Abstract: Israel and Iran remain poised for a multi-level war. Such conflict could become nuclear even if Iran were to remain non-nuclear. This generally-overlooked observation owes to an inevitably ensuing competition in risk-taking. To wit, any war between Israel and Iran will unleash an unpredictable struggle for “escalation dominance.”
In extremis, Israel could decide to fire some of its nuclear weapons and escalate to an “asymmetrical nuclear war.” But if Iran should become operationally nuclear during its conflict with Israel, any subsequent launch of nuclear weapons could become bilateral. In such an unprecedented exchange, even one in which there would be conspicuous differences in nuclear power position, the region would experience a “symmetrical nuclear war.”
In the end, what happens regarding such synergistic and potentially existential harms to Israel would depend significantly on the “Westphalian” structure of world politics. By definition, this signifies an anarchic context wherein (per Thomas Hobbes’ Leviathan) there would be “no common power” above states “to keep them in awe.” In such an unalterably decentralized setting – the “state of nations” is not about to depart from the “state of nature” – credible nuclear deterrence would represent Israel’s last decipherable chance for survival.
***
“Where there is no common Power, there is no Law.”- Thomas Hobbes, Leviathan (1651), Ch. XIII
Even today, world politics and international law operate in a seventeenth-century “Westphalian” context.[i] In essence, this signifies an anarchicsetting, one without any war-controlling benefits of a centralized global authority. Leaving aside nuclear weapons (Israel is already nuclear; Iran is almost nuclear), the extant “state of nations” remains basically the same setting famously identified by Thomas Hobbes in Leviathan (1651).[ii]
What does this rigid continuance mean for Israel and the wider Middle East? How shall Israel best prepare for credible nuclear deterrence where there is “no common power”? If Israel should decide that it no longer maintains any reasonable self-defense alternative to launching military attacks against selected Iranian hard targets, those preemptive strikes would require justification in both strategic andlegal terms. How should such justification be explained?
There are many sides to a coherent answer. Israel’s residual options include a peremptory[iii] national right to act in “anticipatory self-defense” against a determinedly hostilenear-nuclear adversary. On multiple and well-documented occasions, Iran has expressed openly genocidal intentions toward the Jewish State.[iv] For those who might not yet know, Israel is literally half the size of America’s Lake Michigan.
There are variously pertinent particulars. 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 launching such strikes must always remain subjective. The following assessment focuses on the relevant, binding and intersecting rules of “Justice of War” (Jus ad bellum) and “Justice in War” (Jus in bello), and: (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. Of logical necessity, this assessment further considers more-or-less plausible military alternatives to anticipatory self-defense, notably longer-term strategies of credible nuclear deterrence.[v]
There is much more to introduce. All elements are presented from determinably intellectual standpoints of strategy and law. In no circumstances should such elements be interpreted ipso facto as derivative recommendations for any general or specific Israeli preemption. In reading and evaluating this comprehensive analytic argument, policy-centered readers should bear in mind that any Israeli defensive military strike ought always to remain a last-resort security option but also that Israel is rapidly nearing an irreversible last resort.
As should be expected in such a time-urgent exegesis, the particulars will accumulate. In principle, at least, world politics and world law operate together, in tandem, as a system. Accordingly, nuclear weapons-related developments in other parts of the world could affect the prospects of a nuclear conflict arising in the Middle East. A current example could center on any escalating geo-strategic crisis between Russia and the United States concerning Vladimir Putin’s multiplying aggressions against Ukraine. Another example would be nuclear crisis developments (whether anticipated or unanticipated) in North Korea, China, India or Pakistan.
In a still manageable world legal order, nuclear weapons will serve Israel via reason-based non-use. This broadly underlying argument goes back to Sun-Tzu’s classic Art of War: “The greatest victory is that which requires no battle.” The ancient Chinese strategist’s maxim is palpably more urgent today than it was in Sun-Tzu’s own time.
.
Strategic Decision-Making in the Global “State of Nature”
In setting the stage for a coherent understanding of world politics, Thomas Hobbes’ Leviathan argues deductively that there can be no law in a “state of nature.” A more accurate assessment would stipulate that law and anarchycan coexist (at least by definition), but that decentralized law enforcement[vi] has traditionally had to rely on perilous stratagems of “self-help.”[vii] Moreover, within this condition of continuous decentralization[viii] – a bellum omnium contra omnes or “war of all against all” – international law[ix] necessarily represents a “vigilante” system of global power management.[x]
As the “safety of the people” must always represent “the highest law” (per Cicero, De republica/The Republic), global rules can never call upon individual nation-states to accept their own destruction. An expressly nuclear variant of this binding conclusion can be discovered at the International Court of Justice (ICJ) ruling of July 8, 1996. This advisory opinion merely reinforces expectations and allowances of pre-existing Natural Law.
Contextually for Israel and Iran, that is the “big picture.” But there are also abundant and nuanced details to be considered. Though codified norms do not normally allow states to strike first in self-protection, the Law of Nations does permit particular acts of “anticipatory self-defense” under customary international law.[xi] In extremis, defensive first strikes or “preemption” could be considered permissible. [xii]
Legal and strategic criteria should always remain separate or discrete. Even if a particular resort to anticipatory self-defense could be deemed lawful, it might still be unreasonably dangerous or tangibly ineffectual. Understood in the context of the present argument, this means that assorted Israeli strategies of preemption against Iran should always represent a stratagem of last resort but nonetheless be considered with appropriate urgency and seriousness.
What are the most salient implications of these considerations for Israel, a nuclear mini-state imperiled by a near-nuclear Iran? To begin, before Israel could ever decide rationally to invoke a strategy of preemption, its designated policy makers and strategists would need to understand that their judgments concerning the expected probability of success would necessarily be based on dialectically-reasoned logical deductions Because the circumstances in question would be unique or unprecedented, there could be no properly objective or scientific assessments of probability.
Ultimately, such points concerning philosophy of science or scientific method will be all-important to understand. Why exactly? The answer is plain: For clarifying examples, there would exist no previous events for Israeli decision-makers to draw upon. The considered action would essentially be sui generis.
The “rules” in such daunting matters are always unassailable. In science, the task of rendering predictive statements about event likelihood or probability can never be advanced ex nihilo. Rather, this task must be based on the determinable frequency of relevant 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 involve potentially existential retaliations.
Iran is not yet operationally nuclear.[xiii] Still, that adversary does maintain an evident capacity to aggregate significant military operations against Israel.[xiv] This capacity includes force-multiplying proxy assaults by Hezbollah.[xv] Among other things, such strikes could be synergistic. Here, the “whole” of any expectedly destructive effects would be greater than the calculable sum of its constituent “parts.” From a philosophy of science standpoint, this is not a hypothesis, but rather an analytic assumption that is true by definition.
Foreseeable Implications of Time-Delay
For Israel, a delayed preemption could prove lethal. One danger of “waiting too long” is that Tehran could implement protective measures that would then pose additional military hazards.[xvi] 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 (ones possibly coupled with variously fragile pre-delegations of launch authority.) All such Iranian enemy activity would signify still-increasing dangers to Israel and could represent the result of steps taken by a nearly-nuclear Iran to prevent Israeli defensive-strikes.
Optimally, Israel, in part because of corollary risks of accidental or unauthorized attacks against its armaments and/or civilian populations, would do everything possible to prevent certain enemy protective measures. Still, if such steps were 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, could still appear more tolerable than the expected consequences of Iranian first-strikes.
Going forward, Israel will take into careful account the prospects of an Iranian enemy equipped with hypersonic weapons and the corollary difficulties of defending against such weapons with 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-based system of layered active defenses could sometime be reduced in life-saving effectiveness. The tangible consequences of any such reduction would vary according to whether the adversarial hypersonic missile(s) had been armed with nuclear or non-nuclear warheads. If ever facing Iranian nuclear-tipped missiles, anything less than a 100% reliability of intercept could be inadequate. At the same time, any such “rate of intercept” would be unachievable.
There are further attendant hazards. A space-based system of defenses against hypersonic missile attack would inevitably have “leakage.” This liability might prove tolerable contra Iran’s conventional warheads, but not against this enemy’s nuclear armed missiles.
What about “peremptory” legal standards? Despite philosopher Thomas Hobbes’ dismissal of law “where there is no common power,” Israel coexists with all other states in a vigilante-centered or “Westphalian” system of international law. In this universal system, of global power management, any last resort tactics of self-defensive force[xvii] could be lawful or even 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.[xviii] In its present political and jurisprudentially-recognized form, which began in 1948,[xix] 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,” says Cicero in The Laws. Though seemingly counter-intuitive, such attentiveness could be indispensable and still be consistent with the authoritative expectations of decentralized international law. These expectations are partially deducible from always-binding Natural Law.
There is more. International law is never a suicide pact. Very soon, Israel’s existential security problems[xx] with Iran[xxi] could compel Jerusalem to decide between waiting for Tehran to strike first[xxii] and striking first itself. Judged from a strategic and tactical perspective, the choice of a preemption option could appear plausibly rational and calculably cost-effective,[xxiii] yet still be the result of erroneous information, miscalculation and/or strategic self-deception.
Israel’s Bewildering Task: How to Calculate a Defensive First-Strike
What does the ascertainable convergence of strategic and jurisprudential assessments of preemption suggest about Israel’s eleventh-hour 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. Though a substantial number of nation-states would condemn Israel for “aggression”[xxiv] 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)[xxv] – could be countered authoritatively and effectively.
In complex jurisprudence, as in certain other matters, 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.[xxvi] 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.”[xxvii] Or, as he explains a bit further on in the same chapter, “It be lawful to kill him who is preparing to kill….”[xxviii]
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.”[xxix]
Appropriately, in view of present concerns, Grotius[xxx] 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.[xxxi] Nonetheless, this is an abuse that Israel, in its current relationship with Iran, could not plausibly commit. As Iran seemingly considers itself in a “state of war” with Israel,[xxxii] any Israeli preemption against this nuclearizing adversary would not represent an authentic act of anticipatory self-defense, but rather one more military operation in an already-ongoing war. It follows that such an operation’s legality[xxxiii] would have to be appraised solely in terms of its conformance with the authoritative laws of war of international law (Jus in bello).[xxxiv] To identify any defensive military operation as “aggression” when it is launched against a state that openly considers itself “at war” with Israel would express jurisprudential nonsense.[xxxv]
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 literal destruction,[xxxvi] Jerusalem’s preemptive action could still be law-enforcing. In the fashion of every state in world politics, Israel is peremptorily entitled to existential self-defense. 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.[xxxvii]
On its face, 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.[xxxviii]
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).[xxxix] 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.[xl] 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.”[xli]
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).[xlii] Representing either a distinct alternative or an addition to standard military forms of preemption, such targeted killing,[xliii] 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.[xliv]
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 have argued tenaciously 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.[xlv] 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.[xlvi] Reminds 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 and partisan prejudices of the United Nations regarding collective security operations against an aggressor. Both the UN Security Council and General Assembly refused to censure Israel for its 1967 preemptive attack against certain belligerent Arab states. This refusal signified implicit approval by the United Nations of Israel’s 1967 resort to anticipatory self-defense.
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 be binding on Israel because of the de facto and de jure condition of belligerency created by Iran, but the global community seems generally to have ignored this Iran-generated “state of war.”
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 [request for restitution or reparations] 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….[xlviii]
Looking over the many years of conflict between Israel and 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,” a problematic concept under formal international law.[xlix]
Israel and the 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.[l] 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, Israel would be well-advised to confine its legal rationale for all its military operations to “self-defense.” Ultimately, Israel must guard against not “only” aggression, but also genocide.
Genocide is a word with precise jurisprudential meaning. Codified at the Genocide Convention, a treaty [li] 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….”[lii] The key to understanding and identifying genocide lies in the phrase, “intent to destroy.” This phrase, of course, is a variant of the wider mens rea or “criminal intent.” In the current matter of indispensable Israeli retaliations for egregious Hamas crimes (crimes mentored and supported by Iran), all Palestinian casualties are the legal result of Palestinian “human shields” or “perfidy.”
Today, Iran prepares for an all-or-nothing war with Israel, one it seemingly hopes will send the Jewish State “into oblivion.” This is much more than a matter of a clever negotiating stance or over-heated rhetoric, but it does not necessarily mean Iranian irrationality or abnormality. Though Tehran’s ongoing nuclear preparations are designed with “intent to destroy” Israel altogether,[liii] these preparations are unlikely to be guided by barbarism or malice per se.
Iranian “intent” is also substantially more tangible than “just” a matter of perceived geopolitical necessity. It is, in essence, a profoundlyreligious 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.’”[liv]
Outside of non-Arab Iran, open support in the Arab world for genocide against “the Jews” remains a matter of historical record and planned policy. Even before establishment 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 operational 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.”[lv]
Palestinian Arabs, Arab states and Iran have never publicly criticized the Mufti’s complicity in the Holocaust. During the 1950s and 1960s, Hitler remained an enormously popular figure in the Islamic 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.”[lvi]
Overall, the complex security situation is fraught not only with unprecedented danger,[lvii] but also with considerable irony. Before Israel could ever 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 reverse such annihilationist aims. But even without expressed Iranian genocidal intent, Israel could not possibly afford to confront the risks of a determinedly irredentist Islamic state carved from its own still living body.[lviii] Always, as we have already learned from Cicero, “The safety of the people shall be the highest law.”
Israeli Preemption and “Palestine”
What if there is no near-term Israeli preemption against Iranian nuclear targets? Then, any UN codification of Palestine[lix] could affect Israel’s still-considered inclination to preempt. Because of Israel’s small size and corresponding lack of “strategic depth,” Jerusalem’s inclination to strike first at Iranian nuclear-related targets could become especially high.
Foer the immediate future, Israel should concentrate on shifting from “deliberate nuclear ambiguity” to “selective nuclear disclosure. But how would Israel’s leadership know that taking the bomb out of the “basement” had actually improved its deterrence posture? To a certain extent, the credibility of Jerusalem’s nuclear threats would be contingent on the perceived severity of different provocations. It might be believable if Israel were to threaten nuclear reprisals for provocations that endanger the physical survival of the Jewish state, but it would almost certainly not be believable to threaten such reprisals for relatively minor territorial infringements or terrorist incursions.[lx]
For Israel there will be other problems. To function successfully, Israel’s nuclear deterrent, even after being removed from the “basement,” would have to remain secure from Iranian first strikes. Israel must also remain wary of “decapitation,” of losing the “head” of its military command and control system because of calculated Iranian aggressions. Should Iran be unpersuaded by Jerusalem’s conspicuous move away from deliberate nuclear ambiguity, it might initiate such strikes as could effectively immobilize Israel’s “order of battle.”
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, if “selectively disclosed,” tilting toward counter-force could render 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 than counter-value options, they would also be more amenable to actual use.[lxi] Though this particular trade-off would presumptively enhance Israel’s nuclear deterrence posture, it would also likely enlarge risks of a nuclear war.
Any increasingly open war-fighting Iranian postures are apt to encourage prompt Israeli preemption. If Israeli counterforce-targeted nuclear weapons are actually fired, the resultant escalation could produce extensive counter-value exchanges. Even if such escalation were averted, the “collateral” effects of counterforce detonations could also prove devastating.
In making its con tenuous nuclear choices, Israel will have to confront a paradox. Credible nuclear deterrence[lxii] will always require “usable” nuclear weapons. If, after all, these weapons were patently inappropriate for achieving credible strategic objectives, they would not deter.[lxiii]
The more usable the weapons become in order to enhance nuclear deterrence, the more likely it is that they will sometime be fired. While this extrapolation 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 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.[lxiv]
Moving Beyond Israel’s “Bomb in the Basement”
More than anything else, Jerusalem’s should have good reason to believe that its Iranian adversary already acknowledgesIsrael’s full-range nuclear capability. Currently, the most critical questions about Israel’s nuclear deterrent are not about capability, but willingness. In brief, how likely is it that Israel, after launching non-nuclear preemptive strikes against Iranian hard targets, would respond to enemy reprisals with a nuclear counter-retaliation?
To answer such a 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 invite a nuclear counter-retaliatory blow.
What should Israel conclude? This depends upon its 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 plausibly bring upon Israel variously intolerable levels of destruction?
Depending upon the way in which the Iranian 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 in Tehran: Israel would be acting rationally by responding to enemy non-nuclear reprisals to Israeli preemptive attacks with a nuclear counter-retaliation. The persuasiveness of this assumption could be enhanced if Iranian reprisals were to involve chemical and/or biological weapons.
Israeli Nuclear Deterrence and a Limited Nuclear War
In a world system that continues to lack any centralized structure, credible nuclear deterrence will be integral to Israel’s security posture. Here, Jerusalem should pay close attention to links between such deterrence and a perceived Israeli willingness to escalateto a “limited nuclear war,” Such attention would be indicated whether or not Israel managed to remain the sole nuclear adversary in this unique conflict dyad.
A limited nuclear war would contain 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. Expectedly, 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[lxv] 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 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 the 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 direct its nuclear deterrent threats directly to 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.[lxvi]
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 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 a prior shift away 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. Without such a confirmable array, Israeli nuclear deterrence could be sorely diminished and fatally degraded.[lxvii]
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 allacts of existential or near-existential aggressions. Using more explicitly military parlance, Israel’s shift to apt forms of “selective nuclear disclosure” would bolster Jerusalem’s success in “escalation dominance.”[lxviii]
Limited Nuclear War as a Law-Based Strategic Option
International law is not a suicide pact. No state, including Israel, is under any legal obligation to renounce access to nuclear weapons. In certain residual or last-resort circumstances, even actual use of nuclear weapons could be lawful, but only to the extent that it was consistent with codified and customary expectations of distinction, proportionality, and military necessity.
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.”
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 “asymmetrical” form. At that relatively favorable point, Jerusalem would have no occasion to concern itself with Iranian achievement of “escalation dominance,” but only by its successful use of “limited nuclear war” threats to keep Iran non-nuclear. Because such use could also impact assorted non-nuclear threats from Iran, Jerusalem will need to continuously assess the potential nuclear deterrence advantages regarding (1) biological war or terror; (2) EMP attacks on major Israeli cities; and (3) 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 still “asymmetrical” in terms of war origin, such a scenario could come to represent de facto equivalence between actual nuclear fighting forces of Israel and North Korea or even de facto nuclear superiority of Pyongyang.
For Israel’s military intelligence directorates, there could be no science-based assessment of relevant probabilities. 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.
Finally, at some point and for 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 unique existential threat at almost any bearable cost, there is no logically irrefutable way to absolutely 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 include selected “limited nuclear war” options.
With informed intellectual reliability, Israeli planners will need to establish Iran’s expected nuclear “firebreaks.” As 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 views tactical or theater nuclear weapons merely as incrementally continuous with conventional, chemical and biological ordnance, not as the critical firebreak between conventional and nuclear weapons.
Historically, Putin’s current nuclear posture closely resembles that of the former Soviet Union. From this recognizable 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 a 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 physical survival, and should be undertaken with conspicuously conscientious note of nuclear war options. Candidly, this is not a task for politicians of any ideological stripe or for the authoritative professional class of “official” military planners. In essence, 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 of course a key difference. This time, the objective would not be to build a spectacularly advanced weapon, but rather to figure out how a perpetually beleaguered mini-state could best adapt an extant “ultimate weapon” to deterrence-based strategies of 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.
The bottom-line question is plain: 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 a Samson Option, and that any such use would necessarily stem from Jerusalem’s prior shift from “deliberate nuclear ambiguity.” At the same time, estimating probabilities of unique events is an inherently non-scientific enterprise, and a limited nuclear war would be without historical precedent. No frequencies of limited nuclear war are presently known or knowable, and no related systems of nuclear deterrence could be tested without inviting catastrophe ipso facto.
A related problem for Israeli thinkers and planners will have to do with variable notions of “victory.” Though it is certainly correct that such notions always 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 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 that they would be “net-gainful.”
Furthermore, it is possible that Israel could be “too successful” in its resort to “Samson threats” of a limited nuclear war. By rendering such threats increasingly believable, Jerusalem would be making more likely an actual limited nuclear war. Though ironic, this paradoxical argument assuredly “makes sense.”
What are pertinent final specifics of this Israeli deterrence issue? Following an imperative and prompt shift from “deliberate nuclear ambiguity” to “selective nuclear disclosure,” Jerusalem should proceed to clarify its (1) Samson Option as an adjunct to strategic deterrence (not as a last-resort spasm of visceral revenge); and (2) 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 supporting “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 mini-state’s persistently difficult past. Authoritative decision-makers in Jerusalem will now need to seek out “wise counsel” on the potential deterrence benefits stemming from threat-dynamics of a limited nuclear war. This obligation is exceptionally time-urgent.
Rationality and Non-Rationality in Strategic Decision-Making
All these referenced 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. The prospect of non-rational strategic judgments[lxix] in the region is always present, especially as the influence of Islamist/Jihadist ideology remains determinative among 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 sometime become overwhelming. Should such enemies be believed to hold nuclear weapons,[lxx] Israel might even decide, rationally, to launch a nuclear preemption against these enemy weapons. This would appear to be the only plausible circumstance in which a rational Israeli preemptive strike could be nuclear.
Iran should understand from all this that there are conditions wherein Jerusalem might decide to use its nuclear weapons. These conditions concern the warding off intolerable prospects of total defeat.[lxxi] Faced with imminent collective destruction, Israel’s leaders would do whatever is needed to survive as a Jewish state, including a resort to nuclear retaliation, nuclear counter-retaliation, nuclear preemption, or nuclear war-fighting.[lxxii]
Understanding Nuclear War Risks
What exactly would a nuclear war “mean”?[lxxiii] In short, even the most limited nuclear war would signal catastrophe.[lxxiv] The immediate effects of atomic explosion, thermal radiation, nuclear radiation, and blast damage would create intolerably wide swaths of death and devastation. In this connection, informed observers should remember the early prediction 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 would 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, even for years.
As the countries involved would have entered into war as modern industrial economies, their networks of highly interlocking and interdependent exchange systems would 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 would 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 high probabilities 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 was widely documented.[lxxv]
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 a nuclear war.
Plus, ca change, plus c’est la même chose. “The more things change, the more they remain the same.” Despite heroic steps to preserve the “Third Temple Commonwealth,” the current State of Israel remains subject to incessantly grave threats of harm.[lxxvi] At some now foreseeable point, Israel, notwithstanding international law’s formal presumption of juridical solidarity between states,[lxxvii] could have to face a fully nuclear and possibly non-rational Iran. Yet, even a fully-nuclear rational Iran would present Israel with wholly unacceptable hazards.
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Israeli Diplomacy and Ballistic Missile Defense at the Eleventh Hour
At this late stage, especially during an already ongoing pre-nuclear war, realistic defensive actions by Israel against Iran may not require any “bolt-from-the-blue” resort to anticipatory self-defense.[lxxviii] But Jerusalem will need to clarify and enhance its nuclear deterrence policy with special attention to a recognizably survivable and penetration-capable strategic retaliatory force. It will also be important to convincingly communicate to Tehran that Israeli nuclear forces are operationally usable and would be used as a complement to (not as an alternative) to BMD interceptions. This core communication should follow a prior shift to “selective nuclear disclosure” and a previously clarified “Samson Option.”
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 one of chance. In Jerusalem, this means, among other things, a continuing willingness to respect the full range of doctrinal complexity – both its own military doctrines and those of Iran – and a conspicuous willingness to forge ahead with reciprocally complex security policies. Inevitably, to successfully influence the choices that prospectively fearsome adversaries could make vis-à-vis Israel, Jerusalem will immediately need to underscore 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 military confrontation.
There remain some important and closely-related inferences.
Whether Israel’s intersecting and overlapping deterrent processes are geared primarily toward conventional or nuclear threats, their success will ultimately depend on the expected rationality of its Iranian 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, regional conflict prospects should be curtailed at the very lowest possible levels of controlled engagement and be governed by defensible considerations of “military necessity.”[lxxix] Under no circumstances should Israel ever find itself having to preempt an already-nuclear Iranian adversary. To prevent such unacceptable but imaginable circumstances should express Jerusalem’s absolutely overriding security obligation.
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 singular error by one or both sides to a particular two-party nuclear crisis escalation, or by still unforeseen “synergies”[lxxx] arising between singular miscalculations.
Israel’s Epistemological Security Challenge: Relentless Unpredictability
It follows from all this that the only predictable aspect of a forthcoming nuclear conflict crisis involving Israel will be its unpredictability. This ironic conclusion implies a relentless Israeli obligation to remain comprehensively vigilant about Iranian capabilities/intentions and suitably cautious about Jerusalem’s capacity to manage variously interrelated existential challenges. Though Iran is not yet nuclear, it remains altogether conceivable that a major security crisis with that nuclearizing adversary could soon involve the explicit threat or actual use ofIsraeli nuclear armaments. The tangible results of such unprecedented involvement would depend in part on the precise extent of any prior Israeli nuclear disclosure.
What is already required is an aptly far-reaching Israeli appreciation of decisional complexity and, correspondingly, a willingness to approach all 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[lxxxi] or empty political witticism.[lxxxii] In the best of all possible worlds there would be no need for any considerations of preemption/anticipatory self-defense,[lxxxiii] but such a rational and harmonious world remains a long way off.[lxxxiv]
For Israel, the prime inheritor of Genesis, global chaos augurs severe and paradoxical kinds of fragility.[lxxxv] Potentially, despite its relative power position, Israel could 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 verifiably precipitating events of major war or terror were to occur in other geographic regions.
“Spill-Overs” from Accelerated Superpower Arms Racing
There remains one final observation concerning Israel-Iran nuclear interactions. In one scenario, the destabilizing effects of an accelerating US-Russia arms race could “spill over” to the Middle East. More specifically, in such a worrisome narrative, still-growing disagreements between Washington and Moscow over Ukraine could spark a nuclear confrontation or actual nuclear exchange.
Though not directly related to Israel or Iran, certain systemic elements of either outcome could lower the operational threshold of bilateral nuclear engagement in the Middle East. Should these systemic interactions prove synergistic – interactions where the “whole” discoverable effect must be greater than the sum of its “parts” – such lowering could be dramatic and far-reaching. For designated Israeli decision-makers, the core conclusion is this: In figuring its optimal defense strategies vis-à-vis Iran – strategies that are both cost-effective and realistically compliant with international law – Jerusalem’s analytic attention should be systemic, not just be directed within the Middle East.
Strategic interactions between Israel and Iran should never be analyzed in vacuo. In our persistently Hobbesian “state of nature,”[lxxxvi] superpower arms racing (now exacerbated by ongoing Russian crimes against Ukraine) could impact both Iranian nuclear weapons development and Israeli responses. Whatever the calculable particulars of any such impact, the overriding strategic and jurisprudential watchword for Israel should remain constant. This word is intellect or mind. It ought never to be politics, whether domestic or international.
In a summarizing analysis, all aspects of Israeli nuclear deterrence, especially the potentially existential threat from Iran, will be affected by “Westphalian” anarchy. In the continuing absence of a “common power” (this means the centralizing power of collective security or world government), Jerusalem will need to make uniquely complex determinations and critical policy decisions. Acknowledging that the most prudent national defense assumptions should anticipate world-system enlargements of “centrifugal forces ,”[lxxxvii] Jerusalem should move promptly to security postures of (1) “selective nuclear disclosure” and (2) “Samson Option” enhancements.
Indispensable Israeli policy shifts away from “bomb in the basement” (“deliberate nuclear ambiguity”) postures could be undertaken via various back-channel communications with Iran. But this nuanced orientation would ignore a prospectively vital understanding: In the untested arenas of nuclear deterrence, Israel’s threat credibility vis-à-vis Iran could depend as much on intended public visibility as on plausibly expected harms.
Whatever its planned nuclear deterrence considerations, Jerusalem will have to base its contextual assumptions on the seventeenth-century insights of English philosopher Thomas Hobbes. By definition, in a world political system founded on Realpolitik,[lxxxviii] there is “no common power.” Above all else, this means basing Israel’s national survival decisions on strategic self-reliance. This does not mean refusing the tangible assistance of reliable and powerful allies (most obviously the United States), but ensuring that all final war judgments concerning Iran support the Jewish State’s undiluted existential requirements.
[i]This history-based reference is to the Peace of Westphalia (1648), a treaty that 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.
[ii] Thomas Hobbes was an English philosopher whose work was central to the founding fathers of the United States.
[iii] Per 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).
[iv] 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.
[v]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/
[vi] 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….”
[vii] 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.
[viii] 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).
[ix] International law remains a “vigilante” system, also called a “Westphalian” system.
[x] 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.
[xi] 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).
[xii] There is also a perpetual “Natural Law.” See, by this author, at JURIST: Louis René Beres: https://www.jurist.org/commentary/2021/12/louis-rene-beres-natural-law-us-constitution/
[xiii]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.
[xiv] 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.
[xv] The author’s 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.
[xvi] See, by this author, Louis René Beres, at Military Strategy Magazine: https://www.militarystrategymagazine.com/article/israels-nuclear-posture-intellectual-antecedents-and-doctrinal-foundations/
14. The right of self-defense is a peremptory or jus cogens norm under international law.
15. The “Great Revolt” of the Jews against Rome lasted from 66-70 C.E./BC. The fall of Masada is dated 73 C.E.
[xix] 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.”
[xx]. For earliest 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.
[xxi]. Iran has expressed an “obligation” to destroy Israel, an obligation 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.)
[xxii].Should Israel decide to wait for its Iranian enemies to strike first with unconventional weapons, the Jewish State would likely “upgrade” its traditional stance of disproportionately severe reactions to aggression, reactions that represent an ironic inversion of the Jewish Lex Talionis and have a different meaning than current legal definitions of “proportionality.” 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. Neither “Talionic Law” not Humanitarian International Law (the Law of War) ties its definition of proportionality to symmetry.
[xxiii].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.
[xxiv] 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.
[xxv].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.
[xxvi].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.
[xxvii].Id. at 173-74.
11.Grotius’ terminology raises a related question: Under what conditions, if any, might assassination be identified as a permissible form of anticipatory self-defense? Understood as tyrannicide, assassination is sometimes 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, expectations established by the entire corpus of pertinent international law could have no meaningful likelihood of satisfaction.
[xxix].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.
[xxx].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.
[xxxi].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).
[xxxii].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. Neither Syria nor Lebanon per se remain existential threats to Israel, but both have served as terror-launching lands for Hezbollah and other jihadists. 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.)
[xxxiii].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.
[xxxiv].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.
[xxxv].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).
[xxxvi].Beginning in 1948, Arab states generally regarded Israel as the institutionalized manifestation of multiple crimes, particularly colonialism, imperialism and aggression. Often denounced as “an instrument of evil” constructed “on a foundation of evil,” Israel was taken to represent 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 further irritating Tehran. 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.”
[xxxvii].An Israeli non-nuclear preemption – preferably in the context of an already-ongoing war – could represent the best way to reduce the risks of an eventual 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 Iran ever be able to 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 be manifestly secondary or altogether moot.
[xxxviii].See Vol. 3, tr. by Charles G. Fenwick, Washington, D.C., The Carnegie Institution of Washington 1916, p. 135.
[xxxix].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).
[xl].See id. at 191 (cited Jennings, The Caroline and McLead Cases, 32 AM. J. INT’L L. 82, 90 (1938)) [hereinafter Jennings].
[xli].See id., at 89.
[xlii].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.
[xliii] 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.
[xliv].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.
[xlv].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).
[xlvi].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.
[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. Currently, of course, following g many years of Iranian aggression against Israel, both by surrogate jihadist terror-forces and by direct attack, no attack by Jerusalem could reasonably be called “hurried.”
[xlviii].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/
[xlix].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).
[l].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.
[li] 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).
[lii].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.
[liii].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.
[liv].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.
[lv].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.
[lvi].See Wistrich, supra, p. 247; see also, Y. Harkabi, ARAB ATTITUDES TO ISRAEL (Jerusalem, 1971), p. 279.
[lvii].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
[lviii] 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 by various accumulating consequences of the Trump-brokered “Abraham Accords.”
[lix] Strictly speaking, the UN has no authority to create Palestine per se. This is because the authoritative criteria of statehood are identified at the Convention on the Rights and Duties of States (1933), the Montevideo Convention. This treaty asserts that statehood can never be achieved by either singular or collective acts of recognition.
[lx].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.
[lxi].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.
[lxii] See, for example, Louis René Beres, “Facing Myriad Enemies: Core Elements of Israeli Nuclear Deterrence,” The Brown Journal of World Affairs, Fall, 2013.
[lxiii]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.
[lxiv] In its decisions concerning nuclear weapons, Jerusalem will have to look beyond tactical military calculations, toward long-term political considerations.
[lxv] Leaving aside the Iranian nuclear threat, 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.
[lxvi] 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.
[lxvii] To enhance nuclear deterrence at the high-end of the conflict continuum, Israel should immediately consider “going public” with helpful details about its still-opaque “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 Iranian attempt to annihilate the Jewish State, whatever the particular moment of conflict, would result in the state or sub-state aggressor’s reciprocal destruction.
[lxviii]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.
[lxix] 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).
[lxx].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” injunction (which has undergone substantial revisions in contemporary jurisprudence) 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 should 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.
[lxxi] 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.”
[lxxii].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.).
[lxxiii]By this author, see: Louis René Beres, Horasis (Zurich): https://horasis.org/nuclear-war-avoidance-a-fourth-pillar-of-future-human-well-being/
[lxxiv].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 Littlefield, 2016; 2nd ed., 2018).
[lxxv].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).
[lxxvi] 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).
[lxxvii]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.
[lxxviii] 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 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 imminence can be acknowledged could prove fatal.
[lxxix] The principle of “military necessity” is 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.
[lxxx] 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.
[lxxxi] While former US President Donald J, Trump summed up his Singapore Summit meeting with North Korea’s Kim Jung On with the cheerful declaration “We fell in love,” the North Korean leader actively accelerated his country’s nuclear weapons development program.
[lxxxii] 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.
[lxxxiii]Sigmund Freud notes 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).
[lxxxiv]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.
[lxxxv]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.
[lxxxvi]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.)
[lxxxvii] The opposite would be an enlargement of “centripetal” or coalescing forces.
[lxxxviii]See by this author, Louis René Beres: REASON AND REALPOLITIK: US FOREIGN POLICY AND WORLD ORDER (Lexington Books, 1984). See also 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 similarly, by 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.)Gaza,Human Rights,Iran,Israel,Nuclear DoctrineGaza,Human Rights,Iran,Israel,Nuclear Doctrine