“The Highest Law” Israel, Iran and anticipatory self-defense

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

Emeritus Professor of International Law

Purdue University

lberes@purdue.edu

Abstract: “The safety of the people,” declares Cicero in The Laws, “is the highest law.” For Israel, this sentiment has always made sense, but never more than after the October 7, 2023 Hamas terror attacks. Now, because Iran (1) is Hamas’s dedicated state sponsor; (2) is continuing on its single-minded path to nuclear weapons status; and (3) is engaged in intermittently direct conflict with Israel, Jerusalem will need to focus on plausibly effective preemption options. If Israel should decide that it no longer has any reasonable alternative to launching defensive attacks against specific high-value military/industrial targets in Iran, this non-nuclear strike would need carefully-fashioned justifications under authoritative international law. In the following essay, Professor Louis René Beres, who was Chair of Project Daniel (Israel, PM Sharon, 2003-2004), analyzes Israel’s right and capacity to act in “anticipatory self-defense” against a near-nuclear state adversary. Prima facie, Iran is a law-violating foe that (4) openly supports jihadist terror against Israeli noncombatants; and (5) openly acknowledges blatantly genocidal intentions.

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

To fully understand what is happening between Israel, Iran and certain mutually reinforcing Islamic terrorist groups, especially Hezbollah in Lebanon, all conflicting policies should be examined “in context.” World politics remains in a “state of nature,” a condition that earlier political philosophers also called a “state of war.”[i] By definition, within such continuous anarchy[ii] – a bellum omnium contra omnes or “war of all against all” – international law[iii] is compelled to operate in “vigilante” form. In expressly legal terms, this “Westphalian” dynamic describes a “self-help” system of national security operations and global power management.[iv]

Clarity ought not to be expected. The force-based Westphalian system remains dense and bewildering. Always, after all has been checked and counter-checked, there would be assorted caveats and nuances for consideration by Israeli analysts and defense planners. Regarding Israel, Iran and preemption, though codified norms don’t usually allow states to strike first in self-protection, the customary law of nations does permit variously residual acts of “anticipatory self-defense.”[v]

Under such binding law, defensive first strikes or acts of “preemption” could be considered permissible in particular security-threatening circumstances. But even if such resorts to anticipatory self-defense could be lawful or law-enforcing, they could still prove unreasonably dangerous (not cost-effective), strategically misconceived or tangibly ineffectual. Israel, therefore, should always evaluate its anticipatory self-defense options along two principal standards of evaluation.

Subsidiary questions would need to be raised. What are the implications of such considerations for Israel, a nuclear state now imperiled by a steadily-nuclearizing state adversary?[vi] Before Israel could decide rationally to invoke a calculated strategy of preemption vis-a-vis Iran, it’s pertinent policy makers and strategists would need to assess this strategy according to considerations of law and security.

What does this all mean for national security decision-making in Jerusalem? At some point, Israel could calculate that a considered preemptive strike against selected hard Iranian targets (i.e., weapons/weapon-system infrastructures) would be convincingly legal, but still not “work.” Alternatively, Jerusalem could conclude that any such considered strike would be promising or gainful in operational war-fighting terms, but simultaneously more-or-less illegal.

What then?

There would be further questions. For Israel, a country smaller than America’s Lake Michigan, one danger of waiting too long is that Tehran could more easily implement protective measures that would pose additional hazards. Deigned to guard against an Israeli preemption, such Iranian measures could involve the attachment of “hair trigger” launch mechanisms to nuclear weapon systems and/or the adoption of “launch on warning” policies, possibly coupled with ambiguous pre-delegations of nuclear launch authority.

Even in the absence of such prospective threats, a newly-nuclear Iran could calculate at any time that striking first would be its only rational strategic option. It follows, among other things, that the obligatory search for “escalation dominance” during a military crisis would favor an already-nuclear Israel, but only if Iran itself were not yet nuclear. Ipso facto, a continuation of the now-prevailing nuclear asymmetry between these two adversartial states could be indispensable to Israel’s literal survival.

What Would Constitute a Lawful Preemption?

Optimally, Israel would do everything possible to prevent any out-of-control struggle for escalation dominance. The principal argument here for special Israeli prudence would involve corollary and not insignificant risks of accidental or unauthorized attacks against Israeli armaments or civilian populations.[vii] Nonetheless, if such a struggle were ever to become a fait accompli, Jerusalem could still calculate, correctly, that a preemptive strike would be both lawful and necessary. In part, this consequential judgment would owe to the following reasoning in Jerusalem: Any expected Iranian retaliation, however damaging, would still be more tolerable than the plausibly expected consequences of Iranian first-strikes.

For the moment, though these enemy first-strike aggressions would be conventional or non-nuclear, they could still include radiation dispersal weapons, an attack on Israel’s nuclear reactor at Dimona, or even surrogate nuclear attacks launched by Iran’s already-nuclear ally, North Korea. Regarding Pyongyang and Kim Jung Un, it ought to be remembered that it was North Korea that built a nuclear reactor for Syria at Deir al-Zour. This reactor was destroyed by an Israeli preemptive attack in 2007. North Korea, of course, now has growing military ties to Russia

In its present legal and physical form, Israel, which “began” in 1948,[viii] will last only as long as its leaders remain attentive to Cicero’s primal warning about national “safety.”[ix] Says the ancient Roman jurist in The Laws: “The safety of the People shall be the highest law.” Such needed attentiveness could be fully consistent with the authoritative expectations of international law.[x]

International law is never a suicide pact. Israel’s basic security problems with Iran could compel Jerusalem to decide once again between waiting for an enemy to strike first[xi] or striking first itself.  When judged from a strategic and tactical perspective, the choice of a preemption option could sometimes be rational and cost-effective for Israel.[xii]

Under binding international law, preemption might also represent a permissible option.  In this connection, though subject to important constraints and conditions, the right of “anticipatory self-defense” is already well established in relevant jurisprudence.[xiii]

An Israeli Decision to Preempt

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

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

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

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

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

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

Background of Preemption in Law

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

The right of self-defense, we learn from Emmerich de Vattel, gives rise to the “right to resist injustice.”  According to the Swiss scholar’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.[xxviii]

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

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

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

There are several antecedent problems.  First, in the “real world,” judgments concerning the immediacy of anticipated aggression are exceedingly difficult to make.  Second, even where such judgments are ventured, it can never by altogether clear whether the degree of immediacy is sufficient to invoke preemption rather than prevention.  Third, in meeting the legal requirements of defensive intent, a state may have to act preventively rather than preemptively, because waiting to allow a threat to become more immediate could have decisively or even intolerably negative strategic/tactical consequences.  And fourth, the actual state-preserving benefits that might accrue from the assassination of enemy leaders are apt to be contingent upon not waiting until the danger posed is “instant, overwhelming, leaving no choice of means and no moment for deliberation.”

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

Recalling Cicero: “The safety of the People shall be the highest law.”

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

Before Israel could persuasively argue any future instances of anticipatory self-defense under international law, a verifiable case would have to be made that Jerusalem had first sought to exhaust all available means of peaceful settlement. To wit, even a broad view of anticipatory self defense cannot relieve a state of this peremptory obligation, codified inter alia at Article 1 and at Article 2(3) of the UN Charter.[xxxviii] Strictly speaking, these obligations should not actually be binding upon Israel because of the de facto condition of belligerency created and sustained by Iran,[xxxix]  but the global community generally seems to have ignored these conditions.

Jewish-Historical Background and Future Genocide Against Israel

Interestingly, certain origins of pertinent legal considerations would have their conceptual 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 of 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 in such circumstances [and this is especially relevant to the modern State of Israel] 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.[xl]

What about an Iranian genocide against Israel? Genocide is a word with very precise jurisprudential meaning.  Codified at the Genocide Convention, a treaty [xli] 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….”  The key to understanding and identifying genocide lies in the phrase, “intent to destroy.”  Accordingly, a genocidal state must display “criminal intent” or mens rea.

Outside of Iran, active support in parts of the Arab world for genocide against “The Jews” is a matter of long historical record.  Even before creation of the State of Israel, such support was displayed proudly and enthusiastically during the Holocaust. On November 28, 1941, the Grand Mufti of Jerusalem, Haj Amin, met in Berlin with Adolph Hitler.  The purpose of this meeting, which followed Haj Amin’s organization of SS troops in Bosnia, was to ensure cooperation on “The Jewish Question.”

It was necessary, Haj Amin insisted, that all Jews be deported 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.”[xlii]

Neither Palestine’s “Non-Member Observer State” nor already-sovereign Arab states have ever publicly criticized the Mufti’s lascivious support for Holocaust crimes.  During the 1950s and 1960s, Adolph Hitler remained an enormously popular figure in the Arab world.  Unsurprisingly, responses in this region to the Eichmann trial in Jerusalem (1961) generally treated the mass murderer as a “martyr,” and congratulated the Nazi war criminal for having “conferred a real blessing on humanity” by enacting a “final solution.”[xliii]

“Palestine” and Iran

Overall, the complex security situation is fraught not only with unprecedented danger,[xliv] but also with considerable irony.  Before Israel could seriously begin to move toward accepting Palestinian sovereignty and independence, toward a “two-state solution,” an Iranian regime preparing for genocidal war against Israel would have to reverse such preparations.  This is because Israel could not afford to confront the existential risks of another hostile Islamic state on its borders.[xlv]

In the absence of such peace-centered movement in Iran, the creation of Palestine could meaningfully affect Israel’s inclination to preempt against Iran.  Because of Israel’s small size and corresponding lack of “strategic depth,” its inclination to strike first at Iranian hard targets could then become especially high.  Deprived of strategic depth, Israel could not hold out for as long as was possible when Palestine was still merely an “Authority” or “UN Non-Member Observer State.”

There is more. It is plausible that a post-Palestine shift in Israeli nuclear strategy from deliberate ambiguity to disclosure[xlvi] could reduce Israel’s incentive to preempt, but only if Jerusalem had first been made to believe that its nuclear deterrent threat was being taken with sufficient seriousness by Iran.[xlvii] Several corollary problems would be considered.

First, how would Israel’s leadership know that taking the bomb out of the “basement” had actually enhanced its nuclear deterrence posture? To a certain extent, the credibility of Jerusalem’s nuclear threats would be contingent upon the severity of different provocations.  It might be believable if Israel were to threaten nuclear reprisals for provocations that endanger the physical survival of the state, but it would almost certainly be less believable to threaten such reprisals for relatively minor territorial infringements or incursions. One “grey area” provocation could involve any growing Iranian threat to use radiation dispersal weapons, an option that might be combined with Iranian rocket attacks on Israel’s nuclear reactor at Dimona.

There would be other problems and complexities.  To function successfully, Israel’s deterrent, even after being removed from the “basement,” would have to be rendered secure from Iranian preemptive strikes. Israel must also remain wary of “decapitation,” of losing the “head” of its military command and control system, because of enemy first-strike aggressions.  Should Israel’s enemies be unpersuaded by Jerusalem’s conspicuous move away from deliberate ambiguity, – a move intended to strengthen Israel’s nuclear deterrent – they might then initiate such strikes as could immobilize Israel’s order of battle.

What then?

A contrary argument about the effects of Palestine on Israel’s inclination to preempt suggests that because of Israel’s newly expanded vulnerability, its nuclear deterrent could become more credible than before.  As a result, Jerusalem could better afford not to strike first than when it still needed to administer terror-spawning Palestinian territories.  In this situation, the principal benefit of shifting from ambiguity to disclosure would lie in an explicitly-identified “escalation ladder,” a metaphor revealing a broad array of feasible Israeli reprisals. These would range from limited conventional responses to calibrated nuclear strikes.

In weighing different arguments concerning the effect of Palestine upon an Israeli preemption, particular attention would need to be directed toward Israel’s presumptions about the inevitability of war with Iran and its longer-term expectations for Iranian vulnerability.  Should Israel’s leaders conclude that the creation of Palestine would make major war with Iran more-or-less inevitable, and that, over time, Iranian vulnerability to Israel would likely diminish, Jerusalem’s inclination to strike first could reasonably be increased.  To a certain extent, Israel’s tactical judgments on preemption will be affected by antecedent decisions on nuclear strategy, including decisions concerning “counter value” vs. “counterforce” military objectives.

In making its nuclear choices, Israel will have to confront a paradox.  Credible nuclear deterrence,[xlviii] essential to security and survival in a world made more dangerous by the creation of Palestine,[xlix]  would require “usable” nuclear weapons.  If these weapons were obviously inappropriate for any reasonable objective, they would not deter.

All things considered, Israel, if confronted by a new state of Palestine, would be well-advised to do everything possible to prevent a nuclear Iran, possibly including variously cost-effective non-nuclear preemptions.  Under these portentous conditions, Israel would require a very believable (and hence usable) nuclear deterrent, one that could be employed without igniting “Armageddon” for regional belligerents and that could serve damage-limiting military purposes (whatever the collateral effects) against Iranian weapons (nuclear and non-nuclear) should deterrence fail.

Creation of a fully-sovereign Palestine could have a dramatic effect on Jerusalem’s decisions concerning anticipatory self-defense. Israel’s extant nuclear weapons status and strategy would impact and influence this vital decision.  More precisely, should Israeli decision-makers determine that the country’s nuclear weapons could support preemption by deterring Iran from retaliating, this “atomic factor” could encourage Israeli defensive first strikes.  If, on the other hand, Jerusalem were to calculate that Iran or (in the future) other prospective target states would be unimpressed by any threats of an Israeli nuclear counter-retaliation, this variable would likely not encourage defensive first strikes.

Israel’s Nuclear Strategy and Law-Based Preemptions

Could the precise form of Israel’s nuclear strategy make a difference in shaping these circumstances?  Relying upon nuclear weapons not to deter Iranian first strikes, but to support its own preemptive attacks, Israel would have to choose between continued nuclear ambiguity (implicit threats) and nuclear disclosure (explicit threats).  How should it choose?[l]

More than anywhere else, the answer lies in Jerusalem’s confidence that its adversaries already acknowledge Israel’s “calibrated” nuclear capability.  Should this confidence be high, there could still be variously compelling valid reasons to take the bomb out of the “basement.”  If such confidence were low, the move to disclosure would likely be even more purposeful, because any critical reactions by the United States would be less worrisome for Israel in the “Cold War II” strategic environment.[li]

What about Afghanistan? On its face, the fall of that “graveyard of empires” revealed no verifiably direct connections to Israel’s national security. Nonetheless, the overwhelming defeat of its American patron in that volatile region could have significant “spillover effects” for Israel. Most worrisome, in this regard, would be emboldened sub-national Islamist adversaries (e.g., Sunni Hamas, Shiite Hezbollah, ISIS-K); expanded strife between pertinent enemies and unstable states (e.g., Taliban vs. ISIS-K); and additional geo-strategic influence for the already-nuclear Islamic state of Pakistan). This last result would likely elicit certain “countervailing” reactions from India and/or China, reactions that could never be ignored by Vladimir Putin’s Russia.

In view of what is generally believed throughout the Middle East and the wider world, there is every good reason to assume that Israel’s nuclear arsenal does exist and that it could be “nuanced” to meet the strategic particularities of any specific threat. Israel’s inter-linked enemies already share this key assumption and need no further convincing about Jerusalem’s basic nuclear capacities.  The most critical questions about Israel’s nuclear deterrent would not be about capability, but about willingness. How likely is it that Israel, after launching non-nuclear preemptive strikes against enemy hard targets, would respond to enemy reprisals with some sort nuclear counter-retaliation?

These are all bewildering matters. What will Israeli planners conclude?  The answer depends in part upon their view of Iran’s expectedly reciprocal judgments concerning Israel’s pertinent leaders.  Do these judgments suggest a leadership that believes it can gain the upper hand with nuclear counter-retaliation?  Or do they suggest a leadership that believes such counter-retaliation would bring upon Israel intolerable levels of adversarial harm?

Depending on the way in which enemy decision-makers in Tehran interpret Israel’s authoritative perceptions, they will accept or reject the cost-effectiveness of launching a non-nuclear retaliation against Israel.  This implies that it is in Israel’s best interest to communicate the following strategic assumption to its Iranian enemy: Israel would be acting rationally by responding to enemy non-nuclear reprisals to Israeli preemptive attacks with a nuclear counter-retaliation. The plausibility of this assumption could be enhanced considerably if the Iranian reprisals were to involve chemical and/or biological weapons.

All of these 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 always remain a matter of whimsy or conjecture.  The prospect of non-rational judgments in the region is always high, especially as the influence of Islamist/Jihadist ideologies remain strongly determinative among Iranian decisional elites.

To the extent that Israel might one day believe itself confronted with non-rational state enemies, particularly ones with highly destructive weapons in their arsenals, its incentive to preempt could become overwhelming.  In fact, should such enemies ever be believed to hold nuclear weapons,[lii] Israel might even decide rationally to launch a nuclear preemption against these enemy arsenals.  This would appear to be the only calculable circumstance in which a rational Israeli preemptive strike could ever be nuclear.

Iran should understand from this that there are foreseeable conditions wherein Jerusalem might decide to actually launch its nuclear weapons.  In essence, these conditions would concern the dissembling prospect of a total military defeat.[liii] Faced with imminent destruction of the Jewish State, Israel’s leaders would almost certainly do whatever is needed to survive, including resort to nuclear retaliation, nuclear counter-retaliation, nuclear preemption or (most “residual” of all) nuclear war-fighting.

Nuclear Retaliation

Should Iran launch a nuclear first-strike against Israel, Jerusalem would certainly respond, to the extent possible, with a nuclear retaliatory strike.  If this enemy’s first-strikes were to involve other forms of unconventional weapons, i.e., chemical and/or biological weapons, Israel might launch a nuclear reprisal, depending, in large measure, upon Jerusalem’s expectations of follow-on aggression and on its associated calculations of comparative damage-limitation.  If Israel absorbed a massive conventional attack, a nuclear retaliation could not automatically be ruled out, especially if: (a) the aggressor were perceived to hold nuclear and/or other unconventional weapons in reserve; and/or (b) Israel’s leaders were to believe that non-nuclear retaliations could not prevent destruction of the Jewish state.  A nuclear retaliation by Israel could be ruled out only in those circumstances where Iranian enemy aggression were clearly conventional, “typical” (i.e., consistent with previous instances of enemy attack, in both degree and intent) and determinably hard-target directed.

Nuclear Counter Retaliation

Should Israel feel compelled to preempt Iranian enemy aggression with conventional weapons, the Iranian response would largely determine Jerusalem’s next moves.  If this response were in any way nuclear, Israel would most assuredly resort to nuclear counter-retaliation.  If this retaliation were to involve chemical and/or biological weapons, Israel might also feel pressed to take the escalatory initiative – again, depending upon Jerusalem’s considered judgments of enemy intent and its calculations of essential damage-limitation.

Should the Iranian response to Israel’s preemption be limited to hard-target conventional strikes, it is unlikely that Jerusalem would move on to nuclear counter-retaliations.  If, however, the enemy conventional retaliation was all-out and directed toward civilian populations as well as to military targets, an Israeli nuclear counter-retaliation could not be ruled out ipso facto.  It would appear that such a counter-retaliation could be ruled out only if the enemy conventional retaliation were ascertainably proportionate[liv]  to Israel’s preemption, confined exclusively to Israeli hard-targets, circumscribed by the jurisprudential limits of “military necessity” [lv] and accompanied by variously explicit assurances of non-escalatory intent.

Nuclear Preemption

It is highly unlikely (perhaps inconceivable) that Israel would ever decide to launch a preemptive nuclear strike. Though strategic circumstances could arise wherein such a strike would be determinably rational (i.e., the calculated prospective benefits of the strike would outweigh prospective costs), it is implausible that Israel would ever allow itself to reach such “end-of-the-line” alternatives.  Moreover, unless the nuclear weapons involved were used in a fashion consistent with authoritative expectations of the laws of war – the limits of “discrimination” (aka “distinction”); “proportionality” and “military necessity” –  this form of preemption would represent an egregious violation of international law prima facie.

Even if such consistency were possible, the psychological/political impact of this activity on the world community would be negative and far-reaching.  It follows that an Israeli nuclear preemption could be expected only:  (a) where Israel’s Iranian enemies had acquired nuclear and/or other unconventional weapons judged capable of destroying the state; (b) where these enemies had made clear that their intentions paralleled their capabilities; (c) where these enemies were believed ready to begin a “countdown to launch;” and (d) where Jerusalem believed that Israeli non-nuclear preemptions could not achieve the needed minimum levels of damage-limitation, i.e., levels consistent with physical preservation of the polity.

Nuclear Warfighting

Should nuclear weapons ever be introduced into conflict between Israel and Iran, either by the Jewish State or by the Iranian foe, nuclear war-fighting, at one level or another, would ensue.  This would hold true as long as:  (a) enemy first-strikes against Israel would not destroy Jerusalem’s second-strike nuclear capability; (b) enemy retaliations for Israeli conventional preemption would not destroy Jerusalem’s nuclear counter-retaliatory capability; (c) Israeli preemptive strikes involving nuclear weapons would not destroy Iranian second-strike nuclear capabilities; and (d) Israeli retaliation for enemy conventional first-strikes would not destroy Iranian nuclear counter-retaliatory capability.

It follows from Israel’s strategic requirements that Jerusalem should do whatever is needed to ensure the likelihood of (a) and (b) above, and the unlikelihood of (c) and (d).  This means, among other things, strengthening the hard-target kill capacity of its recognizably survivable and penetration-capable nuclear forces.

What, exactly, would a nuclear war “mean”?  Even the most limited nuclear conflict would signal genuine catastrophe.[lvi] Just the immediate effects of the explosions; thermal radiation, nuclear radiation, and blast damage, could cause intolerably wide swaths of death and devastation.

None of this is meant to suggest that an Israeli conventional defensive first-strike would raise the likelihood of a nuclear war. To the contrary, Israel’s resort to a non-nuclear preemption might sometime represent the optimal way to prevent a nuclear war. Nothing could be worse for Israel (and possibly its Arab neighbor states as well) than delaying an essential preemption until Iran was already nuclear. Plainly, the best-case scenario for Israel and its regional Arab neighbors would be to neutralize the impending Iranian nuclear threat without having to launch any preemption.

The More Things Change….

          Plus, ca change, plus c’est la même chose.  “The more things change, the more they remain the same.”  Despite continuous efforts to preserve the state and “safety of the People,” Israel remains subject to credible threats of existential harm.  The Jewish State, notwithstanding the country’s high levels of military technology and international law’s longstanding presumption of juridical solidarity between all states,[lvii]could sometime face genuine risks of annihilation.[lviii] To prevent such a prospect, Israel could resort to the law-based protections afforded by “anticipatory self-defense.”

As long as Israel’s expression of a permissible preemption had been prompted by imminent attack dangers and was executed in verifiable compliance with the relevant expectations of distinction, proportionality, and military necessity,[lix] the defensive first-strike option could remain lawful. Such lawfulness would not automatically imply corresponding strategic benefits. Always, reliable Israeli judgments of legality and efficacy, though overlapping, would remain analytically distinct.

With an approaching “eleventh hour,” Jerusalem will need to clarify and enhance its nuclear deterrence policy. Special attention ought to be directed toward codifying and maintaining a recognizably survivable and penetration-capable strategic nuclear force. The nuclear options included in this more conspicuous force would need to range along different points along a continuum of military destructiveness. Israel requires not an “all or nothing” nuclear deterrent capacity, but one recognizably subject to various forms of “calibration.”

It will also be important for Israel to continuously enhance its ballistic missile defenses, and convincingly communicate to Tehran that Israeli nuclear forces are (1) usable; and (2) would be used as a complement (not as an alternative) to well-planned BMD interceptions. Among other things, this sort of indispensable communication should include an incremental end to Israel’s “deliberate nuclear ambiguity.”

Israeli Nuclear Deterrence: More Than a Game of Chance

Nuclear deterrence is a “game” that sane national leaders may sometime have to play in the Middle East, but it should always be approached by Israel as a game of strategy, not 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 pertinent enemies – and a corresponding determination 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 need to clarify unambiguously that its conventional and nuclear deterrence are seamlessly intersecting and that Israel stands ready to counter enemy attacks at every decipherable level of possible confrontation.

There remain two final but important points to be made in this examination of Israel, preemption and anticipatory self-defense.

First, whether Israel’s intersecting and overlapping deterrent processes are geared primarily toward conventional or nuclear threats, their success will ultimately depend upon the expected rationality of the nation’s relevant enemies. In those residual cases where such rationality would appear implausible or improbable, Jerusalem could find itself under considerable pressures to strike first preemptively. If Jerusalem’s expected responses were to be judged rational, they might then need to include conclusive and operationally-reliable options for “anticipatory self-defense.” For Israel’s sake, it goes without saying that regional conflict prospects (a) should always be curtailed at the very lowest possible levels of controlled engagement; and that that under no circumstances (b) should Israel find itself having to preempt against an already nuclear adversary.

To prevent such unacceptable but still imaginable circumstances vis-à-vis Iran should represent Jerusalem’s overriding security obligation.

Second, even the most meticulous plans for preventing a deliberately-inflicted nuclear conflict would not automatically remove the attendant dangers of an inadvertent or accidental nuclear war. While an accidental nuclear war would necessarily be inadvertent, there are determinable forms of inadvertent nuclear war that need not be caused by mechanical, electrical or computer accident. These particular but still-consequential forms of an unintentional nuclear conflict could represent the unexpected result of misjudgment or simple miscalculation, whether created © as a singular error by one or both sides to a particular (two-party) nuclear crisis escalation; or (d) by still unforeseen “synergies”[lxi] arising between singular miscalculations.

Growing Strategic and Legal Uncertainties for Israel

           Israel, severely injured by the October 7, 2023 Hamas attacks, is entering into a portentous period of cascading strategic uncertainties. While its national leaders may suggest that security matters are somehow apt to improve, such calculations could merely be wishful. Eventually, Israel would be forced to acknowledge a much less auspicious geopolitical reality.

          Even if an American President should succeed in bringing the United States and Iran back into viable and law-oriented negotiations, the cumulative harms of Iranian nuclearization are very unlikely to be halted or reversed. Considered together with continuously inauspicious strategic developments in other parts of the world, this conclusion signifies a basic obligation for Jerusalem to fashion a progressively refined national strategy of nuclear deterrence and nuclear war avoidance.

          In the end, the truest forms of Israeli military power, whether expressed as “anticipatory self-defense” or some promising form of nuclear deterrence, should reflect a conspicuous triumph of “mind over mind,” not just “mind over matter.”[lxii] Ultimately, Israel’s most compelling forms of influence will need to derive not from the barrel of a gun, rocket or missile, but from the less tangible advantages of refined intellectual power. In Jerusalem, these advantages should be explored according to the previously mentioned criteria of law and strategy.  These complex standards would not necessarily be “in synch” with each other, but could be contradictory or opposed.

          For Israel, what will be required is a suitably deep appreciation of decisional complexity and a corresponding willingness to approach intersecting legal issues as an intellectual (not political) task. In the best of all possible worlds, there would be no need for any national considerations of preemption/anticipatory self-defense,[lxiii] but such a world remains a long way off.[lxiv] In the meantime, what should remain most important for Israel to remember is Cicero’s timeless judgment: “The safety of the People shall be the highest law.”

          National defense and national security will always have its own specific grammar and syntax. For Israel, confronted by an ever-growing nuclear threat from a determined Iran, the option of a significant military preemption ought never to be dismissed out of hand. There could come a time wherein the riskiest defensive first strikes would still be cost effective and rational for Israel. In all likelihood, this time is not far off, and could even be imminent.

           In the prospectively existential matter of a steadily-nuclearizing Iran, the outcome of a war with Israel could be determined before the opening salvos of actual military engagement.[lxv] The first battle of any war, especially an unprecedented nuclear war, should  be waged as a dialectical competition of adversarial ideas, a theory-based struggle that acknowledges vast complexities. Remembering 19^th century Prussian military thinker Carl von Clausewitz (On War), such complexities include the inevitable pitfalls of “friction.”[lxvi] Whatever the particularities of any impending Israel-Iran war, these pitfalls would concern the impactful gap between “war on paper” and “war as it actually is.”

—————

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

[i] See Thomas Hobbes, Leviathan, Chapter XIII. Though the 17^th century English philosopher notes that the “state of nations” is in the always-anarchic condition of “war,” that condition is still more tolerable than that of individuals coexisting in nature. With these individual human beings, he instructs, “…the weakest has strength enough to kill the strongest.” Now, however, with the continuing advent of nuclear weapons, a circumstance clearly unforeseen by Hobbes, there is no persuasive reason to believe that the “state of nations” remains more tolerable. Rather, nuclear weapons are continuously bringing the state of nations closer to a true Hobbesian state of nature.

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

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

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

[v] 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).

[vi] In this connection, it must be borne in mind that even before Iran would acquire a nuclear missile capability, it could till acquire the capacity to use radiation dispersal weapons. Though less apocalyptic than an actual nuclear chain-reaction bomb, such a capacity could still wreak long-term havoc upon Israel. The present author wrote about such worrisome weapons in his early book on nuclear terrorism. See: Louis René Beres, Terrorism and Global Security: The Nuclear Threat (Westview, 1987).

[vii] In this connection, it ought to be borne in mind that Iran’s multiple missile attacks on Israel in mid-April 2024 were intentionally indiscriminate. Inter alia, this open indifference to humanitarian international law suggests a similar indifference if that lawless state was to achieve nuclear weapon status.

[viii] 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.”

[ix] In these times, Israeli planners ought also to consider a discernible drift toward global “chaos.” Whether it is described in the Old Testament or in other sources of ancient thought, chaos is potentially as much a source of human betterment as one of disarray or declension.

[x] International law is partially deducible from Natural Law.

[xi].Should Israel decide to wait for its Iranian enemies to strike first with maximum-possible pre-nuclear ordnance, the Jewish State would likely respond with even greater force. Such predictably severe reactions to major Iranian aggression could represent an inversion of the biblical Lex Talionis or Jewish law of exact retaliation. The legal principle of “an eye for an eye, a tooth for a tooth” (not the same principle as international law’s current expectation of “proportionality) is found in three separate passages of the Torah or Pentateuch.

[xii].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.

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

[xiv]Israel might also be constrained by strategic rather than narrowly jurisprudential considerations. In this connection, see: Amos Yadlin and Avner Golov, “If Attacked, How Would Iran Respond?” INSS Strategic Assessment, Vol. 16, No. 3, October 2013, pp. 7 – 21. See also: The Iran Project: Weighing Benefits and Costs of Military Action Against Iran, Woodrow Wilson Center, 2012. Maj.Gen (ret.) Amos Yadlin is a former Head of Israel’s Military Intelligence Directorate (Aman).

[xv] 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.

[xvi].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 distinction, proportionality and military necessity into belligerent calculations.

[xvii].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.

[xviii].Id. at 173-74.

11.Grotius’ terminology here raises an interesting related question–that is, under what conditions, if any, might assassination be identified as a permissible form of anticipatory self-defense?  Understood as tyrannicide, assassination has sometimes been accepted as lawful under international law (e.g., Aristotle’s POLITICS; Plutarch’s LIVES and Cicero’s DE OFFICIIS).

[xx].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.

[xxi].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.

[xxii].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).

[xxiii].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.

[xxiv].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.

[xxv].Under international law, the generic question of whether or not a state of war actually exists between states would be 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).

[xxvi].There is nothing new about such calls concerning Israel’s very existence.  From the first, Arab states, and more recently, Iran, have regarded Israel as the institutionalized manifestation of multiple crimes, particularly colonialism, imperialism and aggression.  Indeed, often denounced as “an instrument of evil,” constructed “on a foundation of evil,” Israel is taken to be immutably criminal, irremediable, fit only for liquidation/extermination.  (See, for example, the discussion of “The External Aspect:  Aggression, Intrigues, Exploitation,” in Yehoshafat Harkabi, ARAB ATTITUDES TO ISRAEL, Jerusalem:  Keter Publishing House Ltd., 1972, pp. 307-310).

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

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

[xxix].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).

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

[xxxi].See id., at 89.

[xxxii].Cicero, citing approvingly to the Greeks, offers enthusiastic support for tyrannicide:  “Grecian nations give the honors of the gods to those men who have slain tyrants.  What have I not seen at Athens?  What in the other cities of Greece?  What divine honors have I not seen paid to such men?  What odes, what songs have I not heard in their praise?  They are almost consecrated to immortality in the memories and worship of men.  And will you not only abstain from conferring any honors on the savior of so great a people, and the avenger of such enormous wickedness, but will you even allow him to be borne off for punishment?  He would confess–I say, if he had done it, he would confess with a high and willing spirit that he had done it for the sake of the general liberty; a thing which would certainly deserve not only to be confessed by him, but even to be boasted of.”  Taken from Cicero’s speech in defense of Titus Annius Milo, a speech offered on behalf of an instance of alleged tyrannicide committed by Milo, leader of Lanuvium.  See Cicero, The Speech of M.T. Cicero in Defense of Titus Annius Milo, in C.D. Yonge, tr., SELECT ORATIONS OF M.T. CICERO, New York:  Harper & Brothers, 1882, p. 208.

[xxxiii] 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.

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

[xxxv].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).

[xxxvi].Recall Samuel Pufendorf’s argument in ON THE DUTY OF MAN AND CITIZEN ACCORDING TO NATURAL LAW:  “…where it is quite clear that the other is already planning an attack upon me, even though he has not yet fully revealed his intentions, it will be permitted at once to begin forcible self-defense, and to anticipate him who is preparing mischief, provided there be no hope that, when admonished in a friendly spirit, he may put off his hostile temper; or if such admonition be likely to injure our cause.  Hence, he is to be regarded as the aggressor, who first conceived the wish to injure, and prepared himself to carry it out.  But the excuse of self-defense will be his, who by quickness shall overpower his slower assailant.  And for defense, it is not required that one receive the first blow, or merely avoid and parry those aimed at him.”  See Samuel Pufendorf, ON THE DUTY OF MAN AND CITIZEN ACCORDING TO NATURAL LAW, Vol. II, tr., by Frank Gardner Moore, New York:  Oceana Publications, Inc., 1964, p. 32.

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

[xxxviii].A similar imperative can be found in Jewish religious law.  “When thou comest near to a city to fight against it,” proclaims Deuteronomy 20:10, “then proclaim peace to it.”  Maimonides also calls for diplomatic solutions before hostilities begin to milhemet mitzvah (a war commanded by the Torah or Pentateuch): “No war is declared against any nation before peace offers are made to it.”  The biblical commentator Abrabanel (1437-1508) argues not to hurry to go to war.  For more complete examinations of war in the Jewish tradition, consult Efraim Inbar, “War in Jewish Tradition,” The Jerusalem Journal of International Relations, Vol. 9, No. 2, June 1987, pp. 83-99.

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

[xl].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.

[xli] 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).

[xlii].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.

[xliii].See Wistrich, supra, p. 247; see also, Y. Harkabi, ARAB ATTITUDES TO ISRAEL (Jerusalem, 1971), p. 279.

[xliv].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 persistent threats made by certain Iran may constitute an egregious violation, inter alia, of the Article 2(4) prohibition on the threat of force.

[xlv] Official Palestinian hostility to Israel is oriented to removal of the Jewish State by attrition and annihilation. This relentless orientation has its 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 PLO aim as being “to achieve their rights to return, and to self-determination on the whole of their homeland.”

[xlvi]At least in its broadest contours, Israel’s posture of deliberate nuclear ambiguity has already been breached by two of the country’s prime ministers, first, by Shimon Peres, on December 22, 1995, and second, by Ehud Olmert, on December 11, 2006. Peres, speaking to a group of Israeli newspaper and magazine editors, had then stated publicly:  “…give me peace, and we’ll give up the atom. That’s the whole story.” When, later, Olmert offered very similarly general but also plainly revelatory remarks, they were described widely and benignly as mere “slips of the tongue.”

[xlvii].The question of deliberate ambiguity vs. disclosure is the central theme of Louis René Beres, ed., SECURITY OR ARMAGEDDON:  ISRAEL’S NUCLEAR STRATEGY (Lexington, MA: Lexington Books, 1986). See also, inter alia, Louis René Beres, “Looking Ahead: Revising Israel’s Nuclear Ambiguity in the Middle East,” Herzliya Conference 2013, Working Paper.

[xlviii] See, for example, Louis René Beres, “Facing Myriad Enemies: Core Elements of Israeli Nuclear Deterrence,” The Brown Journal of World Affairs, Fall, 2013.

[xlix] It is important to understand that Prime Minister Benjamin Netanyahu’s insistence that any Palestinian state remain “demilitarized” is not merely unrealistic, but also inconsistent with pertinent international law. On this point, see: Louis René Beres and (Ambassador) Zalman Shoval, “Why a Demilitarized Palestinian State Would Not Remain Demilitarized: A View Under International Law,” Temple International and Comparative Law Journal, Winter, 1998, pp. 347-363.

[l] One should be reminded here, of a warning speech of Pericles (432 BCE), as noted by Thucydides: “What I fear more than the strategies of our enemies, is our own mistakes.” See: Thucydides: The Speeches of Pericles, H.G. Edinger, tr., New York: Frederick Ungar Publishing Company, 1979, p. 17.

[li] In this connection, it would be prudent to understand that the United States and Russia (along with China) are now at the early stages of a second Cold War. Conceivably, of course, this new Cold War could unfold to Israel’s strategic advantage, rather than Iran’s. In any event, it is incumbent upon Israel’s military and political leadership to anticipate cautiously and plan accordingly.

[lii].From the point of view of international law, any use of nuclear weapons by an insurgent group would represent a serious violation of the laws of war.  These laws have been 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.

[liii] 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.”

[liv] The law of armed conflict has early jurisprudential and philosophic origins in the Biblical Lex Talionis, the law of exact retaliation. (not the same as the principle of “proportionality”), The “eye for eye, tooth for tooth” can be found in three separate passages of the Jewish Torah, or Biblical Pentateuch. These Torah rules are likely related to the Code of Hammurabi (c. 1728- expression 1686 BCE) – the first written evidence of penalizing wrongdoing with exact retaliation. In matters concerning personal injury, the code prescribes an eye for an eye (# 196), breaking bone for bone (#197), and extracting tooth for tooth (#199). Among the ancient Hebrews, we must speak not of the Lex Talionis, but of several. The Lex Talionis appears in only three passages of the Torah. In their sequence of probable antiquity, they are as follows: Exodus 21: 22-25; Deuteronomy 19: 19-21; and Leviticus 24: 17-21.

[lv] 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.

[lvi].There is now a substantial literature that deals with the expected consequences of a nuclear war.  For earlier works by this author, see, for example, 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, see his SURVIVING AMID CHAOS: ISRAEL’S NUCLEAR STRATEGY (Rowman and Littlefield, 2016; 2^nd ed., 2018).

[lvii] 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 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.

[lviii] One may think here of the apocalyptic warning by the High Lama in James Hilton’s Lost Horizon: “The storm…this storm that you talk of…It will be such a one, my son, as the world has not seen before. There will be no safety by arms, no help from authority, no answer in science. It will rage until every flower of culture is trampled, and all human things are leveled in a vast chaos…The Dark Ages that are to come will cover the whole world is a single pall; there will be neither escape nor sanctuary.”

ix].See Samuel Pufendorf, ON THE DUTY OF MAN AND CITIZEN, for an early expression of limits under the law of war:  “As for the force employed in war against the enemy and his property, we should distinguish between what an enemy can suffer without injustice, and what we cannot bring to bear against him, without violating humanity.  For he who has declared himself our enemy, inasmuch as this involves the express threat to bring the worst of evils upon us, by that very act, so far as in him lies, gives us a free hand against himself, without restriction.  Humanity, however, commands that, so far as the clash of arms permits, we do not inflict more mischief upon the enemy than defense, or the vindication of our right, and security for the future, require.”  See ON THE DUTY OF MAN AND CITIZEN ACCORDING TO NATURAL LAW (De Officio Hominis et Civis Juxta Legem Naturalem Libri Duo), Vol. II, tr. by Frank Gardner Moore, New York:  Oceana Publications, Inc., 1964, p. 139.

[lx]Although it cannot be ruled out that an Israeli non-nuclear preemption would lead to nuclear exchanges (this would depend on the effectiveness and breadth of Israeli targeting, the surviving number of enemy nuclear weapons, and the willingness of some enemy leaders to risk Israeli nuclear counter-retaliations), such exchanges appear more likely if Iran were ultimately allowed to deploy nuclear weapons without meaningful interference.

[lxi] 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.

[lxii] See: F.E. Adcock, The Greek and Macedonian Art of War (Berkeley and Los Angeles: University of California Press, 1962), p. 63.

[lxiii] Regarding such a world, 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).

[lxiv] One is 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., 2^nd ed., 2011.

[lxv] 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).

[lxvi]See by this writer, Louis René Beres, at The War Room (Pentagon):  https://warroom.armywarcollege.edu/articles/friction/