Law and War; on Israel's Side

Article excerpt


International law is not a suicide pact. When Iran's president calls repeatedly for Israel's annihilation "Israel must be wiped off the map" he demands nothing less than genocide. In clear violation of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, President Mahmoud Ahmadinejad's call is quite literally illegal. Not surprisingly, in view of Iran's support of Hezbollah and its unwillingness to abide by its codified obligations under the Nuclear Nonproliferation Treaty, it is also a stark affront to the U.N. Charter.

Iran is now finalizing construction of nuclear weapons. Iran openly views nuclear weapons as acceptable implements to create "a world without Zionism." As for any sort of reconciliation with Israel, Iran's president has declared menacingly, "Anybody who recognizes Israel will burn in the fire of the Islamic nation's fury; any Islamic leader who recognizes the Zionist regime means he is acknowledging the surrender and defeat of the Islamic world."

Israel's leaders will soon have to make vitally important decisions on launching defensive first strikes. Faced with an unambiguously genocidal regime in Tehran, these Israeli leaders cannot be expected to sit back and wait for Tehran to fire lethal volleys of atomic weapons. Less than half the size of a county in California, Israel's wiggle room in matters of strategic survival is less than limited.

Although Israel has never threatened Iran with pre-emption, the Islamic republic has somehow managed to extrapolate such a threat from an awareness of its own aggressive intentions. Knowing that Israel has much to fear from Iran's dangerous nuclear program, Iran's leaders now merely assert that the "Zionist entity" is preparing for a pre-emptive strike. Despite the complete absence of any threats from Israel, Iran now openly states its intention to strike first. Iran now threatens, somewhat caricaturely, to pre-empt an unplanned pre-emption.

Soon, Israel could have little choice but to strike first itself. Such a preemption, assuredly non-nuclear, would be mandated by an Iranian-induced escalatory spiral of strategic ambiguities. Although it is likely that Israel's impressive Arrow ballistic missile defense would afford some substantial protection from incoming nuclear warheads, this system would also have some leakage. But when dealing with nuclear weapons, no leakage could ever be tolerable.

The Jewish state, facing full-blown Arab attacks in June 1967, correctly opted to strike first itself. From the standpoint of international law, this preemption against military targets was a textbook example of "anticipatory self-defense." What about the future?

"International custom" is one of several sources of international law listed at Article 38 of the Statute of the International Court of Justice. Where it is understood as "anticipatory self-defense," the customary right to preempt has its modern origins in "the Caroline incident." During the unsuccessful rebellion against British rule in 1837 in Upper Canada, it was established that the serious threat of armed attack may justify militarily defensive action.

In an exchange of diplomatic notes between the governments of the United States and Great Britain, U.S. Secretary of State Daniel Webster outlined a framework for self-defense which did not require a prior attack. 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 of deliberation. …