The following originally appeared in The Jewish Press in March 1992. Today, nearly twenty years later, its arguments remain timely and valid.
Even if Iran and the Arab enemies of Israel were not in a declared condition of belligerence with the Jewish state, Israel’s preemptive action could still be entirely law-enforcing. The customary right of anticipatory self-defense has its modern origins in the Caroline incident, which concerned the unsuccessful rebellion of 1837 in Upper Canada against British rule (a rebellion that aroused sympathy and support in the American Border States). Following this case, the serious threat of armed attack has generally been taken to justify 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 that did not require an actual attack. 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.”
Today, 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. In this view, Article 51 fashions a new, and far more restrictive, statement of self-defense, one that relies on the literal qualification contained at Article 51 “if an armed attack occurs.” This interpretation ignores that international law cannot compel a state to wait until it absorbs a lethal or even a devastating first strike before acting to protect itself.
The argument against the restrictive view of self-defense is reinforced by the apparent weaknesses of the Security Council in offering collective security against an aggressor. Moreover, both the Security Council and the General Assembly refused to censure Israel for its 1967 preemptive attack against certain Arab states, signifying implicit approval by the United Nations of Israel’s particular resort to anticipatory self-defense.
Before Israel could persuasively argue any future instances of anticipatory self-defense under international law, a strong case would have to be made that it had first sought to exhaust peaceful means of settlement. Even a broad view of the doctrine of anticipatory self-defense does not relieve a state of the obligations codified at Article 1, and at Article 2(3) of the UN Charter.
Strictly speaking, of course, these obligations should not be binding upon Israel because of the condition of belligerency declared by its Arab enemies, but, as a practical matter, the global community seems generally to have ignored this condition. It follows that Israel, should it decide upon future instances of “preemption,” would be well advised to demonstrate its prior efforts at peaceful settlement.
Looking over the more than [sixty] years of conflict between Israel and certain Arab states, Israel itself has generally defended its resorts to military force as measures of self-help short of war. For the most part, such defense has had the effect of shifting the burden of jurisprudential responsibility for lawful behavior from the Arab states to Israel, an unfortunate shift because it focuses blame unfairly upon the Jewish state. Furthermore, Israel has often identified its uses of military force as “reprisals,” thereby choosing a problematic concept under international law that compounds one legal mistake with another.
Because under the current Charter system of international law the right of reprisal is essentially contingent upon self-defense, it would be wise for Israel – so long as it chooses to ignore or downplay the declared condition of war announced by its enemies as grounds for different legal justifications for resort to armed force – to confine its rationale of military operations to the continuing right of self-defense. This would be especially reasonable in view of the fact that Israel now faces the threat not only of war, but of genocide.
Genocide is a word with precise jurisprudential meaning. Codified at the Genocide Convention, a treaty 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 “intent to destroy.” Genocide can take different forms. Its victims can be transported to the gas or the gas can be brought to the victims. Either way, the effect is the same: intentional mass murder of defenseless civilian populations.
Ideally, the United States will soon recognize Israel’s precarious position and take decisive steps to reduce Iranian and other preparations for renewed aggression. Failing such steps, Israel may conclude that prompt non-nuclear preemption, as an expression of “anticipatory self-defense” in international law, is the only way to protect itself. Preemption may in fact be the best available means of reducing the risk of regional nuclear war.
There is a lesson in all this for Israel’s enemies and her friends. The real danger to peace in the Middle East is not intercommunal conflict with the Palestinians, but war, and it is in Tehran especially, not Jerusalem, that war is being prepared. Should these preparations continue at a rate that remains ominous for essential Israeli security, Israel will almost certainly have to strike first itself. Should the United States seek genuine stability for the region, it will have to avoid treating Iran as a non-risk factor. Assuredly, Jerusalem cannot base its survival upon the ways of Washington geopolitics.