21 July 2002
STRIKING FIRST UNDER
by Louis Rene Beres
Professor, Department of Political Science
Israel, facing certain Arab attacks in June 1967, opted to strike first itself. Today, with the winds of war blowing again in the Middle East - winds substantially more ominous than those of 1967 - Israel may again have to consider a strategy of preemption. Significantly, such a strategy could be entirely consistent with international law.
Where it is understood as "anticipatory self-defense," the customary right to preempt has its modern origins in what is known as the CAROLINE incident. Here, during the unsuccessful rebellion of 1837 in Upper Canada against British rule, 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, then 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."
Strategic circumstances and the consequences of strategic surprise have changed a great deal since the CAROLINE. Today, in an age of chemical/biological/nuclear weaponry, the time available to a vulnerable state could be notably very short. From the standpoint of Israel, now facing multiple adversaries endowed with developing weapons of mass destruction and ballistic missiles, there is every reason to believe that a future resort to anticipatory self-defense would be well-founded in international law.
Some legal scholars argue that the right of anticipatory self-defense expressed by the CAROLINE has now been overriden by the specific language of the United Nations Charter. In this view, Article 51 fashions a new and more restrictive statement on self-defense, one that relies on the literal qualification of a prior "armed attack."
This narrowly technical interpretation ignores that international law cannot compel any state to wait until it absorbs a devastating or even lethal first strike before acting to protect itself. Significantly, both the Security Council and the General Assembly refused to condemn Israel for its 1967 preemptive attacks against certain Arab states, thereby signifying implicit approval by the United Nations of Israel's lawful resort to anticipatory self-defense.
The right of self-defense by forestalling an attack is well established in classical international law. In 1625, Hugo Grotius, in Book II of THE LAW OF WAR AND PEACE, indicated 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 said a bit later on in the text: "It be lawful to kill him who is preparing to kill...." Similarly,in his famous text of 1758 known as THE LAW OF NATIONS, Emmerich de Vattel affirms that "The safest plan is to prevent evil," and that to do so a nation may even "anticipate the other's design...."
Appropriately, because we are here concerned with the prospect of Israel's preemptive strikes, both Grotius and Vattel - the founding fathers of international law - parallel the Jewish interpreters. The Torah contains a provision exonerating from guilt a potential victim of robbery with possible violence, if - in self defense - he struck down and 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). Although these arguments speak more generally of interpersonal relations than of international relations in particular, they are assuredly valid for the latter by extrapolation.
Israel's right to preempt under international law is strengthened further by the ongoing nature of belligerency with enemy states.
According to Grotius, citing to Deuteronomy in THE LAW OF PRIZE AND BOOTY, the ancient Israelites were fully exempted from the issuance of warnings in dealing with existing enemies (what we would call today "protracted war" - exactly the formal condition that now obtains between Israel and all Arab states except Egypt and Jordan). 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 precise notifications, 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."
There is much to be studied here by Israel's military planners and by its legal advisors in the Ministry of Defense and the Ministry of Foreign Affairs. The most menacing enemy states in this regard are now Iraq and Iran. It may or may not be operationally infeasible to preemptively destroy pertinent Iraqi and Iranian military targets, but the Israeli decision on preemption should not be inhibited for solely legal reasons. International law is not a suicide pact.
LOUIS RENE BERES was educated at Princeton (Ph.D., 1971) and publishes widely on international law and Israeli defense issues. His work is well- known to the current Prime Minister and to Israel's military and intelligence communities.