The right of self-defense by forestalling an attack was already established by Hugo Grotius in Book II of The Law of War and Peace in 1625. 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 already been suffered, but also in advance, where “the deed may be anticipated.” Or as he says a bit further on in the same chapter, “It be lawful to kill him who is preparing to kill….”
A similar position is 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.”
Appropriately, in view of present concerns, both Grotius and Vattel parallel the Jewish interpreters, although the latter speak more generally of interpersonal relations than of international relations in particular. The Torah contains a 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.”
Grotius and Vattel both caution against abusing the right of anticipatory self-defense as a pretext for aggression, but this is an abuse that Israel, in its current configuration of ties to the Arab world, cannot possibly commit. As Iran and the Arab world, excepting Egypt, consider themselves in a formal condition of war with the Jewish state, any Israeli preemption against any of its pertinent Islamic Arab enemies would, in the strictest legal sense, not be an act of anticipatory self-defense, but rather only one more military operation in an ongoing and protracted war.
It follows that such an operation’s legality would have to be appraised exclusively in terms of its conformance with the laws of war of international law (jus in bello). To identify such an operation as an act of aggression against another state that has already declared itself at war with Israel would be jurisprudential nonsense.
(Continued Next Week)