISM IN EGYPT, London, 1985, p. 112.)
[xx].Should Israel decide to wait for its Iranian enemies to strike first, the Jewish States would likely maintain its traditional stance of disproportionately severe reactions to aggression, reactions that represent an ironic inversion of the Jewish Lex Talionis. The Jewish law of exact retaliation–of “an eye for an eye, a tooth for a tooth”–is found in three separate passages of the Torah, or biblical Pentateuch. In contemporary international law, the principle of proportionality can be found in the traditional view that a state offended by another state’s use of force can, if the offending state refuses to make amends, take “proportionate” reprisals. (See Naulilaa Arbitration, 1928, 2 RIAA 1013; Air Services Agreement Arbitration, 1963, 16 RIAA 5; cited by Ingrid Detter De Lupis THE LAW OR WARD, Cambridge: Cambridge University Press, 1987, p. 75.) Evidence of the rule of proportionality can also be found in the United Nations Covenant on Civil and Political Rights of 1966 (Article 4). Similarly, the European Convention on Human Rights provides, at Article 15, that in time of war or other public emergency, contracting parties may derogate from the provisions, but only on the condition of rules of proportionality.
[xxi].Preemption has figured importantly in previous Israeli strategic calculations. This was apparent in the wars of 1956 and 1967, and also in the destruction of the Iraqi nuclear reactor in 1981. Significantly, 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. More recently, during January, May, and October 2013, Israel, understandably apprehensive about Damascus’ supply of military materials to Syria’s Hezbollah surrogates in Lebanon, preemptively struck pertinent hard targets within Syria itself. For a 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, Online, posted August 26, 2013.
[xxii] Nonetheless, Israel might also be constrained by strategic rather than narrowly jurisprudential considerations. In this connection, see: Amos Yadlin and Avner Golov, “If Attacked, How Would Iran Respond?” INSS Strategic Assessment, Vol. 16, No. 3, October 2013, pp. 7 – 21. See also: The Iran Project: Weighing Benefits and Costs of Military Action Against Iran, Woodrow Wilson Center, 2012. Maj.Gen (ret.) Amos Yadlin is a former Head of Israel’s Military Intelligence Directorate (Aman).
[xxiii] See especially: RESOLUTION ON THE DEFINITION OF AGGRESSION, Dec. 14, 1974, U.N.G.A. Res. 3314 (XXIX), 29 U.N. GAOR, Supp. (No. 31) 142, U.N. Doc. A/9631, 1975, reprinted in 13 I.L.M. 710, 1974; and CHARTER OF THE UNITED NATIONS, Art. 51. Done at San Francisco, June 26, 1945. Entered into force for the United States, Oct. 24, 1945, 59 Stat. 1031, T.S. No. 993, Bevans 1153, 1976, Y.B.U.N. 1043.
[xxiv].According to the rules of international law, every use of force must be judged twice: once with regard to the right to wage war (jus ad bellum), and once with regard to the means used in conducting war (jus in bello). Today, in the aftermath of the Kellogg-Briand Pact of 1928, and the United Nations Charter, all right to aggressive war has been abolished. However, the long-standing customary right of self-defense remains, codified at Article 51 of the 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 laws 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 (and known thereby as the law of The Hague and the law of Geneva), these rules attempt to bring discrimination, proportionality and military necessity into belligerent calculations.
[xxv].Chapter I “Of the Causes of War; and first of Self-Defense, and Defense of our Property,” (1625), bk. II, reprinted in CLASSICS OF INTERNATIONAL LAW, Vol. 2, 168-75, Carnegie Endowment tr. 1925.
[xxvi].Id. at 173-74.
11.Grotius’ terminology raises an interesting related question–that is, under what conditions, if any, might assassination be identified as a permissible form of anticipatory self-defense? Understood as tyrannicide, assassination has sometimes been accepted as lawful under international law (e.g., Aristotle’s POLITICS; Plutarch’s LIVES and Cicero’s DE OFFICIIS). The argument that the right of tyrannicide may even qualify as peremptory (jus cogens) derives from several authoritative sources of international law identified at Art. 38 of the Statute of the International Court of Justice (especially the “general principles of law recognized by civilized nations,” and “the teachings of the most highly qualified publicists of the various nations….”) and–by extrapolation–from the decentralized, state-centric or “Westphalian” system of international law. On this second foundation of the peremptory right to tyrannicide, because international law creates a binding human rights regime without effective and centralized enforcement mechanisms, support for this regime must, on occasion, require the use of force by individuals within states. In the absence of this particular form of self-help, the expectations established by the entire corpus of the international law of human rights could have no meaningful likelihood of satisfaction.
[xxviii].See Chapter IV, “The Right of Self-Protection and the Effects of the Sovereignty and Independence of Nations,” (1758), bk. II, reprinted in CLASSICS OF INTERNATIONAL LAW, Vol. 3, 130 Carnegie End. tr., 1916.
[xxix].Grotius cites Cicero’s observation (from the latter’s Defense of Milo) that: “…the act [of homicide] is not only just, but even necessary, when it represents the repulsion of violence by means of violence.” See COMMENTARY ON THE LAW OF PRIZE AND BOOTY, a tr. of the manuscript of 1604 by G.L. Williams, New York, Oceana Publications, Inc., 1964, p. 67.
[xxx].See, op. cit., RESOLUTION ON THE DEFINITION OF AGGRESSION. Adopted by the U.N. General Assembly, Dec. 14, 1974. U.N.G.A. Res. 3314 (XXIX), 29 U.N. GAOR, Supp. (No. 31) 142, U.N. Doc. A/9631 (1975), reprinted in 13 I.L.M. 710 (1974). For pertinent codifications of the criminalization of aggression, see also: The 1928 Kellogg-Briand Pact (Pact of Paris), Treaty Providing for the Renunciation of War as an Instrument of National Policy, Aug. 27, 1928, 46 Stat. 2343, T.S. No. 796, 94 U.N.T.S. 57; U.N. Charter Article 2 (4), Charter of the United Nations, Done at San Francisco, June 26, 1945. Entered into force, Oct. 24, 1945. 59 Stat. 1031, T.S. No. 993, 3 Bevans 1153, 1976 Y.B.U.N. 1043; the 1965 Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty, U.N.G.A. Res. 2131 (XX), 20 U.N. GAOR, Supp. (No. 14) 11, U.N. Doc. A/6014, (1966), reprinted in 5 I.L.M. 374 (1966); the 1970 U.N. General Assembly Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in accordance with the Charter of the United Nations, U.N. G.A. Res. 2625 (XXV), 25 U.N. GAOR Supp. (No. 28) at 121, U.N. Doc. A/8028 (1971); the 1972 Declaration on the Non-use of Force in International Relations and Permanent Prohibition on the Use of Nuclear Weapons, U.N.G.A. Res. 2936, 27 U.N. GAOR (Supp. (No. 30) at 5, U.N. Doc. A/8730 (1972); and the Charter of the International Military Tribunal, annex to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, art. 6, Aug. 8, 1945, 59 Stat. 1544, E.A.S. No. 472, 82 U.N.T.S. 279; Resolution Affirming the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal, U.N.G.A. Res. 95 (1), 1 U.N. GAOR at 1144, U.N. Doc. A/236 (1946). See also Convention on the Rights and Duties of States, Dec. 26, 1933, arts. 8, 10-11, 49 Stat. 3097, T.S. No. 881, 165 L.N.T.S. 19 (known generally as the “Montevideo Convention”); the Pact of the League of Arab States, March 22, 1945, art. 5, 70 U.N.T.S. 237; Charter of the Organization of American States, April 30, 1948, chs. II, IV, V, 2 U.S.T. 2394, T.I.A.S. No. 2361, 119 U.N.T.S. 3 and Protocol of Amendment, Feb. 27, 1967, 21 U.S.T. 607, T.I.A.S. No. 6847 (known generally as the “Protocol of Buenos Aires”); the Inter-American Treaty of Reciprocal Assistance, Sept. 2, 1947, 62 Stat. 1681., T.I.A.S. No. 1838, 121 U.N.T.S. 77 (known generally as the “Rio Pact”); the American Treaty on Pacific Settlement, April 30, 1948, 30 U.N.T.S. 55 (known generally as the “Pact of Bogota”); and the Charter of the Organization of African Unity, May 25, 1963, arts. II, III, 479 U.N.T.S. 39. For more on aggression, see DRAFT CODE OF CRIMES AGAINST THE PEACE AND SECURITY OF MANKIND. Adopted by the U.N. International Law Commission in 1954, 2 Y.B. Int’l L. Comm. 150 (1954); revised in 1987, 1988 and 1989. U.N. Doc. A/42/420 (1987), U.N. Doc. A/CN.4/404 (1987), U.N. Doc. A/43/539 (1988), U.N. Doc. A/CN.4/419 (1989), and U.N. Doc. A/44/150 (1989). See also DECLARATION ON THE RIGHT OF PEOPLES TO PEACE. Adopted by the U.N. General Assembly, Nov. 12, 1984. U.N.G.A. Res. 39/11/ Annex, 39 U.N. GAOR, Supp. (No. 51) 22, U.N. Doc. A/39/L.14 (1984).
[xxxi].The agreements that put an end to the first Arab-Israeli War (1947-1949) were general armistice agreements negotiated bilaterally between Israel and Egypt on February 24, 1949 (42 U.N.T.S. 251-70, 1949); Israel and Lebanon on March 23, 1949 (42 U.N.T.S. 287-98. 1949); Israel and Jordan on April 3, 1949 (42 U.N.T.S. 303-20, 1949); and Israel and Syria on July 20, 1949 (42 U.N.T.S. 327-40, 1949). Pursuant to these agreements, the Security Council, on August 11, 1949, issued a Resolution which, inter alia, “noted with satisfaction the several Armistice Agreements,” and “Finds that the Armistice Agreements constitute an important step toward the establishment of permanent peace in Palestine and considers that these agreements supersede the truce provided for in Security Council resolutions 50 (1948) of May 29, and 54 (1948) of July 15, 1948. (See SECURITY COUNCIL RESOLUTION NOTING THE ARMISTICE AGREEMENTS AND REAFFIRMING THE ORDER TO OBSERVE AN UNCONDITIONAL CEASE FIRE PENDING A FINAL PEACE SETTLEMENT, August 11, 1949, S.C. Res. 73, 1959, 4 U.N. SCOR, Resolutions and Decisions of the Security Council 1949, at 8, 1965, U.N. Doc. S/1376, II, 1949.) With the exceptions of Egypt and Jordan, neither of the other two aforelisted armistice agreements has been superseded by an authentic peace treaty. Still, neither Syria nor Lebanon per se remain existential threats to Israel. A general armistice is a war convention, an agreement or contract concluded between belligerents. Such an agreement does not result in the termination of a state of war. The 1907 Hague Convention IV Respecting the Laws and Customs of War on Land, stipulates, at the Annex to the Convention, that “An armistice suspends military operations by mutual agreement between the belligerent parties.” (Emphasis added: See CONVENTION NO. IV RESPECTING THE LAWS AND CUSTOMS OF WAR ON LAND, WITH ANNEX OF REGULATIONS. Done at The Hague, Oct. 18, 1907. Entered into force, Jan. 26, 1910. 36 Stat. 2277, T.S. No. 539, 1 Bevans 631, at Chapter V, Art. 36.) The courts of individual states have also affirmed the principle that an armistice does not end a war (See, for example, Kahn v. Anderson, Warden, United States, Supreme Court, 1921, 255, U.S. 1). Indeed, throughout history, armistices have normally envisaged a resumption of hostilities. It follows from this that since no treaties of peace obtain between Israel and the Arab states with which it negotiated armistice agreements in 1949, with the exceptions of Egypt and Jordan), a condition of belligerency continues to exist between these states and Israel. (For pertinent documents and commentary on Israel-Arab agreements, see Rosalyn Higgins, UNITED NATIONS PEACEKEEPING 1946-1967, I., The Middle East, New York: Oxford University Press, 1969, a study issued under the auspices of the Royal Institute of International Affairs.)
[xxxii].Regarding such legality in an ongoing war begun by another state, we may recall the opinion of Grotius in his COMMENTARY ON THE LAW OF PRIZE AND BOOTY: “…it is obvious that a just war can be waged in return, without recourse to judicial procedure, against an opponent who has begun an unjust war; nor will any declaration of that just war be required…. For as Aelian says, citing Plato as his authority–any war undertaken for the necessary repulsion of injury, is proclaimed not by a crier nor by a herald, but by the voice of Nature herself.” See H. Grotius, DE IURE PRAEDAE COMMENTARIUS, ed., by James Brown Scott, a translation of the original manuscript of 1604 by Gladys L. Williams, with the collaboration of Walter H. Zeydel, New York: Oceana Publications, Inc., 1964, p. 96.
[xxxiii].On the main corpus of jus in bello, see: Convention No. IV Respecting the Laws and Customs of War on Land, With Annex of Regulations, October 18, 1907. 36 Stat. 2277, T.S. No. 539, 1 Bevans 631 (known commonly as the “Hague Regulations:); Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Done at Geneva, Aug. 12, 1949. Entered into force, Oct. 21, 1950. 6 U.S.T. 3114, T.I.A.S. No. 3362, 75 U.N.T.S. 31; Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Done at Geneva, Aug. 12, 1949. Entered into force, Oct. 21, 1950. 6 U.S.T. 3217, T.I.A.S. No. 3363, 75 U.N.T.S. 85; Convention Relative to the Treatment of Prisoners of War. Done at Geneva, Aug. 12, 1949. Entered into force, Oct. 21, 1950. 6 U.S.T. 3316, T.I.A.S. No. 3364, 75 U.N.T.S. 135; Convention Relative to the Protection of Civilian Persons in Time of War. Done at Geneva, Aug. 12, 1949. Entered into force, Oct. 21, 1950. 6 U.S.T. 3516, T.I.A.S. No. 3365, 75 U.N.T.S. 287.
[xxxiv].Under international law, the generic question of whether or not a state of war actually exists between states may be somewhat ambiguous. Traditionally, it was held that a formal declaration of war was a necessary condition before “formal” war could be said to exist. Hugo Grotius, for example, divided wars into declared wars, which were legal, and undeclared wars, which were not. (See Grotius, THE LAW OF WAR AND PEACE, Bk. III, ch. iii, V and XI). By the beginning of the twentieth century, the position that war obtains only after a conclusive declaration of war by one of the parties, was codified by Hague Convention III. More precisely, this convention stipulated 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 Relative to the Opening of Hostilities, 1907, 3 NRGT, 3 series, 437, article 1.) Currently, of course, declaration of war may be tantamount to declarations of international criminality (because of the criminalization of aggression by authoritative international law), and it could be a jurisprudential absurdity to tie a state of war to formal declarations of belligerency. It follows that a state of war may exist without formal declarations, but only if there is an armed conflict between two or more states and/or at least one of these states considers itself at war. On the argument that war need not be formally recognized, see J. Pictet, IV Commentary, Geneva Convention Relative to the Protection of Civilian Persons in Time of War 20-1 (1958) (“no need for formal declaration of war, or for recognition of the existence of a state of war”); U.S. Dept. of Army FM 27-10, The Law of Land Warfare 7-8, paras. 8-9 (1956) (instances of armed conflict without declaration of war; law of war applies); The Prize Cases, 67 U.S. (2 Black) at 668 (“war may exist without a declaration on either side”); see also M. McDougal & F. Feliciano, LAW AND MINIMUM WORLD PUBLIC ORDER (1961), pp. 97-113 (legal status of war may be brought about by use of armed force).
[xxxv].At the beginning, Arab states generally regarded Israel as the institutionalized manifestation of multiple crimes, particularly colonialism, imperialism and aggression. Indeed, often denounced as “an instrument of evil” constructed “on a foundation of evil,” Israel is taken to be immutably criminal, irremediable, fit only for liquidation/extermination. (See, for example, the discussion of “The External Aspect: Aggression, Intrigues, Exploitation,” in Yehoshafat Harkabi, ARAB ATTITUDES TO ISRAEL, Jerusalem: Keter Publishing House Ltd., 1972, pp. 307-310). Today, the existential threat to Israel lies with non-Arab Iran, not the Arab states. Both formally and informally, Sunni Arab states are now effectively on the “same side” as Israel vis-à-vis Shiite Iran. The net effect of the Trump-brokered Abraham Accords on Israel’s security has been to “make peace” with states that were never active enemies (i.e., Bahrain, UAE, Sudan, Morocco) while irritating Tehran. Furthermore, by lining up certain Sunni Arab states as prospective “allies” against Shiite Iran, these Accords could sometime make an Egyptian and/or Saudi nuclear capability more plausible. In the Middle East, it is not invariably true that “the enemy of my enemy is my friend.”
[xxxvi].It is arguable, at least in principle, that an Israeli non-nuclear preemption could ultimately represent the best way to reduce the risks of a regional nuclear war. This argument would follow logically from the core assumption that if Israel waits too long for Iran to strike first, that enemy could sometime launch its own nuclear attacks. Significantly, even if Iran should sometime strike first with conventional weapons only, Israel might still have no rational damage-limiting alternative to launching a nuclear retaliation. To the extent that this is a reasonable scenario, the cost-effectiveness/legality of a Israeli non-nuclear preemption could be enhanced. Here, Jerusalem’s preemptive commitment to “anticipatory self-defense” would be law-enforcing. No such defense, however, could be mustered on behalf of any Israeli nuclear preemption, at attack that would in virtually all circumstances be in stark violation of authoritative international law. A possible exception could obtain only if Israel’s desperate resort to a nuclear preemption were compelled by plausible expectations of national disappearance (see, in this connection, the 1996 Advisory Opinion of the International Court of Justice). Moreover, should Israel feel compelled to actually resort to nuclear war-fighting at some point, either after (1) enemy reprisals for Israel’s conventional preemption cause the Jewish State to escalate to nuclear weapons; or (2) enemy chemical/biological/conventional first-strikes cause Israel to escalate to nuclear weapons, it would confront substantial problems under international law. Should certain enemy states launch nuclear first-strikes against Israel, Jerusalem’s retaliatory use of nuclear weapons would be less problematic jurisprudentially, but matters of law in such circumstances would likely become moot.
[xxxvii].See Vol. 3, tr. by Charles G. Fenwick, Washington, D.C., The Carnegie Institution of Washington 1916, p. 135.
[xxxviii].See Beth Polebau, National Self-Defense in International Law: An Emerging Standard for a Nuclear Age, 59 N.Y.U. L. REV. 187, 190-191 (noting that the Caroline case transformed the right to self-defense from an excuse for armed intervention into a customary legal doctrine).
[xxxix].See id. at 191 (cited Jennings, The Caroline and McLead Cases, 32 AM. J. INT’L L. 82, 90 (1938)) [hereinafter Jennings].
[xl].See id., at 89.
[xli].Cicero, citing approvingly to the Greeks, offers enthusiastic support for tyrannicide: “Grecian nations give the honors of the gods to those men who have slain tyrants. What have I not seen at Athens? What in the other cities of Greece? What divine honors have I not seen paid to such men? What odes, what songs have I not heard in their praise? They are almost consecrated to immortality in the memories and worship of men. And will you not only abstain from conferring any honors on the savior of so great a people, and the avenger of such enormous wickedness, but will you even allow him to be borne off for punishment? He would confess–I say, if he had done it, he would confess with a high and willing spirit that he had done it for the sake of the general liberty; a thing which would certainly deserve not only to be confessed by him, but even to be boasted of.” This is taken from Cicero’s speech in defense of Titus Annius Milo, a speech offered on behalf of an instance of alleged tyrannicide committed by Milo, leader of Lanuvium. See Cicero, The Speech of M.T. Cicero in Defense of Titus Annius Milo, in C.D. Yonge, tr., SELECT ORATIONS OF M.T. CICERO, New York: Harper & Brothers, 1882, p. 208.
[xlii] For important distinctions between assassination and targeted killing, see: Amos N. Guiora, Legitimate Target: A Criteria-Based Approach to Targeted Killing (New York and Oxford: Oxford University Press, 2013), 107 pp.
[xliii].Assessments of the lawfulness of assassination/targeted killing as anticipatory self-defense must always include proper comparisons with alternative available forms of preemption. If the perceived alternative to assassination were large-scale uses of force taking the form of defensive military strikes, a utilitarian or “balance of harms” criterion could favor assassination. Such a choice could have to be made sometime soon in Jerusalem, especially if “the territories” were formally transformed into a Palestinian state. Here, deprived of strategic depth, Israel could calculate that it had only three meaningful options: (1) do nothing, rely entirely on deterrence, and hope that enemy states remain dissuaded from striking first; (2) strike preemptively with military force against selected hard targets in enemy states, and hope that substantial reprisals are prevented by persuasive intra-war deterrence, i.e., by compelling Israeli threats of unacceptably damaging counter-retaliation; or (3) strike preemptively by assassination, and hope that this will reduce the overall threat to Israel without escalating into full-fledged military encounters. Although impossible to determine in the abstract, Option 3 could prove to be the most cost-effective choice available in certain circumstances.
[xliv].See Ian Brownlie, International Law and the Use of Force by States, 272-73 (1963) (asserting that the United Nations Charter modified the international custom of anticipatory self-defense and that self-defense is justified only in response to an actual armed attack); Wright, The Cuban Quarantine, 57 AM J. INT’L L. 546, 559-63 (1963) (interpreting Article 51 in conjunction with Article 33 to allow only a “peaceful means” of dispute resolution and a prohibition on the use of unilateral force until an actual armed conflict occurred); L. HENKIN, HOW NATIONS BEHAVE 141-44 (2d ed. 1979) (arguing that the Charter restricts the traditional right of self-defense to those situations where an armed attack has occurred); L. GOODRICH, E. HAMBRO, A. SIMONS, CHARTER OF THE UNITED NATIONS: COMMENTARY AND DOCUMENTS 178 (1946) (advocating a restrictive interpretation of Article 51 under which self-defense is only justified in response to an actual armed attack).
[xlv].Recall Samuel Pufendorf’s argument in ON THE DUTY OF MAN AND CITIZEN ACCORDING TO NATURAL LAW: “…where it is quite clear that the other is already planning an attack upon me, even though he has not yet fully revealed his intentions, it will be permitted at once to begin forcible self-defense, and to anticipate him who is preparing mischief, provided there be no hope that, when admonished in a friendly spirit, he may put off his hostile temper; or if such admonition be likely to injure our cause. Hence, he is to be regarded as the aggressor, who first conceived the wish to injure, and prepared himself to carry it out. But the excuse of self-defense will be his, who by quickness shall overpower his slower assailant. And for defense, it is not required that one receive the first blow, or merely avoid and parry those aimed at him.” See Samuel Pufendorf, ON THE DUTY OF MAN AND CITIZEN ACCORDING TO NATURAL LAW (1673): Vol. II, tr., by Frank Gardner Moore, New York: Oceana Publications, Inc., 1964, p. 32.
[xlvi]The extant system of international law remains a “vigilante” system, or, in other words, “Westphalian.” This historical reference is to the Peace of Westphalia (1648), which concluded the Thirty Years War, and created the now still-existing decentralized, or 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.
[xlvii].A similar imperative can be found in Jewish religious law. “When thou comest near to a city to fight against it,” proclaims Deuteronomy 20:10, “then proclaim peace to it.” Maimonides also calls for diplomatic solutions before hostilities begin to milhemet mitzvah (a war commanded by the Torah or Pentateuch): “No war is declared against any nation before peace offers are made to it.” The biblical commentator Abrabanel (1437-1508) argues not to hurry to go to war. For a more complete examinations of war in the Jewish tradition, consult Efraim Inbar, “War in Jewish Tradition,” The Jerusalem Journal of International Relations, Vol. 9, No. 2, June 1987, pp. 83-99.
[xlviii] The formal Iranian position on a prevailing state of war with Israel is unclear. If, however, Tehran did begin to expressly clarify that it regards its bilateral relationship with Israel as a state of belligerency, a state of war would legally obtain. This is the case in spite of the fact that Israel would consider itself to be in a “state of peace.”
[xlix].See COMMENTARY ON THE LAW OF PRIZE AND BOOTY, supra, p. 102. The idea of Natural Law is based upon the acceptance of certain principles of right and justice that prevail because of their own intrinsic merit. Eternal and immutable, they are external to all acts of human will and interpenetrate all human reason. This idea and its attendant tradition of human civility runs continuously from Mosaic Law and the ancient Greeks and Romans to the present day. For a comprehensive and far-reaching assessment of the natural law origins of international law, see Louis René Beres, “Justice and Realpolitik: International Law and the Prevention of Genocide,” THE AMERICAN JOURNAL OF JURISPRUDENCE, Vol. 33, 1988, pp. 123-159. This article was adapted from Professor Beres’ presentation at the International Conference on the Holocaust and Genocide, Tel-Aviv, Israel, June 1982.See also, more recently: Louis René Beres, JURIST: https://www.jurist.org/commentary/2021/12/louis-rene-beres-natural-law-us-constitution/
[l].The problem of reprisal as a rationale for the permissible use of force by states is identified explicitly and categorically in the U.N. Declaration of Principles of International Law Concerning Friendly Relations and Co-operation among States: “States have a duty to refrain from acts of reprisal involving the use of force.” See DECLARATION ON PRINCIPLES OF INTERNATIONAL LAW CONCERNING FRIENDLY RELATIONS AND COOPERATION AMONG STATES IN ACCORDANCE WITH THE CHARTER OF THE UNITED NATIONS. Adopted by the U.N. General Assembly, Oct. 24, 1970. U.N.G.A. Res. 2625 (XXV), 25 U.N. GAOR, Supp. (No. 28) 121, U.N. Doc. A/8028 (1971), reprinted in 9 I.L.M. 1292 (1970). For the most part, the prohibition of reprisals is deducible from the broad regulation of force in Article 2(4), the obligation to settle disputes peacefully in Article 2(3) and the general limiting of permissible force by states to self-defense. A total ban on reprisals would presuppose a degree of global cohesion that does not exist; circumstances could sometimes arise wherein a resort to reprisal as a form of self-help would be verifiably law-enforcing. This is especially the case in matters where reprisals were undertaken for prior acts of terrorism. See, for example, Richard A. Falk, “The Beirut Raid and the International Law of Retaliation,” 63 A.J.I.L. 415-443 (1969). An argument accepting any continuing role for permissible reprisals under international law is offered by J. Stone’s Aggression and World Order 43, 94-98 (1958).
[li].Although reprisal and self-defense are both forms of the same generic remedy, self-help, an essential difference lies in their respective aim or purpose. Coming after the harm has already been absorbed, reprisals are inherently punitive in character and cannot be undertaken for protection. Self-defense, on the other hand, is by its very nature intended to mitigate harm. For a useful and informed discussion of the distinction between reprisals and self-defense, see Derek Bowett, “Reprisals Involving Recourse to Armed Force,” in Richard A. Falk, Friedrich Kratochwil and Saul H. Mendlovitz, eds., INTERNATIONAL LAW: A CONTEMPORARY PERSPECTIVE (Boulder, CO: Westview Press, 1985), pp. 394-410.
[lii] If Israel were to assume that a state of war exists with Iran, it would have every legal right to use force against that country as part of an already-ongoing condition of belligerency. Here, Israel’s only legal obligations with respect to such force would have to do with jus in bello expectations of the law of armed conflict or humanitarian international law – most expressly, the peremptory obligations of discrimination, proportionality, and military necessity. However, despite the fact that Iran has initiated assorted acts of terror against Israel, is supplying missiles and other weaponry to Hamas and Hezbollah, and has openly threatened to destroy Israel (thus in plain evidence of genocidal intent), this has not yet been formally interpreted by Jerusalem as an authoritative declaration of war.
[liii] According to the Vienna Convention on the law of Treaties, a treaty is always an international agreement “concluded between States….” 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).
[liv].See Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature, December 9, 1948, entered into force, January 12, 1951, 78 U.N.T.S. 277. Although the criminalizing aspect of international law that proscribes genocide-like conduct may derive from a source other than the Genocide Convention (i.e., it may emerge from customary international law and be included in different international conventions), such conduct is clearly a crime under international law. Even where the conduct in question does not affect the interests of more than one state, it becomes an international crime whenever it constitutes an offense against the world community delicto jus gentium. See especially UNIVERSAL DECLARATION OF HUMAN RIGHTS, Dec. 10, 1948, U.N.G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948); EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS, Done at Rome, Nov. 4., 1950. Entered into force, Sept. 3, 1953, Europe T.S. No. 5., CONVENTION RELATING TO THE STATUS OF REFUGEES. Done at Geneva, July 28, 1951. Entered into force, April 22, 1954. 189 U.N.T.S. 137 (This Convention should be read in conjunction with the Protocol Relating to the Status of Refugees, adopted by the General Assembly on December 16, 1966, and entered into force, October 4, 1967); CONVENTION ON THE POLITICAL RIGHTS OF WOMEN. Done at New York, March 31, 1953. Entered into force for the United States, July 7, 1976. 27 U.S.T. 1909, T.I.A.S. No. 8289, 193 U.N.T.S. 135; DECLARATION ON THE GRANTING OF INDEPENDENCE TO COLONIAL COUNTRIES AND PEOPLES, Dec. 14, 1960, U.N.G.A. Res. 1514 (XV), 15 U.N. GAOR, Supp. (No. 16) 66, U.N. Doc. A/4684 (1961); INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION, Opened for signature, March 7, 1966. Entered into force, Jan. 4, 1969. 660 U.N.T.S. 195, reprinted in 5 I.L.M. 352 (1966); INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS, opened for signature, Dec. 19, 1966. Entered into force, Jan. 3, 1976. U.N.G.A. Res. 2200 (XXI), 21 U.N. GAOR, Supp. (No. 16) 49, U.N. Doc. A/6316 (1967), reprinted in 6 I.L.M. 360 (1967), INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS. Opened for signature, Dec. 19, 1966. Entered into force, March 23, 1976. U.N.G.A. Res. 2200 (XXI), 21 U.N. GAOR, Supp. (No. 16) 52, U.N.Doc. A/6316 (1967), reprinted in I.L.M. 368 (1967); AMERICAN CONVENTION ON HUMAN RIGHTS. Done at San Jose, Nov. 22, 1969. Entered into force, July 18, 1978. O.A.S. Treaty Series No. 36 at 1, O.A.S. Off. Rec. OEA/Ser. L/V/II. 23 doc. 21 rev. 6 (1979), reprinted in 9 I.L.M. 673 (1970). The Universal Declaration of Human Rights, The International Covenant on Civil and Political Rights (together with its Optional Protocol of 1976), and the International Covenant on Economic, Social and Cultural Rights–known collectively as the International Bill of Rights–serve as the touchstone for the normative protection of human rights.
[lv].From the standpoint of international law, these preparations constitute planned aggression as well as genocide. In this connection, according to Article 2(4) of the U.N. Charter: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” See CHARTER OF THE UNITED NATIONS. Done at San Francisco, June 26, 1945. Entered into force for the United States, October 24, 1945. 59 Stat. 1031, T.S. No. 993, 3 Bevans 1153, 1976, Y.B.U.N. 1043.
[lvi].See D.F. Green, ed., ARAB THEOLOGIANS ON JEWS AND ISRAEL: EXTRACTS FROM THE PROCEEDINGS OF THE FOURTH CONFERENCE OF THE ACADEMY OF ISLAMIC RESEARCH (Geneva: 1976), p. 51; see also Robert S. Wistrich, ANTISEMITISM: THE LONGEST HATRED (New York: Pantheon Books, 1991), p. 230.
[lvii].See Joan Peters, FROM TIME IMMEMORIAL: THE ORIGINS OF THE ARAB-JEWISH CONFLICT OVER PALESTINE (London: 1984), pp. 436-7, which reproduces the Mufti’s own account of his meeting with Hitler.
[lviii].See Wistrich, supra, p. 247; see also, Y. Harkabi, ARAB ATTITUDES TO ISRAEL (Jerusalem, 1971), p. 279.
[lix].International law explicitly prohibits not only the use of force against the territorial integrity or political independence of any state except in self-defense, but also the threat of force. In this connection, even in the absence of attacks upon Israel, the recurrent threats made by Iran could constitute egregious violations, inter alia, of the Article 2(4) prohibition on the threat of force. Significantly, former US President Donald J. Trump made several such impermissible threats against North Korea. See by this author: Louis René Beres, JURIST: https://www.jurist.org/commentary/2020/10/louis-rene-beres-us-north-korea-nuclear-war/ See also, by Professor Beres, at YALE: https://archive-yaleglobal.yale.edu/content/too-late-north-korea-denuclearization
[lx] Official Palestinian hostility to Israel remains oriented toward removal of the Jewish State by attrition and/or war. This annhilatory orientation has doctrinal foundations in the PLO’s “Phased Plan” of June 9, 1974. In its 12th Session, the PLO’s highest deliberative body, the Palestinian National Council, reiterated the organization’s aim “to achieve their rights to return, and to self-determination on the whole of their homeland.” The proposed sequence of violence was expressed as follows: FIRST, “to establish a combatant national authority over every part of Palestinian territory that is liberated” (Art. 2); SECOND, “to use that territory to continue the fight against Israel” (Art. 4); and THIRD, “to start a Pan-Arab War to complete the liberation of the all-Palestinian territory, i.e., to eliminate Israel” (Art. 8). At present, the idea of any such Pan-Arab war is belied by the widening Sunni-Shiite schism and also by continuously accumulating consequences of the Trump-brokered “Abraham Accords.”
[lxi] In essence, in its broadest contours, Israel’s ongoing posture of deliberate nuclear ambiguity was already breached by two of the country’s prime ministers, first, by Shimon Peres, on December 22, 1995, and second, by Ehud Olmert, on December 11, 2006. Peres, speaking to a group of Israeli newspaper and magazine editors, had then stated publicly: “…give me peace, and we’ll give up the atom. That’s the whole story.” When, later, Olmert offered very similarly general but also plainly revelatory remarks, they were described widely and benignly as mere “slips of the tongue.”
[lxii].The core question of deliberate ambiguity vs. disclosure is the central theme of Louis René Beres, ed., SECURITY OR ARMAGEDDON: ISRAEL’S NUCLEAR STRATEGY (Lexington, MA: Lexington Books, 1986). See also, inter alia, Louis René Beres, “Looking Ahead: Revising Israel’s Nuclear Ambiguity in the Middle East,” Herzliya Conference 2013, Working Paper, and by this author: Louis Rene Beres, Surviving Amid Chaos: Israel’s Nuclear Strategy: https://paw.princeton.edu/new-books/surviving-amid-chaos-israel%E2%80%99s-nuclear-strategy
[lxiii].For foundational conventions in force concerning terrorism, see especially CONVENTION ON THE PREVENTION AND PUNISHMENT OF CRIMES AGAINST INTERNATIONALLY PROTECTED PERSONS, INCLUDING DIPLOMATIC AGENTS. Adopted by the U.N. General Assembly, Dec. 14, 1973. Entered into force for the United States, Feb. 20, 1977. 28 U.S.T. 1975, T.I.A.S., No. 8532. Reprinted in 13 I.L.M. 43 (1974); VIENNA CONVENTION ON DIPLOMATIC RELATIONS. Done at Vienna, April 18, 1961. Entered into force for the United States., Dec. 13, 1972. 23 U.S.T. 3227, T.I.A.S. No. 7502, 500 U.N.T.S. 95; CONVENTION ON OFFENSES AND CERTAIN OTHER ACTS COMMITTED ON BOARD AIRCRAFT (TOKYO CONVENTION), September 14, 1963, entered into force for the United States on December 4, 1969, 704 U.N.T.S. 219, 20 U.S.T. 2941; CONVENTION FOR THE SUPPRESSION OF UNLAWFUL SEIZURE OF AIRCRAFT (Hague Convention) of December 16, 1970, entered into force for the United States on Oct. 14, 1971, 22 U.S.T. 1641; CONVENTION FOR THE SUPPRESSION OF UNLAWFUL ACTS AGAINST THE SAFETY OF CIVIL AVIATION (MONTREAL CONVENTION) of September 23, 1971, entered into force for the United States on Jan. 26, 1973. 24 U.S.T. 564; INTERNATIONAL CONVENTION AGAINST THE TAKING OF HOSTAGES, Adopted by General Assembly Resolution 34/146 of December 17, 1979. U.N. Gen. Assbly. Off. Rec. 34th Sess. Supp. No. 46 (A/34/46), p. 245; entered into force on June 3, 1983, entered into force for the United States on December 7, 1984; EUROPEAN CONVENTION ON THE SUPPRESSION OF TERRORISM OF JANUARY 27, 1977, entered into force on August 4, 1978, E.T.S. 90. On December 9, 1985, the U.N. General Assembly unanimously adopted a resolution condemning all acts of terrorism as “criminal.” Never before had the General Assembly adopted such a comprehensive resolution on this question. Yet, the issue of particular acts that actually constitute terrorism was left largely unaddressed, except for acts such as hijacking, hostage-taking and attacks on internationally protected persons that were criminalized by previous custom and conventions. See UNITED NATIONS RESOLUTION ON TERRORISM, General Assembly Resolution 40/61 of December 9, 1985, U.N. Gen. Assbly. Off. Rec 40th Sess., Supp. No. 53 (A/40/53), p. 301.
[lxiv].Assured destruction capacity refers to the ability to inflict an “unacceptable” degree of damage upon an attacker, after absorbing a first strike. Mutual assured destruction (MAD) describes a condition in which an assured destruction capacity is possessed by opposing sides. Counterforce strategies are those which target an adversary’s strategic military facilities and supporting infrastructure. Such strategies may be dangerous not only because of the “collateral damage” they might produce, but also because they may heighten the likelihood of first-strike attacks. In this connection, collateral damage refers to the damage done to human and non-human resources as a consequence of strategic strikes directed at enemy forces or at military facilities. This “unintended” damage could conceivably involve large numbers of casualties and fatalities.
[lxv] See, for example, Louis René Beres, “Facing Myriad Enemies: Core Elements of Israeli Nuclear Deterrence,” The Brown Journal of World Affairs, Fall, 2013.
[lxvi]It is important to understand that former Israeli Prime Minister Benjamin Netanyahu’s insistence that any Palestinian state remain “demilitarized” was not merely unrealistic, but also inconsistent with pertinent international law. On this point, 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. Zalman Shoval was twice Israel’s ambassador to the United States.
[lxvii] In its decisions concerning nuclear weapons, Jerusalem will have to look beyond tactical military calculations, toward long-term political considerations. With such a wider view, Israel’s leaders will discover that the weight of international opinion, both official and public, is now more strongly arrayed against nuclear weapons use than before, and that a world led by denuclearizing major powers would be openly hostile to any first-use of nuclear arms in the Middle East. This does not mean that Jerusalem will likely reason that expectations of negative world public opinion should override expectations of national survival, but it does suggest that Israel’s leaders will be anxious to do everything possible to avoid any resort to nuclear “battles” in the region.
[lxviii].On the core “nuclear regime” under international law, including the anti-proliferation measures, See the Antarctic Treaty, Dec. 1, 1959, 12 U.S.T. 794, T.I.A.S. no. 4780, 402 U.N.T.S. 71; the Memorandum of Understanding Between the United States and the Union of Soviet Socialist Republics Regarding the Establishment of a Direct Communication Link (“the Hot Line Agreement”), June 20, 1963, 14 U.S.T. 825, T.I.A.S. No. 5362, 472 U.N.T.S. 163; the Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water (“the Partial Test Ban Treaty”), Aug. 5, 1963, 14 U.S.T. 1313, T.I.A.S. no. 5433, 480 U.N.T.S. 43; the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (“the Outer Space Treaty”), opened for signature Jan. 27, 1967, 18 U.S.T. 2410, T.I.A.S. No. 6347, 610 U.N.T.S. 205; the Treaty for the Prohibition of Nuclear Weapons in Latin America (“the Treaty of Tlateloco”), Feb. 14, 1967, 634 U.N.T.S. 326; the Treaty on the Non-Proliferation of Nuclear Weapons (“the NPT”), opened for signature July 1, 1968, 21 U.S.T. 483, T.I.A.S. No. 6839, 729 U.N.T.S. 161; the Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Seabed and the Ocean Floor and in the Subsoil Thereof (“the Seabed Arms Control Treaty”), opened for signature Feb. 11, 1971, 23 U.S.T. 701, T.I.A.S. No. 7337, 955 U.N.T.S. 115; the Agreement on Measures to Reduce the Risk of Outbreak of Nuclear War Between the United States and the Union of Soviet Socialist Republics (“the Accident Measures Agreement”), Sept. 30, 1971, 22 U.S.T. 1590, T.I.A.S. No. 7186, 807 U.N.T.S. 57; the Agreement Between the United States of America and the Union of Soviet Socialist Republics on Measures to Improve the USA-USSR Direct Communications Link (“the Hot Line Modernization Agreement”), Sept. 30, 1971, 22 U.S.T. 1598, T.I.A.S. No. 7187, 806 U.N.T.S. 402; the Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile Systems (“the ABM Treaty”), May 26, 1972, 23 U.S.T. 3435, T.I.A.S. No. 7503, 944 U.N.T.S. 13; the Interim Agreement Between the United States of America and the Union of Soviet Socialist Republics on Certain Measures with Respect to the Limitation of Strategic Offensive Arms, May 26, 1972, 23 U.S.T. 3462, T.I.A.S. No. 7504, 94 U.N.T.S. 3; the Declaration of Basic Principles of Relations Between the United States of America and the Union of Soviet Socialist Republics, May 29, 1972, 66 DEP’T STATE BULL. 898 (1972); the Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Underground Nuclear Weapon Tests, July 12, 1974, 71 DEP’T STATE BULL. 217 (1974); the Limitation on Anti-Ballistic Missile Systems Treaty Protocol, July 3, 1974, United States-Union of Soviet Socialist Republics, 27 U.S.T. 1645, T.I.A.S. No. 8276; the Joint Statement on the Limitation of Strategic Offensive Arms (“the Vladivostok Agreement”), April 29, 1974, 70 DEP’T STATE BULL. 677 (1974); the Final Act of the Conference on Security and Cooperation in Europe (“the Helsinki Accords”), Aug., 1, 1975, Dep’t State Pub. No. 8826 (Gen’l for. Pol. Ser. 298); the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (“the Moon Treaty”), Report of the Committee on the Peaceful Uses of Outer Space, 34 U.N. GAOR, Supp. (No. 20) 33, U.N. Doc. A/34/20 Annex II (1979); the South Pacific Nuclear-Free Zone Treaty, Aug. 6, 1985, 24 I.L.M. 1440; and the Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Elimination of Their Intermediate-Range and Shorter-Range Missiles (“the INF Treaty”), Dec. 8, 1987, 88 DEP’T STATE BULL. 24 (Feb. 1988). See also the US-USSR Treaty and Protocol on Underground Nuclear Explosions for Peaceful Purposes, May 28, 1976, 74 DEP’T STATE BULL. 802 (1976) and the Treaty Between the United States of America and the Union of Soviet Socialist Republics, the SALT II Treaty, June 18, 1979, S. Exec. Doc. Y, 96th Cong., 1st Sess. 37 (1979).
[lxix]These complex and nuanced expectations bring to mind Sun-Tzu’s oft-quoted suggestion to embrace the “unorthodox” in military matters. For recent and specific applications of Sun-Tzu’s ancient wisdom to Israel, by this author, see: Louis René Beres, “Lessons for Israel from Ancient Chinese Military Thought: Facing Iranian Nuclearization with Sun-Tzu,” Harvard National Security Journal, Harvard Law School, Online, posted October 24, 2013.
[lxx] One should be reminded here, of a warning speech of Pericles (432 BCE), as noted by Thucydides: “What I fear more than the strategies of our enemies, is our own mistakes.” See: Thucydides: The Speeches of Pericles, H.G. Edinger, tr., New York: Frederick Ungar Publishing Company, 1979, p. 17.
[lxxi] It would be prudent to understand here that the United States and Russia could now be at the midst of a new Cold War. In principle, at least, such a revived stance of belligerent orientation could unfold to Israel’s strategic advantage rather than Iran’s. It is therefore incumbent upon Israel’s military and political leadership to anticipate cautiously and plan prudently.
[lxxii] Expressions of decisional irrationality could take different and overlapping forms. These forms include a disorderly or inconsistent value system; computational errors in calculation; an incapacity to communicate efficiently; random or haphazard influences in the making or transmittal of particular decisions; and the internal dissonance generated by any structure of collective decision-making (i.e., assemblies of pertinent individuals who lack identical value systems and/or whose organizational arrangements impact their willing capacity to act as a single or unitary national decision maker).
[lxxiii].From the point of view of international law, anyuse of nuclear weapons by an insurgent group would represent a serious violation of the Laws of War. These laws were brought to bear upon non-state participants in world politics by Article 3, common to the four Geneva Conventions of August 12, 1949, and by the two protocols to the conventions. Protocol I makes the law concerning international conflicts applicable to conflicts fought for self-determination against alien occupation and against colonialist and racist regimes. A product of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts that ended on June 10, 1977, the protocol (which was justified by the decolonization provisions of the U.N. Charter and by resolutions of the General Assembly) brings irregular forces within the full scope of the law of armed conflict. Protocol II, also addition to the Geneva Conventions, concerns protection of victims of non-international armed conflicts. Hence, this protocol applies to all armed conflicts that are not covered by Protocol I and that take place within the territory of a state between its The law of armed conflict is concerned largely with the principle of proportionality, which has its jurisprudential and philosophic origins in the Biblical Lex Talionis, the law of exact retaliation. The “eye for eye, tooth for tooth” can be found in three separate passages of the Jewish Torah, or Biblical Pentateuch. These Torah rules are likely related to the Code of Hammurabi (c. 1728- expression 1686 BCE) – the first written evidence of penalizing wrongdoing with exact retaliation. In matters concerning personal injury, the code prescribes an eye for an eye (# 196), breaking bone for bone (#197), and extracting tooth for tooth (#199). Among the ancient Hebrews, we must speak not of the Lex Talionis, but of several. The Lex Talionis appears in only three passages of the Torah. In their sequence of probable antiquity, they are as follows: Exodus 21: 22-25; Deuteronomy 19: 19-21; and Leviticus 24: 17-21. All have similarities to various other Near Eastern legal codes. These three passages address specific concerns: hurting a pregnant woman, perjury, and guarding Yahweh’s altar against defilement. See Marvin Henberg, Retribution: Evil for Evil in Ethics, Law and Literature, 59-186 (1990). In contemporary international law, the principle of proportionality can be found in the traditional view that a state offended by another state’s use of force, if the offending state refuses to make amends, “is then entitled to take `proportionate’ reprisals.” See Ingrid Detter De Lupis, The Law of War, 75 (1987). 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). armed forces and dissident armed forces.
[lxxiv] The law of armed conflict is largely concerned with the principle of proportionality, which has its jurisprudential and philosophic origins in the Biblical Lex Talionis, the law of exact retaliation. The “eye for eye, tooth for tooth” can be found in three separate passages of the Jewish Torah, or Biblical Pentateuch. These Torah rules are likely related to the Code of Hammurabi (c. 1728- expression 1686 BCE) – the first written evidence of penalizing wrongdoing with exact retaliation. In matters concerning personal injury, the code prescribes an eye for an eye (# 196), breaking bone for bone (#197), and extracting tooth for tooth (#199). Among the ancient Hebrews, we must speak not of the Lex Talionis, but of several. The Lex Talionis appears in only three passages of the Torah. In their sequence of probable antiquity, they are as follows: Exodus 21: 22-25; Deuteronomy 19: 19-21; and Leviticus 24: 17-21. All have similarities to various other Near Eastern legal codes. These three passages address specific concerns: hurting a pregnant woman, perjury, and guarding Yahweh’s altar against defilement. See Marvin Henberg, Retribution: Evil for Evil in Ethics, Law and Literature, 59-186 (1990). In contemporary international law, the principle of proportionality can be found in the traditional view that a state offended by another state’s use of force, if the offending state refuses to make amends, “is then entitled to take `proportionate’ reprisals.” See Ingrid Detter De Lupis, The Law of War, 75 (1987). 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).
[lxxv] Such use of nuclear weapons could conceivably be consistent with international law. On July 8, 1996, the International Court of Justice (ICJ) at The Hague handed down its Advisory Opinion on “The Legality of the Threat or Use of Force of Nuclear Weapons.” The final paragraph 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.”
[lxxvi].For early assessments of nuclear weapons under international law, see: “The Illegality of Nuclear Weapons: Statement of the Lawyer’s Committee on Nuclear Policy,’ ALTERNATIVES: A JOURNAL OF WORLD POLICY, Vol. VIII, No. 2, Fall 1982, pp. 291-296; Richard Falk, Elliott Meyrowitz and Jack Sanderson, “Nuclear Weapons and International Law,” Center of International Studies, Princeton University, World Order Studies Monograph, 1981; John H.E. Fried, “First Use of Nuclear Weapons – Existing Prohibitions in International Law,” BULLETIN OF PEACE PROPOSALS, January 1981, pp. 21-29; Matthew Lippman, “Nuclear Weapons and International Law: Towards A Declaration on the Prevention and Punishment of the Crime of Nuclear Humanicide,” LOYOLA OF LOS ANGELES INTERNATIONAL AND COMPARATIVE LAW JOURNAL, Vol. 8, No. 2, 1986, pp. 183-234; Burns Weston, “Nuclear Weapons and International Law: Illegality in Context,” THE DENVER JOURNAL OF INTERNATIONAL LAW AND POLICY, 1983; I. Brownlie, “Some Legal Aspects of the Use of Nuclear Weapons,” INTERNATIONAL AND COMPARATIVE LAW QUARTERLY, Vol. 14, 1965; Francis A. Boyle, “The Relevance of International Law to the `Paradox’ of Nuclear Deterrence,” NORTHWESTERN UNIVERSITY LAW REVIEW, Vol. 80, No. 6, Summer 1986, pp. 1407-1448; James A. Stegenga, “Nuclearism and International Law,” PUBLIC AFFAIRS QUARTERLY, Vol. 4, No. 1, January 1990, pp. 69-80; Geoffrey Best, HUMANITY IN WARFARE (New York: Columbia University Press, 1980); James Turner Johnson, JUST WAR TRADITION AND THE RESTRAINT OF WAR (Princeton: Princeton University Press, 1981); Istvan Pogany, ed., NUCLEAR WEAPONS AND INTERNATIONAL LAW (New York: St. Martin’s Press, 1987); Daniel J. Arbess, “The International Law of Armed Conflict in Light of Contemporary Deterrence Strategies: Empty Promise or Meaningful Restraint?” MCGILL LAW JOURNAL, Vol. 30, 1984, pp. 89-142; E.D. Thomas, “Atomic Bombs in International Society,” AMERICAN JOURNAL OF INTERNATIONAL LAW, Vol. 39, October 1945, pp. 736-744; E.C. Stowell, “Laws of War and the Atomic Bomb,” AMERICAN JOURNAL OF INTERNATIONAL LAW, Vol. 39, October 1945, pp. 784-788; John Norton Moore, “Nuclear Weapons and the Law: Enhancing Strategic Stability,” BROOKLYN JOURNAL OF INTERNATIONAL LAW, Vol. 9, No. 2, Summer 1983, pp. 263-268; Eugene V. Rostow, “The Great Nuclear Debate,” YALE JOURNAL OF WORLD PUBLIC ORDER, Vol. 8, 1981, pp. 87-102; Elliott L. Meyrowitz, “The Opinions of Legal Scholars on the Legal Status of Nuclear Weapons,” STANFORD JOURNAL OF INTERNATIONAL LAW, Vol. 24, Issue 1, pp. 111-177; Burns H. Weston, “Nuclear Weapons Versus International Law: A Contextual Reassessment,” MCGILL LAW JOURNAL, Vol. 28, No. 3, July 1983, pp. 543-590; John H.E. Fried, “The Nuclear Collision Course: Can International Law Be of Help,” DENVER JOURNAL OF INTERNATIONAL LAW AND POLICY, Vol. 14, No. 1, Spring/Summer, 1985, pp. 97-120; and Francis A. Boyle, “The Criminality of Nuclear Weapons,” Nuclear Age Peace Foundation, Booklet #27, Waging Peace Series (Santa Barbara, CA: April, 1991, 13 pp.).
[lxxvii] Most recently, by this author, see: Louis René Beres, Horasis (Zurich): https://horasis.org/nuclear-war-avoidance-a-fourth-pillar-of-future-human-well-being/
[lxxviii].There is a substantial literature that deals authoritatively with expected consequences of a nuclear war. For earlier works by this author, see Louis René Beres: APOCALYPSE: NUCLEAR CATASTROPHE IN WORLD POLITICS (Chicago: The University of Chicago Press, 1980); MIMICKING SISYPHUS: AMERICA’S COUNTERVAILING NUCLEAR STRATEGY (Lexington Books, 1983); REASON AND REALPOLITIK: U.S. FOREIGN POLICY AND WORLD ORDER (Lexington, MA: Lexington Books, 1984); and SECURITY OR ARMAGEDDON: ISRAEL’S NUCLEAR STRATEGY (Lexington, MA: Lexington Books, 1986). More recently, by Professor Beres, see his Surviving Amid Chaos: Israel’s Nuclear Strategy (Rowman and Litlefield, 2016; 2nd ed., 2018).
[lxxix].See COMMITTEE FOR THE COMPILATION OF MATERIAL ON DAMAGE CAUSED BY THE ATOMIC BOMBS IN HIROSHIMA AND NAGASAKI, THE PHYSICAL, MEDICAL AND SOCIAL EFFECTS OF THE ATOMIC BOMBINGS (1981) (documenting the short- and long-term effects of the attacks); OFFICE OF TECHNOLOGY ASSESSMENT, THE EFFECTS OF NUCLEAR WAR (1979) (describing the health consequences of nuclear war).
[lxxx] These harms could even include nuclear terrorism. For very early writings by this author on such mass-casualty terrorism, see: Louis René Beres, “The Threat of Palestinian Nuclear Terrorism in the Middle East,” 15 INT’L PROBS. 48 (1976); Louis René Beres, “Is Nuclear Terrorism Plausible?’, in NUCLEAR TERRORISM: DEFINING THE THREAT 45 (Paul Leventhal and Yonah Alexander, eds., 1986); Louis René Beres, “Preventing Nuclear Terrorism: Responses to Terrorist Grievances,” in PREVENTING NUCLEAR TERRORISM: THE REPORT AND PAPERS OF THE INTERNATIONAL TASK FORCE ON PREVENTION OF NUCLEAR TERRORISM 146 (Paul Leventhal and Yonah Alexander, eds, 1987); Louis René Beres, “Responding to the Threat of Nuclear Terrorism,” in INTERNATIONAL TERRORISM: CHARACTERISTICS, CAUSES, CONTROLS 228 (Charles W. Kegley, Jr., ed, 1990); Louis René Beres, “Terrorism and International Law,” 3 FLA. INT’L L.J., 291 (1988); Louis René Beres, “International Terrorism and World Order: The Nuclear Threat,” 12 STAN. J. INT’L STUD. 131 (1977); Louis René Beres, “Terrorism and International Security: The Nuclear Threat,” 26 CHITTY’S L.J., 73 (1978); Louis René Beres, “Hic Sunt Dracones: The Nuclear Threat of International Terrorism,” PARAMETERS: J. U.S. ARMY WAR C., June 1979, at 11; Louis René Beres, “International Terrorism and World Order: The Nuclear Threat,” in STUDIES IN NUCLEAR TERRORISM 360 (Augustus R. Norton and Martin H. Greenberg, eds., 1979); Louis René Beres, TERRORISM AND GLOBAL SECURITY: THE NUCLEAR THREAT (Boulder and London: Westview Special Studies in National and International Terrorism, 1987), 2nd edition, 156 pp; Louis René Beres, APOCALYPSE: NUCLEAR CATASTROPHE IN WORLD POLITICS (Chicago and London: The University of Chicago Press, 1980), 315 pp; Louis Rene Beres, “Confronting Nuclear Terrorism,” 14 HASTINGS INT’L & COMP. L. REV 129 (1990); Louis René Beres, “On International Law and Nuclear Terrorism,” 24 GA. J. INT’L & COMP. L 1 (1994); Louis René Beres, “Israel, the `Peace Process,’ and Nuclear Terrorism: A Jurisprudential Perspective,” 18 LOY. L.A. INT’L & COMP. L.J. 767 (1996); Louis René Beres, “Preventing the `Blood-Dimmed Tide: How To Avoid Nuclear Terrorism Against the United States,” 24 STRATEGIC REV. 76 (1996); and Louis René Beres, “The United States and Nuclear Terrorism in a Changing World: A Jurisprudential View,” 12 DICK. J. INT’L L. 327 (1994).
[lxxxi]The presumption of solidarity between states in the fight against crime gives rise to the increasingly important principle of “universal jurisdiction.” It is mentioned in the Corpus Juris Civilis; Grotius, THE LAW OF WAR AND PEACE (1625), Bk. II, Ch. 20; and in E. Vattel, LE DROIT DES GENS, Bk. I, Ch. 19 (1758). The case for universal jurisdiction, which is strengthened whenever extradition is difficult or impossible to obtain, is also built into the four Geneva Conventions of August 12, 1949, which unambiguously impose upon the High Contracting Parties the obligation to punish certain grave breaches of their rules, regardless of where the infraction was committed or the nationality of the authors of the crimes.
[lxxxii].See Samuel Pufendorf, ON THE DUTY OF MAN AND CITIZEN, for an early expression of limits under the law of war: “As for the force employed in war against the enemy and his property, we should distinguish between what an enemy can suffer without injustice, and what we cannot bring to bear against him, without violating humanity. For he who has declared himself our enemy, inasmuch as this involves the express threat to bring the worst of evils upon us, by that very act, so far as in him lies, gives us a free hand against himself, without restriction. Humanity, however, commands that, so far as the clash of arms permits, we do not inflict more mischief upon the enemy than defense, or the vindication of our right, and security for the future, require.” See ON THE DUTY OF MAN AND CITIZEN ACCORDING TO NATURAL LAW (De Officio Hominis et Civis Juxta Legem Naturalem Libri Duo), Vol. II, tr. by Frank Gardner Moore, New York: Oceana Publications, Inc., 1964, p. 139.
[lxxxiii]See classical observations by John Locke and Nicholas John Spykman. According to Locke: “In all states and conditions, the true remedy of force without authority, is to oppose force to it.” (John Locke, The Second Treatise of Civil Government, Chapter XIII, Section, 155); and, quite similarly, according to Nicholas John Spykman: “In a world of international anarchy, foreign policy must aim above all at the improvement or at least the preservation of the relative power position of the state.” (Nicholas John Spykman, America’s Strategy in World Politics: New York: Harcourt, Brace & Co., 1942, p. 41.)
[lxxxiv] 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, however, is launched not out of genuine concern about “imminent” hostilities, but 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 be fatal.
[lxxxv] The principle of “military necessity” has been defined authoritatively as follows: “Only that degree and kind of force, not otherwise prohibited by the law of armed conflict, required for the partial or complete submission of the enemy with a minimum expenditure of time, life, and physical resources may be applied.” See: United States, Department of the Navy, jointly with Headquarters, U.S. Marine Corps; and Department of Transportation, U.S. Coast Guard, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M, Norfolk, Virginia, October 1995, p. 5-1. Reprinted in Adam Roberts and Richard Guelff, Documents on the Laws of War, Third Edition, Oxford, UK: Oxford University Press, 2000, p. 10. The term “military necessity” is discoverable, inter alia, in the 1946 Judgment of the International Military Tribunal at Nuremberg, Extracts on Crimes Against International Law, referring to Art. 6(b) of the London Charter, August 8, 1945: “War crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment, or deportation to slave labor, or for any other purpose of civilian populations, of or in occupied territory, murder of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.” See: Roberts and Guelff, supra., p. 177. Text reprinted from Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, Vol. XXII, IMT, Secretariat, Nuremberg, 1948, pp. 413-14, and 497.
[lxxxvi]Among other more obvious dangers, if Israel should refrain from striking first until Iran or another future enemy state or states had acquired nuclear weapons, these newly nuclear powers could then implement protective measures that would then pose additional hazards to Israel. Designed to guard against preemption, either by Israel or by regional enemies, these measures could involve the attachment of “hair trigger” launch mechanisms to nuclear weapon systems, and/or the adoption of “launch on warning” policies, possibly coupled with certain pre-delegations of launch authority. This means, in essence, that Israel would be increasingly endangered by steps taken by its nuclear enemies to prevent a preemption. Optimally, Israel would do everything possible to prevent such steps, especially because of the expanded risks of accidental or unauthorized attacks against its own armaments and populations. Yet, if such steps were to become a fait accompli, Jerusalem might still calculate, correctly, that a preemptive strike would be legal and cost-effective. This is because the expected enemy retaliation, however damaging, might still appear more tolerable than the expected consequences of enemy first-strikes – strikes likely occasioned by the failure of “anti-preemption” protocols.
[lxxxvii]Although it cannot be ruled out that an Israeli non-nuclear preemption would lead to nuclear exchanges (this would depend on the effectiveness and breadth of Israeli targeting, the surviving number of enemy nuclear weapons, and the willingness of some enemy leaders to risk Israeli nuclear counter-retaliations), such exchanges appear more likely if Iran is ultimately allowed to deploy nuclear weapons without sufficiently meaningful interference. Should such deployment take place, Israel could conceivably even confront a rationally-compelling incentive to launch a nuclearpreemption. In the plainly worst-case scenario for Jerusalem, one where even properly intersecting levels of conventional and nuclear deterrence had failed to protect Israel, and where Israel had undertaken a nuclear preemption without any confirmable success (i.e., without destroying an essential number of enemy missiles and warheads), physical survival of the state would then rest upon the country’s multiple and closely-interlinkedactive defenses.
[lxxxviii] Pertinent synergies could clarify or elucidate the world political system’s current state of hyper-disorder (a view that would reflect what the physicists prefer to call “entropic” conditions), and could be conceptually dependent upon each national decision-makers subjective metaphysics of time. For an early article by this author dealing with interesting linkages between such a subjective chronology and national decision-making (linkages that could shed additional light on still-growing risks of a US-North Korea nuclear war), see: Louis René Beres, “Time, Consciousness and Decision-Making in Theories of International Relations,” The Journal of Value Inquiry, Vol. VIII, No.3., Fall 1974, pp. 175-186.
[lxxxix]See https://www.state.gov/the-abraham-accords/ To be considered as complementary to these agreements, see: Israel-Sudan Normalization Agreement (October 23, 2020) and the Israel-Morocco Normalization Agreement (December 10, 2020).
[xc] Military doctrine is not the same as military strategy. Doctrine “sets the stage” for strategy. Inter alia, it identifies central beliefs that must subsequently animate an actual “order of battle.” Military doctrine describes certain underlying general principles on how a particular war should be waged. Always, the reciprocal task for military strategy is to support previously-fashioned military doctrine.
[xci] This end could include chaos. Strategists may think here of the tumultuous “state of nature” described in William Golding’s prophetic novel, Lord of the Flies. Before Golding, the 17th century English philosopher Thomas Hobbes (see Ch. XIII of Leviathan) had warned that in any such rabidly dissembling condition, the “life of man” must be “solitary, poor, nasty, brutish and short.”
[xcii] See: F.E. Adcock, The Greek and Macedonian Art of War(Berkeley and Los Angeles: University of California Press, 1962), p. 63.
[xciii] This does not mean, however, that purposeful theories would need to account for all pertinent variables. Clarifications of this point can be found at “Occam’s Razor” or the “principle of parsimony.” This core principle of philosophy of science stipulates a preference for the simplest explanation that is still consistent with scientific method. Regarding current concerns for Israel’s nuclear strategy, it suggests, inter alia, that the country’s military planners not seek to identify and examine every seemingly important variable, but rather to “say the most, with the least.” This suggestion presents an important and too-often neglected cautionary: All too often, policy-makers and planners mistakenly attempt to be too inclusive. This wrongheaded attempt unwittingly distracts these thinkers and officials from forging more efficient or “parsimonious” strategic theories.
[xciv]Sigmund Freud once noted persuasively: “Wars will only be prevented with certainty if mankind unites in setting up a central authority to which the right of giving judgment upon all shall be handed over. There are clearly two separate requirements involved in this: the creation of a supreme agency and its endowment with the necessary power. One without the other would be useless.” (See: Sigmund Freud, Collected Papers, cited in Louis René Beres, The Management of World Power: A Theoretical Analysis, University of Denver, Monograph Series in World Affairs, Vol. 10 (1973-73), p, 27.) Interestingly, Albert Einstein held very similar views. See, for example: Otto Nathan et al. eds., Einstein on Peace (New York: Schoken Books, 1960).
[xcv]One may be reminded here of the query of Aeschylus (presenting the ending of Agamemnon): “Where will it end? When will it all be lulled back into sleep, and cease, the bloody hatred, the destruction?” See: 1 The Complete Aeschylus, The Oresteia 146; Peter Burian & Alan Shapiro, eds., 2nd ed., 2011.
[xcvi]Whether it is described in the Old Testament or in other sources of ancient thought, chaos is potentially as much a source of human betterment as of declension. In essence, chaos is that which prepares the world for all things, both sacred and profane. And as its conspicuous etymology reveals, chaos represents that yawning gulf or gap wherein nothing is as yet, but where all civilizational opportunity must inevitably originate. Appropriately, the great German poet Hölderlin observed: “There is a desert sacred and chaotic which stands at the roots of the things and which prepares all things.” Even in the pagan ancient world, the Greeks thought of such a desert as logos, which should indicate to us that it was presumed to be anything but random or without merit.
[xcvii]These questions of “geometry” are magnified by Carl von Clausewitz’s famous idea of “friction.” “Everything is very simple in war,” says Clausewitz in On War, “but the simplest thing is difficult.” Herein, this concept refers to the unpredictable effect of errors in knowledge and information concerning intra-Israel (IDF/MOD) strategic uncertainties; of Israeli and Iranian under-estimations or over-estimations of relative power position; and of the unalterably vast and irremediable differences between abstract 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.
[xcviii] On the deeper insignificance of Trump-brokered agreements with assorted Sunni Arab states, see, Louis René Beres, “Israeli Nuclear Deterrence and International Law: Calculating Effects of Power Politics and Pandemics,” Indiana International and Comparative Law Review, Vol. 31. No. 3., 2021; pp. 329-350. https://mckinneylaw.iu.edu/iiclr/contents.html It is conceivable that these politically contrived agreements, taken together with former US President Donald J. Trump’s unilateral withdrawal of the United States from the 2015 JCPOA pact, exacerbated or enlarged Iran’s strategic threat to Israel. According to Trump, until he had intervened personally to bestow allegedly vast security benefits upon Israel, that wholly dependent country was being readied for war-based disappearance. Trump’s actual words, directed to “Bibi,” were as follows: “If it weren’t for me, Israel would have been destroyed.” (See https://www.israelnationalnews.com/news/318418).
[xcix]Hobbes argues convincingly that the international state of nature is “less intolerable” than that same condition among individuals in nature because, in the latter, the “weakest has strength enough to kill the strongest.” With the spread of nuclear weapons, however, this difference is disappearing. In the pre-nuclear age, Samuel Pufendorf, like Hobbes, was persuaded that the state of nations “…lacks those inconveniences which are attendant upon a pure state of nature….” Spinoza similarly suggested that “…a commonwealth can guard itself against being subjugated by another, as a man in the state of nature cannot do.” (See: Louis René Beres, The Management of World Power: A Theoretical Analysis, University of Denver, Monograph Series in World Affairs, Vol. 10, No.3., 1972-73, p. 65.)