If and when to strike first – A guest essay on Israeli preemption

IF AND WHEN TO STRIKE FIRST

ISRAEL, PREEMPTION AND ANTICIPATORY SELF-DEFENSE

Louis René Beres (Ph.D., Princeton, 1971)

Emeritus Professor of International Law

Purdue University

Abstract: “The safety of the people,” declares Cicero in The Laws, “is the highest law.” For Israel, this sensible declaration has always been sacred. The core issues surrounding Iran’s still-accelerating nuclear weapons program have been more strategic and political than legal. Still, if Israel should ever decide that it no longer has any reasonable alternative to launching a preemptive attack against selected Iranian military/industrial targets (a decision that would likely involve various Hezbollah personnel and assets), this defensive first-strike would also need to be justified under authoritative international law. Here, Professor Beres, who was Chair of Project Daniel (Israel, PM Sharon, 2003), analyzes Israel’s right and capacity to act in anticipatory self-defense against an increasingly formidable near-nuclear adversary, one that has several times expressed conspicuous genocidal intentions.[i]

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Background of a Protracted Crisis: Israel, Iran and the “State of Nature”

In conceptual terms, world politics remains in a state of nature, in what earlier philosophers called a “state of war.”[ii] Within this state of continuous anarchy[iii] – a bellum omnium contra omnes or “war of all against all” – international law[iv] must operate in decentralized or vigilante form. Inter alia, this “Westphalian” dynamic describes a “self-help” system of global power management.[v]

Though codified norms don’t usually allow states to strike first in self-protection, the law of nations does permit certain residual acts of “anticipatory self-defense” under customary international law.[vi]

Some defensive first strikes or “preemption” could be considered permissible in variously threatening circumstances. But even if such a resort to anticipatory self-defense could sometimes be deemed lawful, it might still prove unreasonably dangerous, strategically misconceived and/or tangibly ineffectual.

Subsidiary questions should arise. What are the implications of such contradictions for Israel, a nuclear mini-state now increasingly imperiled by a rapidly nuclearizing Iran? Before Israel could ever decide rationally on invoking a calculated strategy of preemption vis-à-vis Iran, it’s leading policy makers and strategists would first need to assess this strategy according to separate or bifurcated criteria of appraisal: law and strategy.

There will be multiple complexities. At some point, Israel could decide that a preemptive strike against selected hard Iranian targets (i.e., weapons/weapons infrastructures) would be convincingly legal, but still not be expected to “work.” Alternatively, Jerusalem could conclude that any such considered strike would be promising or gainful in operational terms, but still be more-or-less plainly illegal.

What then?

There is more. For Israel, a danger of waiting too long is that Tehran could implement various protective measures that pose additional hazards. Deigned to guard against an Israeli preemption, these measures could involve the attachment of “hair trigger” launch mechanisms to Iranian nuclear weapon systems and/or the adoption of “launch on warning” policies, possibly even coupled with worrisome pre-delegations of launch authority.

What then?

What Would Constitute a Lawful Preemption

Optimally, Israel would do everything possible to prevent such destabilizing steps, especially because of the corollary risks of accidental or unauthorized attacks launched against its armaments and/or populations. Nonetheless, if such steps were ever to become a fait accompli, Jerusalem might still calculate correctly that a preemptive strike would be both lawful and necessary. This consequential judgment would owe to the following reasoning: An expected Iranian retaliation, however damaging, could still be more tolerable than the plausibly expected consequences of Iranian first-strikes.

Some points are axiomatic. In its present jurisprudential form, Israel, which “began” in 1948,[vii] will last only as long as its leaders remain attentive to Cicero’s primal warning about national “safety.”[viii] Significantly, such an indispensable attentiveness could be consistent with the authoritative expectations of international law.[ix]

International law is never a suicide pact. Israel’s basic security problems with specific Arab states and Iran could compel Jerusalem to decide once again between waiting for its enemies to strike first[x] or strike first itself.  When judged from a strategic and tactical perspective, the choice of a preemption option could sometime appear rational and cost-effective to Israel.[xi]

From the coinciding standpoint of international law, preemption might also represent a permissible option.  In this connection, though subject to important constraints and conditions, the right of “anticipatory self-defense” is already well established under international law.[xii]

An Israeli Decision to Preempt

What does the ascertainable convergence of strategic and jurisprudential assessments of preemption say about Israel’s prospective calculations on striking first?  It suggests, among other things, that Israel need not be deterred from undertaking security-maximizing forms of preemption out of fear that its actions would be described as criminal.[xiii] Although a substantial number of states would condemn Israel for “aggression”[xiv]  under virtually any circumstances, this particular charge – so long as Israel’s preemptive strikes met the expectations of jus ad bellum (justice of war) and jus in bello (justice in war)[xv] – could be countered authoritatively by informed references to international law.

In jurisprudence, as in certain other realms, history deserves an evident pride of place, The right of self defense by forestalling an attack appears in Hugo Grotius’ Book II of The Law of War and Peace in 1625.[xvi]  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.”[xvii]  Or, as he explains a bit further on in the same chapter, “It be lawful to kill him who is preparing to kill….”[xviii]

A similar position was taken by Emmerich de Vattel.  In Book II of The Law of Nations (1758), Vattel argues:  “The safest plan is to prevent evil, where that is possible.  A Nation has the right to resist the injury another seeks to inflict upon it, and to use force and every other just means of resistance against the aggressor.  It may even anticipate the other’s design, being careful, however, not to act upon vague and doubtful suspicions, lest it should run the risk of becoming itself the aggressor.”[xix]

Grotius[xx] and Vattel parallel the Jewish interpreters, although the latter speak more generally of interpersonal relations than about international relations. Additionally, the Torah contains a prominent provision exonerating from guilt a potential victim of robbery with possible violence if, in self defense, he struck down and if necessary even killed the attacker before he committed any crime.  (Ex.  22:1). In the precise words of the rabbis, “If a man comes to slay you, forestall by slaying him!”  (Rashi; Sanhedrin 72a).

Grotius and Vattel both caution against abusing the right of anticipatory self defense as a pretext for aggression,[xxi] but this is an abuse that Israel, in its current relationship with Iran, could commit.  As Iran seemingly considers itself in a condition of war with Israel, any Israeli preemption against this nuclearizing adversary would not represent an authentic act of anticipatory self-defense, but just one more military operation in an ongoing or protracted war.  It follows further, in such circumstances, that the Israeli military operation’s legality[xxii] would have to be appraised in terms of its apparent conformance or nonconformance with the relevant laws of war of international law (jus in bello).[xxiii]

Jurisprudentially, to identify any such operation as an act of aggression against another state that already considered itself at war with Israel, would be nonsense.[xxiv]

Background of Preemption in Law

Even if Iran  were not in a verifiable condition of belligerence with the Jewish state, a condition periodically amplified by Tehran’s open calls for Israel’s destruction,[xxv] an Israeli preemptive action could still prove to be law-enforcing.  Israel, in the fashion of every state under world law, is peremptorily entitled to existential self-defense.  Today, in an age of uniquely destructive weaponry, international law does not require Israel or any other state to expose its citizens to atomic annihilation.[xxvi]

The right of self-defense, we learn from Vattel, gives rise to the “right to resist injustice.”  According to the writer’s argument at Chapter V of the Law of Nations, or the Principles of Natural Law (1758), “On the Observance of Justice between Nations:”

Justice is the foundation of all social life and the secure bond of all civil intercourse.  Human society, instead of being an interchange of friendly assistance, would be no more than a vast system of robbery if no respect were shown for the virtue which gives to each his own.  Its observance is even more necessary between Nations than between individuals, because injustice between Nations may be followed by the terrible consequences involved in an affray between powerful political bodies, and because it is more difficult to obtain redress….  An intentional act of injustice is certainly an injury.  A Nation has, therefore, the right to punish it…. The right to resist injustice is derived from the right of self-protection.[xxvii]

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).[xxviii]  Following this landmark event, the serious threat of armed attack has generally been taken to justify a state’s militarily defensive action.  In an exchange of diplomatic notes between the governments of the United States and Great Britain, then U.S. Secretary of State Daniel Webster outlined a framework for self defense which did not require an actual attack.[xxix]  Here, military response to a threat was judged permissible so long as the danger posed was “instant, overwhelming, leaving no choice of means and no moment for deliberation.”[xxx]

In certain distinctly residual circumstances, permissible forms of anticipatory self-defense could be expressed via assassination/targeted killing (although classical philosophical and jurisprudential arguments supporting assassination are usually cast  more narrowly in terms of a tyrannicide motif).[xxxi]  Representing an alternative or addition to standard military forms of preemption, such targeted killing,[xxxii] in order to be consistent with appropriate international legal expectations, would need to be undertaken when the danger posed to Israel actually met the specific test of the Caroline.  Accordingly, if the targeted killing were undertaken only to destroy the potential threat of an enemy, i.e., as a preventive action, it would not qualify as permissible in law.

If, however, the assassination were undertaken in anticipation of some immediate enemy aggression, i.e. as a preemptive action, it could still qualify as “anticipatory self-defense.”[xxxiii]

There are several antecedent problems.  First, in the “real world,” judgments concerning the immediacy of anticipated aggression are exceedingly difficult to make.  Second, even where such judgments are ventured, it can never 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 is “instant, overwhelming, leaving no choice of means and no moment for deliberation.”

Some scholars argue that the customary right of anticipatory self defense articulated by the Caroline has been overridden by the specific language of Article 51 of the UN Charter.[xxxiv]  In this view, Article 51 fashions a new and more restrictive statement of self defense, one that relies on the literal qualification contained at Article 51, “….if an armed attack occurs.”  Still, this interpretation ignores that international law cannot compel a state to wait until it absorbs a devastating or lethal first strike before acting to protect itself.[xxxv]

“The safety of the people shall be the highest law.”

There is more. The argument against a more restrictive view of self-defense is reinforced by the evident weaknesses of the U.N. Security Council in offering collective security against an aggressor.  Both the Security Council and the General Assembly refused to censure Israel for its 1967 preemptive attack against certain belligerent Arab states. Inter alia, this refusal signified implicit approval by the United Nations of Israel’s 1967 resort to anticipatory self defense.[xxxvi]

Before Israel could persuasively argue any future instances of anticipatory self defense under international law, however, a strong case would have to be made that Jerusalem had first sought to exhaust all available means of peaceful settlement. Even a very broad view of anticipatory self defense cannot relieve a state of peremptory obligations codified at Article 1 and at Article 2(3) of the UN Charter.[xxxvii] Strictly speaking, these obligations should not necessarily be binding upon Israel because of the de facto condition of belligerency sustained by Iran,[xxxviii]  but the global community generally seems to have ignored this apparent state of war.  It follows that Israel, should it ever decide upon exercising future instances of “preemption” against Iran, would be well advised to demonstrate its own consistent and comprehensive prior efforts at peaceful settlement.

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LOUIS RENÉ BERES is Emeritus Professor of Political Science and International Law at Purdue University. Educated at Princeton (Ph.D., 1971), he is the author of twelve major books dealing with international relations, military strategy and world affairs. Dr. Beres was born in Zürich, Switzerland, on August 31, 1945, and lectures and publishes widely on issues of terrorism, counter-terrorism, nuclear strategy and nuclear war.  He has consulted for several agencies of government on security matters and is a contributor to leading American, European and Israeli newspapers and magazines, including The Jerusalem Post; Ha’aretz; The New York Times; The Washington Post; Los Angeles Times; US News & World Report; and The Atlantic.  In Israel, he was Chairman of Project Daniel (2003) and has been a contributor to the annual Herzliya Conference Working Papers on strategy. Professor Beres’ scholarly articles and monographs have been published in more than fifty major law and strategy journals, including The American Journal of International Law; World Politics (Princeton); International Security (Harvard University); Air-Space Operations Review (USAF); The Harvard National Security Journal (Harvard Law School); Yale Global (Yale); The Bulletin of the Atomic Scientists; JURIST; Special Warfare (Department of Defense); Jewish Business News; Jewish Website; Parameters: The Journal of the U.S. Army War College; The Israel Journal of Foreign Affairs; The Brown Journal of World Affairs; Oxford University Press (Oxford Annual Yearbook of International Law and Jurisprudence);  The War Room (Pentagon); Modern War Institute (West Point); INSS (Tel Aviv); The National Interest; Horasis (Zürich);  and the International Journal of Intelligence and Counterintelligence. Professor Beres’ work is well-known to senior strategic and intelligence communities in both Israel and the United States.

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[i]See: https://www.un.org/en/genocideprevention/genocide.shtml

[ii] 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. Rather, nuclear weapons are continuously bringing the state of nations closer to a true Hobbesian state of nature.

[iii] The de facto global 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. This idealized assumption concerns a presumptively common struggle against both aggression and terrorism. This “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).

[iv] 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 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.

[v] This concept underlies the present author’s first published book on these world security-centered issues: Louis René Beres, The Management of World Power: A Theoretical Analysis, University of Denver, 1973.

[vi] 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).

[vii] 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.”

[viii] In these times, Israeli planners ought also to consider a discernible drift toward global “chaos.” 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 one of disarray or declension.

[ix] International law is partially educible from natural law.

[x].Should Israel decide to wait for its Iranian enemies to strike first, the Jewish State would likely maintain its traditional stance of disproportionately severe reactions to major aggressions, reactions that may represent an inversion of the Lex Talionis.  This 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.

[xi].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.

[xii].See, for example, M. McDougal, The Soviet-Cuban Quarantine and Self-Defense, 57 AM. J. INT’L L. 597, 598-600 (1963) (acknowledging that prior to the U.N. Charter, the right of anticipatory self-defense was customary international law); P. JESSUP, A MODERN LAW OF NATIONS 166 (1948) (noting that the right of self-defense under customary international law included anticipatory actions against “imminent threats”).

[xiii]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).

[xiv] 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.

[xv].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.

[xvi].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.

[xvii].Id. at 173-74.

11.Grotius’ terminology here 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).

[xix].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.

[xx].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.

[xxi].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).

[xxii].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.

[xxiii].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.

[xxiv].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).

[xxv].There is nothing new about such calls concerning Israel’s existence.  From the first, Arab states, and more recently, Iran, have 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).

[xxvi].It is arguable, at least in principle, that an Israeli non-nuclear preemption would be the best way to reduce the risk of regional nuclear war.  This follows from the assumption that if Israel waits for its enemies to strike first, these enemies could launch nuclear attacks, or, even if they should strike first with conventional weapons, Israel would have no choice but to resort to nuclear retaliation. To the extent that this is indeed the case, the reasonableness/legality of Israeli non-nuclear preemption would be enhanced.  Here, Jerusalem’s commitment to anticipatory self-defense would be law-enforcing.

[xxvii].See Vol. 3, tr. by Charles G. Fenwick, Washington, D.C., The Carnegie Institution of Washington 1916, p. 135.

[xxviii].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).

[xxix].See id. at 191 (cited Jennings, The Caroline and McLead Cases, 32 AM. J. INT’L L. 82, 90 (1938)) [hereinafter Jennings].

[xxx].See id., at 89.

[xxxi].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.”  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.

[xxxii] 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.

[xxxiii].Assessments of the lawfulness of assassination/targeted killing as anticipatory self-defense must always include proper comparisons with alternative forms of preemption.

[xxxiv].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).

[xxxv].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, Vol. II, tr., by Frank Gardner Moore, New York:  Oceana Publications, Inc., 1964, p. 32.

[xxxvi]In the final analysis, the extant system of international law remains a “vigilante” or “Westphalian” system.

[xxxvii].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 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.

[xxxviii] The formal Iranian position on a state of war with Israel is unclear. If, however, Tehran did start to make it clear that it does regard its bilateral relationship with Israel as one of belligerency, a state of war would then legally obtain in spite of the fact that Israel itself would still consider itself to be in a “state of peace.”