For by Wise Counsel, Thou Shalt Make Thy War.”
Proverbs 24.6
For mostly good reason, policy discussions of Israel’s nuclear strategy and doctrine have been intentionally vague and without evident nuance. [1] More specifically, there have been few open-literature assessments of a limited nuclear war and its law-supported capacity for enhancing Israel’s strategic deterrence. Now, however, “it is getting late,” [2] and the following question should be raised conspicuously (not merely in whispers, or sotto voce): What should be done to remedy this significant and potentially destabilizing absence?
Definitions and Derivatives
The very idea of a limited nuclear war – any limited nuclear war – will be dismissed in many quarters as empirically implausible and/or morally repugnant. Such dismissal was in fact this concept’s initial reception back in the 1960s, when it was raised by early nuclear thinkers Herman Kahn and Henry Kissinger. Nonetheless, a once hostile reception is hardly proper intellectual justification for ignoring prospectively gainful (perhaps even indispensable) Israeli security correlates.
To begin, there are different ways of defining a limited nuclear war.
A nuclear war could be called “limited” if (in a two-party conflict dyad) only one side is already-nuclear. In this connection, prima facie, any upcoming war between Israel and Iran involving nuclear weapons would be an asymmetrical or “limited” nuclear war. This is the case, of course, only if there would be no Iranian already nuclear proxies (e.g., North Korea or Pakistan).
A nuclear war could be called “limited” in a two-party conflict dyad if both parties were operationally nuclear, but either one or both would face tangible restrictions of usable yield and/or target range.
A nuclear war could be called “limited” because of its actual or plausible duration. In turn, such a designation could follow from one or the other’s (or both) nuclear ordnance constraints or from the decisional judgments of one or both state combatants concerning relative force inferiority
All three defining criteria of a limited nuclear war are likely to intersect or overlap with each other, occasioning assorted synergies [3] or force-multiplications. Such interpenetrations would be foreseeable and unforeseeable, and could create variously injurious outcomes that were greater than the sum of their recognizable parts. Common to all such notions of a limited nuclear war is the implicit assumption that a nuclear war of varying magnitudes and relative capabilities could somehow be managed via incrementally-controlled and suitably coordinated adversarial escalations. But because these nuclear scenarios would be without precedent or sui generis, there could be nothing logical or scientific about such any such assumption. Significantly, this is the case even if the correlative assumption of enemy rationality was credible and compelling.
Still, let the thinkers and planners proceed as if these assumptions and definitional standards are somehow manageable by Jerusalem. Among other things, once such preliminaries have been scrutinized and acknowledged, strategic thinkers will need to re-assess the Jewish State’s core policy of “deliberate nuclear ambiguity.” Only then could designated Israeli planners proceed to increasingly specific strategic refinements that involved considerations of a limited nuclear war. Only then could they identify clarifying linkages between (1) threats of a limited nuclear war and viable nuclear deterrence; and (2) threats of a limited nuclear war and nuclear deterrence failure.
For the moment, Israel’s nuclear strategy remains “opaque” or “deliberately ambiguous.” In the past, this stance appears to have been sensible, “cost-effective” and perhaps even unassailable. Today, however, during the continuing Gaza War and coinciding conflicts with Iran and Hezbollah, this strategy requires fundamental and immediate reconsideration. Ipso facto, comparing all decipherable costs and benefits, Israel’s traditional “bomb in the basement” posture is no longer tenable. For the beleaguered mini-state (Israel is half the size of America’s Lake Michigan), it is high-time for a shift to “selective nuclear disclosure.”
There will be many explanatory particulars. A prudent nuclear posture for Israel should always be based on calculable judgments of believable options. Inter alia, any considered transformations of Israel’s nuclear ambiguity would need to be readily identifiable but not be gratuitously provocative. Moreover, by definition, Palestinian statehood [4] would eliminate Israel’s residual strategic depth altogether. [5]
How should Jerusalem create a promising chain of nuclear policy prescriptions? A comprehensive Israeli strategic doctrine would represent the general framework from which any specific posture of selective nuclear disclosure could be extracted. The principal importance of Israeli nuclear doctrine and strategy lies not only in the ways it can animate, unify and optimize the state’s armed forces, [6] but also in the more-or-less efficient manner in which Jerusalem could transmit cautionary messages to enemy state Iran and to enemy sub-state proxies Hamas, Hezbollah, etc.
From the standpoint of military harms, strategic dangers from the Shiite militia in Lebanon and Syria are far greater than those issuing from Sunni Hamas in Judea/ Samaria (West Bank) and Gaza. Though non-nuclear, potentially intolerable threats from Hezbollah could sometime need to be countered by limited nuclear war threats from Israel. “Normally,” Israeli nuclear deterrent threats would be directed only at Iran, Hezbollah’s state mentor.
For Israel, the shift from deliberate nuclear ambiguity to selective nuclear disclosure will need to be authoritative, unhesitating and prompt. Any continuing across-the-board ambiguity could have incremental but existential costs. Genuinely effective Israeli deterrence and defense policies urgently call for a military doctrine that is “selectively recognizable” by both Iran and its jihadist terrorist surrogates. [7] And even after Israel’s bomb is taken “out of the basement,” secrecy would remain intact on virtually all associated particulars.
Understanding Nuclear Deterrence Options
For Israel, any conclusive and durable military success against Iran and surrogates must lie in credibly-layered nuclear deterrence options, not in actual nuclear war-fighting. Recalling ancient Chinese military thinker Sun-Tzu in The Art of War, “Supreme excellence consists of breaking the enemy’s resistance without fighting.” In the critical survival matter of Israeli nuclear deterrence, designated decision-makers will need to acknowledge that there are occasions when too much secrecy could degrade the country’s national security. Though ironic and possibly counter-intuitive, understanding this argument is indispensable to Israel’s long-term security.
Always, Israel’s nuclear doctrine should be oriented to deterrence ex ante, not revenge ex post. Paradoxically, nuclear weapons can succeed only by calculated postures of strategic non-use. By definition, once these weapons have been used in actual battle, their critical mission will have failed. Once they were used in any operational form, tactical or strategic, every traditional meaning of “victory” would become moot.
Reasonably, Israel’s nuclear deterrence posture could have certain counter-terrorism benefits, but only with regard to Iran directly. Reciprocally, by allowing itself to be weakened by Iran-backed terrorists (Sunni or Shia), Israel would enlarge Israel’s incremental and potentially lethal vulnerabilities to the bellicose Islamic Republic. In evaluating such perplexing connections, Israeli planners will have to devote continuous and explicit attention to variously possible synergies and “force multipliers.”
The Cold War is over. Still, “Cold War II” is well underway between the United States, Russia and (this time around) China and North Korea. For many intersecting reasons, if Iran were allowed to become nuclear, Israel’s deterrence relationship with Iran would not be comparable to what had earlier obtained between the US and the USSR. In such unique or sui generis circumstances, any unmodified continuance of total nuclear ambiguity could cause an already-nuclear Iran to underestimate or overestimate Israel’s nuclear retaliatory capacity. Either kind of misestimating could lead rapidly and irreversibly to catastrophic war. [8]
Understanding Systemic Underpinnings
Background will be relevant. The world is a system. Various uncertainties surrounding Israel’s nuclear strategy could lead Iran and possibly other enemy states to reach similar kinds of misunderstanding. For example, Israel’s willingness to make good on a threatened nuclear retaliation could sometime be taken as inversely related to weapon system destructiveness. To wit, if Israel’s nuclear weapons were ever judged “too destructive,” they might not deter.
In principle, at least, any continuing Israeli posture of deliberate nuclear ambiguity could cause terrorist-mentoring Iran to overestimate the first-strike vulnerabilities of Israel’s nuclear forces. This could be the result of a too-rigorous silence concerning measures of protection deployed to safeguard Israel’s nuclear weapons and infrastructures. Alternatively, such an over-estimation could represent the product of Israeli doctrinal opacity on the country’s potential for security, an absence of transparency that would wrongly be interpreted as fragile or “porous” ballistic missile defense. Though any such Iranian conclusion would seem preposterous after Israel’s extraordinary successes at active defense, anything less than a 100% probability of interception could be inadequate vis-a-vis Iranian nuclear attacks. [9]
To deter an enemy state attack or post-preemption retaliation against Israel, Jerusalem should always prevent a rational state aggressor, via threats of unacceptably damaging retaliation or counter-retaliation, from deciding to strike first. Understood in this “classic” context, Israel’s national security should now be sought by convincing a presumptively rational Iranian attacker (irrational state enemies would pose a different calculation problem [10]) that the costs of any considered attack on Israel would exceed the expected benefits. Assuming that Iran values its national self-preservation more highly than any other preference or combination of preferences and would always choose rationally among alternative options, that enemy state will refrain from launching any attack on an Israel that is believed willing and able to deliver unacceptably damaging reprisals. [11] This is the case whether Iran were still a pre-nuclear state enemy or an already-nuclear one.
Whether Israel’s overlapping deterrent processes are geared primarily towards conventional or nuclear threats, their success will eventually depend on the expected rationality of the nation’s enemies. In those residual cases where such rationality appeared implausible, Jerusalem would find itself under considerable pressure to launch a preemptive first strike. If Jerusalem’s own expected responses were to be judged as rational, they might then also need to include a conclusive and operationally reliable option to exercise “anticipatory self-defense.” [12] For Israel, regional conflict prospects should always be curtailed at the lowest possible levels of controlled engagement; under no avoidable circumstances should Israel ever find itself having to preempt an already-nuclear adversary.
Assessing Iranian Capability and Willingness
There are additional details. Several factors would communicate such vital belief. In terms of capability, two essential components would require assessment and refinement: (1) payload and (2) delivery system. It should always be communicated to Iran that Israel’s firepower and its means of delivering that firepower are capable of inflicting unacceptable levels of cumulative harm. Israel’s retaliatory or counter-retaliatory forces should appear continuously invulnerable to Iranian first-strikes and sufficiently elusive to penetrate that determined aggressor’s [13] active defenses.
In Jerusalem, the “bottom line” should become clear. Israel’s security posture of deliberate nuclear ambiguity is outdated and dangerous. With Israel’s operational nuclear forces and doctrine kept locked away in its metaphoric “basement,” Iran could conclude, rightly or wrongly, that a first-strike attack or post-preemption reprisal against Israel would be rational and cost-effective. But if relevant Israeli doctrine were made more obvious to Tehran – that is, if rendered more consistently plain that Israel’s nuclear assets met both payload and delivery system objectives – Israel’s nuclear forces could more reliably serve their existential security functions.
Another critical success factor of Israeli nuclear doctrine is “presumed willingness.” How can Israel convince Iranian decision-makers that it possesses the resolve to deliver an appropriately destructive retaliation or counter retaliation? The answer to this core question lies in antecedent strategic doctrine, in Israel’s estimated strength of commitment to carry out such an attack and in the nuclear ordnance that would likely be available to the Jewish State.
Any continued ambiguity over Israel’s nuclear posture could create the erroneous impression of a state that is unwilling to retaliate. Conversely, any doctrinal movement toward some as-yet-undetermined level of nuclear disclosure could heighten the impression that Israel is actually willing to follow-through on its nuclear threats.
In the final analysis, all conceivable prospects should be examined by Jerusalem. What if Iran becomes nuclear? To be deterred by Israel, a newly-nuclear Iran would need to believe that a critical number of Israel’s retaliatory forces could survive any Iranian first-strike and that these forces could not be prevented from hitting high-value targets in Iran. Concerning the “presumed survivability” of Israeli nuclear forces, continued submarine-basing by Israel would be self-evidently gainful.
If carefully articulated, expanding doctrinal openness or selective nuclear disclosure would represent a rational and imperative policy option for Israel. The operational benefits of such expanding doctrinal openness would accrue from certain deliberate flows of information concerning Israeli weapons dispersion, multiplication or hardening of nuclear weapon systems and other technical weapon features. Most importantly, doctrinally-controlled and orderly flows of information could serve to remove any intermittent or lingering Iranian doubts about Israel’s nuclear force capabilities and intentions. At some point, if left unchallenged, such doubts could undermine Israeli nuclear deterrence with dissembling suddenness. This is the case whether Iran was still pre-nuclear or already-nuclear.
Israel and Threats of a Limited Nuclear War
It is at this point that our discussion narrows to specifically focused considerations of Israel and “limited nuclear war.” This little-examined category of inter-state belligerency contains two principal variants: (1) asymmetrical nuclear warfare, a variant wherein only Israel is nuclear; and (2) symmetrical nuclear warfare, a variant in which both Israel and Iran are nuclear but where (a) one side is presumptively “more powerful” and (b) one or both sides opt for discernible nuclear war limitations. Plausibly, regarding 2(a), the more powerful nuclear state would be Israel.
For # 1, the questions for Israel would concern the applicability of nuclear weapons and strategy to Iranian non-nuclear threats. A good place for working Israeli strategists to operationalize their refined strategic dialectic would be Iranian threats that are non-nuclear but unconventional. Most obvious here would be ascertainably credible threats of biological warfare, biological terrorism [14] and/or electromagnet pulse (EMP) attack. Also included in the category of Iranian non-nuclear threats would be massive conventional missile attacks launched by Hezbollah or Houthi proxies.
Though non-nuclear, biological attacks could still produce grievously injurious or near-existential event outcomes for Israel. An EMP attack, even if severely disruptive for Israel, would not likely qualify by itself as rationale for an “ordinary” Israeli nuclear reprisal. On the other hand, it is not inherently unreasonable that Israel would use “limited nuclear war” ordnance and strategy to render such a reprisal believable and cost-effective.
Israeli policies of “limited” nuclear reprisal for biological terror attacks could exhibit compelling deterrent effectiveness against Iran. Still, such policies could be inapplicable ipso facto to threats issuing from proxy terror groups that function without determinable state-sponsorship. In such more-or-less residual cases, Israel – lacking operationally suitable targets for calibrated nuclear targeting – would need to “fall back” on more usual arsenals of counter-terrorist methods. Such tactical retrogressions could be required even if the particular terror group involved had autonomous nuclear capabilities. As to threats issuing from terror groups with tangible state support (e.g., Sunni Hamas; Shiite Hezbollah; Shiite Houthi), Israel could then direct its nuclear deterrent threats directly toward Iran,
There is more. Because jihadist terrorists could identify personal death in “holy war” as an expression of religious martyrdom, Israeli planners would have to draw upon continuously challenging psychological investigations. For Israel, an absolutely worst-case scenario would link martyrdom thinking to Iranian foreign policies. [15]
What about Iranian conventional threats that would involve neither nuclear nor biological hazards, but were still prospectively massive enough to produce existential or near-existential harms to Israel? On its face, in such all-too-credible cases, ones which would likely include EMP ordnance, a prospective conventional aggressor in Tehran could reasonably calculate that Jerusalem would make good on some of its expressly “limited” nuclear threats. Here, however, Israel’s nuclear deterrent threat credibility would prove dependent upon our previously-referenced doctrinal shifts away from the “bomb in the basement.”
Why? Any correct answer must hinge on Israel’s operational flexibility. In the absence of any prior shift from deliberate nuclear ambiguity, Iran might not understand or accept that the State of Israel maintains a sufficiently broad array of measured and graduated nuclear retaliatory responses. In the absence of such a confirmable array, Israeli nuclear deterrence could be sorely diminished and fatally degraded. [16]
Additional nuances would surface. As a direct consequence of any presumptively diminished nuclear ambiguity, Jerusalem could signal its Iranian adversary that Israel would wittingly cross the nuclear retaliatory threshold to punish all acts of existential or near-existential aggressions. Using more explicitly military parlance, Israel’s recommended shift to certain apt forms of “selective nuclear disclosure” would intend to bolster Jerusalem’s success in “escalation dominance.” [17]
Limited Nuclear War as a Law-Based Strategic Option
International law is not a suicide pact. [18] No state, including Israel, is under an automatic legal obligation to renounce access to nuclear weapons. In certain distinctly residual or last-resort circumstances, even the actual use of nuclear weapons could be lawful (but only to the extent that such use was consistent with codified and customary expectations of distinction, proportionality, and military necessity). [19]
On July 8, 1996, the International Court of Justice at The Hague handed down its Advisory Opinion on “The Legality of the Threat or Use of Force of Nuclear Weapons.” The final paragraph of this Opinion concludes: “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 the state would be at stake.” [20]
Symmetries and Asymmetries of Limited Nuclear War
For the immediate future, any onset of a limited nuclear war between Israel and Iran would be of the “asymmetrical” form. At that relatively favorable point, Jerusalem would have no occasion to concern itself with any Iranian achievement of “escalation dominance,” [21] but only with its own use of “limited nuclear war” threats designed to keep Iran non-nuclear. Because such use could also be gainfully applied to assorted non-nuclear threats from Iran, Jerusalem will need to continuously assess potential nuclear deterrence advantages regarding enemy perils of biological war or terror; EMP attacks on major Israeli cities; and massive conventional attacks.
In a manifestly worst case of “asymmetrical nuclear war,” Iran’s already-nuclear North Korean ally would engage the Jewish State in direct nuclear warfare. Though “asymmetrical” in war origin, such a scenario could quickly come to represent de facto equivalence between the actual nuclear fighting forces of Israel and North Korea or the de facto nuclear superiority of Pyongyang.
For Israel’s military intelligence directorates, there could be no science-based assessment of relevant probabilities. This is because any such assessment would lack historical precedent. In science, authentic statements of probability must always be drawn from the determinable frequency of relevant past events. [22]
Finally, at some point and for variously diverse reasons, a nuclear war involving Israel and Iran could be “symmetrical.” Though it is certainly in Jerusalem’s best interest to prevent such a uniquely existential threat at almost any bearable cost, there is no logically irrefutable way to ensure such prevention. It follows that Israel will need to plan systematically for “escalation dominance” with an already-nuclear state adversary (including Iran’s increasingly capable terrorist surrogates), a process that should necessarily include certain selected “limited nuclear war” options.
With an informed reliability, Israeli planners will need to establish Iran’s expected nuclear “firebreaks.” As a helpful analogue, these planners will want to study differences between the United States and Russia regarding “triggers” for crossing from one military threshold to another. Extrapolating from Vladimir Putin’s recent and unambiguous declarations on nuclear warfighting, Moscow still sees tactical or theater nuclear weapons as incrementally continuous with conventional, chemical and biological ordnance and not as the critical firebreak between these categories of weaponry and strategic nuclear weapons.
Historically, Putin’s current nuclear posture closely resembles that of the former Soviet Union. From this standpoint, any Israeli or Iranian resort to nuclear warfighting would be “limited” as long as it remained non-strategic. Conceptually, however, the United States has always taken the contrary position that the critical military firebreak exists between conventional weapons in any form and any level of nuclear ordnance, tactical or “theatre” as well as strategic.
Summing up, Israel’s calculations concerning a prospective nuclear war with Iran will be stunningly complex and largely unprecedented. Nonetheless, such calculations are indispensable to Israel’s literal survival, and should be undertaken with conspicuously conscientious note of relevant nuclear war options. This is not a task for politicians of any stripe or even for the authoritative professional class of “official” military planners. It could be grasped only by a tiny number of “high thinkers” (a term that goes back to the manifestly non–military and pre-nuclear genre of American Transcendentalist philosopher Ralph Waldo Emerson), specially gifted scholars of “Manhattan Project” stature.
There is a key difference. This time, the objective would not be to build a uniquely advanced weapon, but to figure out how a perpetually beleaguered mini-state could best adapt an “ultimate weapon” to its deterrence-based strategies of national self-preservation. Extending Proverbs, “wise counsel” will be needed by Israel not to “make thy war” (a manifestly “second-choice” option), but to prevent or limit an already-foreseeable nuclear war. [23]
Can threats of a limited nuclear war enhance Israel’s overall strategic deterrence? At first hearing, it would seem to make sense that a limited nuclear war would flow more-or-less seamlessly from any Israeli use of the Samson Option, and that any such use would necessarily stem from Jerusalem’s prior shift away from “deliberate nuclear ambiguity.” At the same time, estimating probabilities of unique events is always an inherently non-scientific enterprise, and a limited nuclear war ipso facto would be without historical precedent. As a “bottom line” conclusion, no frequencies of limited nuclear war are presently known or knowable, and no related systems of nuclear deterrence could be tested short of inviting catastrophe.
A related problem for Israeli thinkers and planners has to do with notions of “victory.” Though it is certainly correct that such notions assume great importance in the political sphere, they become far more problematic in the analytic or intellectual sphere. Histories of warfare generally confirm that winning is not always well-defined or readily discernible. Israel’s Iranian enemy, in the fashion of most states (both adversarial and friendly) has plural strategic goals which could sometimes be mutually exclusive and/or change during the course of a particular conflict.
All things considered, the tangible deterrence benefits of limited nuclear war threats by Israel are not logically or mathematically calculable. Nonetheless, in a strategic context of continuous uncertainty, these threats could still prove cost-effective. This means, inter alia, that they would be “net-gainful.”
What are pertinent final specifics? Following an imperative and prompt shift from “deliberate nuclear ambiguity” to “selective nuclear disclosure,” Jerusalem should proceed to clarify (1) its Samson Option as an adjunct to strategic deterrence (not as a last-resort spasm of visceral revenge); and (2) its Samson-derived preparations for a limited nuclear war. For the moment, at least, (3) any such war would be “asymmetrical;” and (4) Israel would represent the sole nuclear combatant. Here, Jerusalem’s threats of a limited nuclear war would not be designed to produce “victory” through nuclear war fighting, but to (5) ensure Israel’s intra-war advantage by “escalation dominance” and (6) keep Iran verifiably non-nuclear.
For Israel, the primary “battlefield” will always be intellectual or analytical. This challenging observation is even truer today than in the state’s persistently difficult past. Authoritative decision-makers in Jerusalem now need to seek out “wise counsel” on potential deterrence benefits stemming from the dynamics of a limited nuclear war. This obligation is exceptionally urgent.
References
[1] Military doctrine is not the same as military strategy. Doctrine “sets the stage” for strategy. It identifies various central beliefs that must subsequently animate any actual “order of battle.” Among other things, military doctrine describes underlying general principles on how a particular war ought to be waged. The reciprocal task for military strategy, always more specific than doctrine, is to adapt as required in support of previously-fashioned military doctrine.
[2] These four galvanizing words are taken from poet W.H. Auden’s ‘The Age of Anxiety.”
[3] On this concept, by present author, see Louis René Beres, Harvard Law School (Harvard National Security Journal): https://harvardnsj.org/2015/06/02/core-synergies-in-israels-strategic-planning-when-the-adversarial-whole-is-greater-than-the-sum-of-its-parts/
[4] The argument that a Palestinian state would be more benign because it could be “demilitarized” is unsupportable in strategic, political or jurisprudential terms. See, by this writer, Louis René Beres, “Why the Allen Plan and Palestinian Demilitarization Could Never Protect Israel,” Israel Defense, 16 July, 2017. Earlier law journal articles on this limitation, co-authored with former Israeli Ambassador to the United States Zalman Shoval, include: Louis René Beres and Zalman Shoval, “Why a Demilitarized Palestinian State Would not Remain Demilitarized: A View Under International Law,” Temple International and Comparative Law Journal, Winter 1998, pp. 347-363; and Louis René Beres and Zalman Shoval, “On Demilitarizing a Palestinian `Entity’ and the Golan Heights: An International Law Perspective,” Vanderbilt Journal of Transnational Law, Vol. 28, No.5., 1995m pp. 959-972.
[5] Formally, foreseeable Palestinian infringements would have roots in the Palestinian National Covenant. Calling officially for sustained Arab violence against Israel, this document was adopted in 1964, three years before the 1967 Six Day War. The Palestinians’ core guidance on terror was first published – together with its explicit references to the annihilation of Israel – three years before there were any “occupied territories,” For the Palestinian Authority, which until October, 2015, had still agreed to accept a “Two-State Solution,” and for Hamas, the underlying position of protracted war was part of a broader strategy of incorporating Israel into “Palestine.” This irredentist incorporation was already codified on all PA and Hamas maps. The most unambiguous Palestinian call for the removal of Israel remains the PLO’s “Phased Plan” of June 9, 1974. Under the authoritative laws of war, this Plan represents an unhidden commitment to carry out various crimes of war and against humanity.
[6] The obligation to use armed force in a world of international anarchy forms the central argument of Realpolitik, from the Melian Dialogues of Thucydides to Cicero, Machiavelli, Locke, Spykman, and Kissinger: “For what can be done against force without force?” asks Cicero in one of his Letters. Later, in the 20th century, Nicholas Spykman replied: “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.”
[7] Under international law, terrorists are always hostes humani generis, or “common enemies of mankind.” See: Research in International Law: Draft Convention on Jurisdiction with Respect to Crime, 29 AM J. INT’L L. (Supp. 1935) 435, 566 (quoting King V. Marsh (1615), 3 Bulstr. 27, 81 Eng. Rep 23 (1615) (“a pirate est Hostes humani generis”)).
[8] Under international law, the question of whether or not a true “state of war” exists is generally ambiguous. Traditionally, it was held that such a true condition could obtain only between states, and that a formal declaration of belligerency was necessary before this state of war could exist. Hugo Grotius divided wars into declared wars, which were legal, and undeclared wars, which were not. (See Hugo Grotius, The Law of War and Peace, Bk. III, Ch. III, IV, and XI.) By the start 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. This treaty stipulated that hostilities must never commence without a “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.) Certain declarations of war may be tantamount to admissions of international criminality because of the express criminalization of aggression by authoritative international law, and it could therefore represent a clear jurisprudential absurdity to tie any true state of war to formal and prior declarations of belligerency. It follows, inter alia, that a state of war may now exist without any formal declarations, but only if there exists an actual armed conflict between two or more states, and/or at least one of these affected states considers itself “at war.” Nonetheless, as a more practical matter in Israel’s ongoing struggle against sub-state terror proxies of Iran, current fighting against Hamas in Gaza and Hezbollah in Lebanon/Syria represent derivative wars against an enemy state.
[9] Even if a perfect interception capability were possible, it would not be enough to ensure Israel’s overall success. Says Carl on Clausewitz: “Defensive warfare does not consist of waiting idly for things to happen. We must wait only if it brings us visible and decisive advantages. That calm before the storm, when the aggressor is gathering new forces for a great blow, is most dangerous for the defender.” (See Principles of War, 1812). A similarly timeless argument was made much earlier by ancient Chinese military thinker Sun-Tzu in The Art of War: “Those who excel at defense bury themselves away below the lowest depths of Earth. Those who excel at offense move from above the greatest heights of Heaven. Thus they are able to preserve themselves and attain completer victory.” See also by this writer, Louis René Beres, at Harvard Law School, Harvard National Security Journal: https://harvardnsj.org/2013/10/24/lessons-for-israel-from-ancient-chinese-military-thought-facing-iranian-nuclearization-with-sun-tzu/
[10] Expressions of enemy irrationality could take different or overlapping forms. These 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).
[11] Rationality and irrationality have very specific meanings. More precisely, an actor (state or sub-state) is presumed determinedly rational to the extent that its leadership always values national survival more highly than any other conceivable preference or combination of conceivable preferences. Conversely, an irrational actor might not always display such a determinable preference ordering.
[12] For early scholarly examinations of anticipatory self-defense, by this author and with particular reference to Israel, see: Louis René Beres, “Preserving the Third Temple: Israel’s Right of Anticipatory Self-Defense Under International Law,” VANDERBILT JOURNAL OF TRANSNATIONAL LAW, Vol. 26, No. 1, April 1993, pp. 111- 148; Louis René Beres, “After the Gulf War: Israel, Preemption and Anticipatory Self-Defense,” HOUSTON JOURNAL OF INTERNATIONAL LAW, Vol. 13, No. 2, Spring 1991, pp. 259 – 280; Louis René Beres, “Striking `First’: Israel’s Post-Gulf War Options Under International Law,” LOYOLA OF LOS ANGELES INTERNATIONAL AND COMPARATIVE LAW JOURNAL;, Vol. 14, Nov. 1991, pp. 1 – 24; Louis René Beres, “Israel and Anticipatory Self-Defense,” ARIZONA JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW, Vol. 8, 1991, pp. 89 – 99; 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; and Louis René Beres, “Israel, Force and International Law: Assessing Anticipatory Self-Defense,” THE JERUSALEM JOURNAL OF INTERNATIONAL RELATIONS, Vol. 13, No. 2, 1991, pp. 1 – 14. For an early examination of assassination, as a permissible form of anticipatory self-defense, by Israel, see Louis René Beres, “On Assassination as Anticipatory Self-Defense: The Case of Israel,” HOFSTRA LAW REVIEW, Vol. 20, No. 2, winter 1991, pp. 321 – 340.
[13] Punishment of aggression is a firm and longstanding expectation of international criminal law. The peremptory principle of Nullum Crimen sine poena, “No crime without a punishment,” has its origins in the Code of Hammurabi (c. 1728 – 1686 B.C.E.); the Laws of Eshnunna (c. 2000 B.C.E.); the even earlier Code of Ur-Nammu (c. 2100 B.C.E.) and the law of exact retaliation, or Lex Talionis, presented in three separate passages of the Torah.
[14] Biological weapons may be of less immediate concern for Israel than chemical weapons. Although a growing number of countries have or are currently developing capabilities to employ living organisms (such as anthrax, Lassa fever, or typhus, as opposed to inert toxins), such capabilities have limited military value. This is because their dispersal mechanisms are difficult to manage; a change of wind can make them as lethal to the attacker as to the intended victim; and because it is difficult to sustain the living organism in biological weapons in hot climates for long periods. At the same time, precisely because biological weapons are better suited for mass destruction than for use as dedicated military instruments, they could hold out greater appeal to Israel’s more-or-less discernibly irrational enemies.
[15] See by this author: Louis René Beres, “Martyrdom and International Law,” Jurist, September 10, 2018; and Louis René Beres, “Religious Extremism and International Legal Norms: Perfidy, Preemption and Irrationality,” Case Western Reserve Journal of International Law, Vol. 39, No.3., 2007-2008, pp. 709-730. There are pertinent explanations for such thinking that would bring Israeli analysts back to the “microcosm,” to the individual human being who seeks through violence a sanctified path to personal immortality. In his posthumously published lecture on Politics (1896), German historian Heinrich von Treitschke observed: “Individual man sees in his own country the realization of his earthly immortality.” Earlier, German philosopher Georg Friedrich Hegel opined, in his Philosophy of Right (1820), that the state represents “the march of God in the world.” The “deification” of Realpolitik, a transformation from mere principle of action to a sacred end in itself, drew its originating strength from the doctrine of sovereignty advanced in the sixteenth and seventeenth centuries. Initially conceived as a principle of internal order, this doctrine underwent a specific metamorphosis, whence it became the formal or justifying rationale for international anarchy – that is, for the global “state of nature.” First established by Jean Bodin as a juristic concept in De Republica (1576), sovereignty came to be regarded as a power absolute and above the law. Understood in terms of modern international relations, this doctrine encouraged the notion that states lie above and beyond any form of legal regulation in their interactions with each other.
[16] To enhance nuclear deterrence at the high-end of the conflict continuum, Israel should also consider “going public” with helpful details about its plausible “Samson Option.” The goal of any such option would not be to “die with the Philistines,” per the biblical Book of Judges, but to underscore that any enemy attempt to annihilate the Jewish State, whatever the particular moment of conflict, would result in the state or sub-state aggressor’s own destruction.
[17] Embedded in attempts to achieve this success would be variously credible threats of “assured destruction.” This term references ability to inflict “unacceptable damage” after absorbing an attacker’s first strike. In the traditional nuclear lexicon, mutual assured destruction (MAD) describes a stand-off condition in which an assured destruction capacity is possessed by both (or all) opposing sides. Counterforce strategies would be those which target only an adversary’s strategic military facilities and supporting infrastructure. Such strategies could be dangerous not only because of the “collateral damage” they might produce, but also because they could heighten the likelihood of first-strike attacks. Collateral damage would refer to harms done to human and non-human resources as a consequence of strategic strikes directed at enemy forces or military facilities. Even such “unintended” damage could quickly involve large numbers of casualties/fatalities.
[18] The origins of modern international law lie in the Peace of Westphalia (1648). 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. This “Westphalian” anarchy stands in stark contrast to the legal assumption of solidarity between all states in the presumably common struggle against aggression and terrorism. Such a peremptory expectation (known formally in international law as a jus cogens assumption), is already mentioned in Justinian, Corpus Juris Civilis (533 C.E.); 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).
[19] These coinciding legal expectations, central to the law of armed conflict (humanitarian international law) have early jurisprudential and philosophic origins in the Biblical Lex Talionis, the law of exact retaliation. The “eye for eye, tooth for tooth” injunction (not the same as the principle of “proportionality” in current international law) 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.
[20] Iran, unlike Israel, is a party to the 1968 Nonproliferation Treaty (NPT), and has thereby lawfully bound itself never to threaten, build or use nuclear weapons.
[21] On “escalation dominance,” see article by Professor Louis René Beres at The War Room, US Army War College, Pentagon: https://warroom.armywarcollege.edu/articles/nuclear-decision-making-and-nuclear-war-an-urgent-american-problem/ See also, by this author, Louis René Beres: https://smallwarsjournal.com/jrnl/art/united-states-nuclear-strategy-deterrence-escalation-and-war
[22] Still, see: Anatol Rapoport, Strategy and Conscience (1964). Says Rapoport, in an early observation that now applies usefully to Israel: “Formal decision-theory does not depend on data…. The task of theory is confined to the construction of a deductive apparatus, to be used in deriving logically necessary conclusions from given assumptions.”
[23] This would include certain law-based considerations of “anticipatory self-defense.” This permissible option can be found in customary international law. The most precise origins of anticipatory self-defense in such authoritative law lie in The Caroline, a case that concerned the unsuccessful rebellion of 1837 in Upper Canada against British rule. Following this case, the serious threat of armed attack has generally justified certain militarily defensive actions. In an exchange of diplomatic notes between the governments of the United States and Great Britain, then U.S. Secretary of State Daniel Webster outlined a framework for self-defense that did not require an antecedent attack. Here, the jurisprudential framework permitted a military response to a threat so long as the danger posed was “instant, overwhelming, leaving no choice of means, and no moment for deliberation.” See: Beth M. Polebaum, “National Self-defense in International Law: An Emerging Standard for a Nuclear Age,” 59 N.Y.U.L. Rev. 187, 190-91 (1984) (noting that the Caroline case had transformed the right of self-defense from an excuse for armed intervention into a legal doctrine). Still earlier, see: Hugo Grotius, Of the Causes of War, and First of Self-Defense, and Defense of Our Property, reprinted in 2 Classics of International Law, 168-75 (Carnegie Endowment Trust, 1925) (1625); and Emmerich de Vattel, The Right of Self-Protection and the Effects of the Sovereignty and Independence of Nations, reprinted in 3 Classics of International Law, 130 (Carnegie Endowment Trust, 1916) (1758). Also, Samuel Pufendorf, The Two Books on the Duty of Man and Citizen According to Natural Law, 32 (Frank Gardner Moore., tr., 1927 (1682).
Louis René Beres was educated at Princeton (Ph.D., 1971). He is the author of many major books and monographs dealing with nuclear strategy and nuclear war, including Surviving Amid Chaos: Israel’s Nuclear Strategy (Rowman and Littlefield, 2016/2018); Terrorism and Global Security: The Nuclear Threat (Westview, 1979); Apocalypse: Nuclear Catastrophe in World Politics (The University of Chicago Press,1980); Mimicking Sisyphus: America’s Countervailing Nuclear Strategy (D.C. Heath/Lexington, 1983); and Security or Armageddon: Israel’s Nuclear Strategy (D.C. Heath/Lexington, 1986). His articles have appeared in The New York Times; The Atlantic; Bulletin of the Atomic Scientists; The Jerusalem Post; Harvard National Security Journal (Harvard Law School); International Security (Harvard University); JURIST; Israel Journal of Foreign Affairs; Parameters: Journal of the US Army War College (Pentagon); Air-Space Operations Review (USAF); The War Room (Pentagon); Modern War Institute (West Point); and International Journal of Intelligence and Counterintelligence. He has lectured on law and strategy issues at United States and Israeli military/intelligence institutions. In Israel, his monographs have been published at BESA; INSS; Tel-Aviv University and ISRAEL DEFENSE (Tel Aviv). Professor Beres is a seven-times contributor to the annual Oxford Yearbook on Jurisprudence and International Law (Oxford University Press). In Israel, he was Chair of “Project Daniel” (PM Sharon, Iranian nuclearization) 2003-2004. Louis René Beres was born in Zürich at the end of World War II.