The Iranian nuclear negotiators delegation in Geneva talks, November 22, 2013. Photo: REUTERS/Fabrice Coffrini/PoolUnder international law, war and genocide are not mutually exclusive. On the contrary, war is sometimes recognized – both historically and jurisprudentially – as an essential means of carrying out genocide. For Israel, in particular, still facing determined Iranian nuclearization, any such recognition obviously warrants very special attention.
“In a dark time,” says the American poet Theodore Roethke, “the eye begins to see.” Today, the Iranian nuclear threat burns brightly in Jerusalem’s visual field.
Today, more than ever, this unconventional peril remains both genuinely unprecedented and fixedly existential.
Correspondingly, Jerusalem’s moral imperative should appear plain and unambiguous. After all, every state’s first obligation must be the assurance of protection.
Always, we may learn from the philosophers, from Aristotle to Grotius to Vattel to Bodin to Locke and to Hobbes, innocent life must be preserved.
When Iranian leaders openly proclaim their belief in the Shi’ite apocalypse, a series of final battles presumed indispensable for transforming the profane “world of war” into the sacred “world of Islam,” essential self-defense becomes a uniquely urgent Israeli concern. Even if such proclamations should turn out to be contrived or inauthentic, a fully rational Iranian nuclear adversary could still pose a very grave threat to Israel. This is because “two scorpions in a bottle” – the original J. Robert Oppenheimer metaphor of nuclear deterrence then obtaining between the US and USSR – are always apt to react precipitously in a world of organized fear and structured uncertainty.
There is more to worry about here than “mere” eschatology. A rational Iranian “scorpion” and/or a rational Israeli “scorpion” could calculate that the risks of waiting passively to be struck first would actually exceed the risks of “stinging” first. However unwittingly, such altogether rational calculations could still result in a nuclear war.
Does “justice” also have a voice in this more expressly strategic matter? Some would argue forcefully against any eleventh- hour Israeli preemption on the grounds of a presumed need for “equity.”
Israel already has nuclear weapons, goes this seemingly plausible argument. Why, then, should Iran be treated differently? Furthermore, international law speaks repeatedly of “sovereign equality.” Isn’t there an evident lack of “fairness” in denying weapons to Iran, weapons that have tacitly been allowed to Israel? And shouldn’t Israel be compelled to join the 1968 Nuclear Non-Proliferation Treaty (NPT), a pact to which Iran is a longtime party? Here is an informed reply. Israel’s nuclear forces remain “deliberately ambiguous.” They have never been brandished in threatening fashion by any of Israel’s civilian or military leaders. Never.
Nor has Israel called for eliminating any other state. Ever. Israel’s undeclared nuclear weapons exist only to protect the Jewish state from explicit and extraordinary forms of aggression. Understandably, this includes the prevention of another Jewish genocide, this time of new crimes against humanity generated by a conspicuously recalcitrant adversary’s illegally-acquired nuclear weapons.
Without its nuclear weapons – US President Barack Obama’s plea for “a world free of nuclear weapons” notwithstanding – Israel could never survive.
David Ben-Gurion, Israel’s first prime minister, had already understood a key thought from Prussian military theorist Carl von Clausewitz’s On War: “Mass counts.”
Israel’s enemies have mass. Israel has none. Without a suitable “equalizer” amid the “scorpions,” Israel would remain vulnerable to sudden and catastrophic annihilation.
Reassuringly, Israel’s nuclear deterrent force would never be used except in defensive reprisal for massive enemy first strikes. In practice, this would mean primarily Iranian attacks involving nuclear and/or certain biological weapons. For the time being, none of Israel’s frontline enemies are nuclear, but, meaningfully, this could change. One such prospect concerns Egypt and Saudi Arabia, both states also increasingly concerned about an impending Shi’ite nuclear adversary in Teheran. Coup-vulnerable Pakistan, already nuclear, could at some point be taken over by assorted al-Qaida elements.
If it should actually have to face national nuclear enemies one day, Israel could then choose to rely upon threatening to use its own nuclear weapons to reduce the risks of unconventional war.
This could make strategic sense only insofar as the newly-nuclear enemy state(s) would 1) remain rational; and 2) remain convinced that Israel would retaliate if attacked, with nuclear, and/or other devastating biological weapons.
For Israel and its US ally, there would be very complex problems to identify and solve if an enemy state such as Iran were finally allowed to “go nuclear.”
These problems could undermine the neat but inherently problematic notion of any sustainable nuclear balance in the region. The Middle East might not readily support the comforting equilibrium that had once characterized US-Soviet relations. Ironically, moreover, such an historic balance may already be under threat, with the seeming emergence, post-Ukraine, of a second Cold War between America and Russia.
Whether for reasons of miscalculation, accident, outright irrationality or the presumed imperatives of “jihad,” an enemy state in this fevered neighborhood could still opt to launch a nuclear first strike against Israel, in spite of that country’s own substantial and secure nuclear capability.
Following any enemy nuclear aggression, Israel would assuredly respond with some form of nuclear retaliatory strike. Although nothing is publicly known about Israel’s precise targeting doctrine, any such reprisal would likely be launched against the aggressor’s capital city, and/or against similarly high-value urban targets. By extrapolation from what is generally known about the expected logic of nuclear deterrence, there could be no conceivable assurances that in response to this sort of openly genocidal aggression Israel would limit itself to striking back against exclusively military targets.
International law, including the law of armed conflict, is never a suicide pact.
What if enemy first strikes were to involve “only” chemical and/or “minor” biological weapons? In this case, Israel might still launch a presumptively proportionate nuclear reprisal, but this would depend largely upon Israel’s calculated expectations of follow-on aggression, and also on its associated determinations of comparative damage- limitation. Should Israel absorb a massive conventional first strike, a nuclear retaliation could not be ruled out. This reasoning is plausible to the extent that 1) the aggressor is perceived to hold nuclear or other weapons of mass destruction in reserve; and/or 2) Israel’s leaders believe that non-nuclear retaliations could not prevent national annihilation.
Significantly, recognizing Israel’s small size and corollary population concentrations, the calculated threshold of existential harm would be determinably lower than Israel’s total physical devastation.
For example, a single nuclear missile striking Tel Aviv could produce an effectively existential outcome. Facing imminent genocidal attacks, Israel could decide to preempt such anticipated enemy aggression with conventional forces. The targeted state’s response would then determine Israel’s subsequent moves. If this response were in any way nuclear, of course, Israel would assuredly undertake a nuclear counter-retaliation.
If this enemy retaliation were to involve chemical and/or biological weapons, Israel might also plan to take a quantum leap of escalatory initiative, of the sort known in more precise military parlance as “escalation dominance.” It could, in certain circumstances, be judged indispensable to Israel’s preservation of intra-war deterrence.
If an enemy state’s response to an Israeli preemption were limited to hard-target conventional strikes, it is improbable that Israel would then resort to nuclear counter-retaliation. But if the enemy state’s conventional retaliation were an all-out strike, one directed toward Israel’s civilian populations, as well as to Israeli military targets, an Israeli nuclear counter-retaliation could not be excluded. Such a counter-retaliation could be ruled out only if the enemy state’s conventional retaliations were entirely proportionate to Israel’s preemption; confined entirely to Israeli military targets; circumscribed by the codified and customary legal limits of “military necessity”; and accompanied by explicit and verifiable assurances of no further escalation.
It is almost inconceivable that Israel would ever decide to preempt any enemy state aggression with a nuclear defensive strike. While particular circumstances could actually arise where such a defensive strike would be completely rational, and also lawful according to the authoritative 1996 Advisory Opinion of the International Court of Justice, it is improbable that Israel would ever permit itself to reach such all-or-nothing circumstances. It should also be noted, in this connection, that Israel has always been pledged to the “purity of arms,” and, correspondingly, to strict compliance with humanitarian international law.
An Israeli nuclear preemption could be expected only if: 1) Israel’s enemy or enemies had unexpectedly acquired nuclear or other unconventional weapons presumed capable of destroying the Jewish state; 2) this enemy state had been explicit that its genocidal intentions paralleled its capabilities; 3) this state was reliably believed ready to begin a final countdown to launch; and 4) Israel believed that non-nuclear preemptions could not possibly achieve levels of damage-limitation consistent with its own national survival.
The primary point of Israel’s nuclear forces must always be deterrence ex ante, not preemption or reprisal ex post. If, however, nuclear weapons should ever be introduced into a conflict between Israel and one or more of the several states that wish to destroy it, some form of nuclear war fighting could ensue. This would be the case so long as: a) enemy first-strikes against Israel would not destroy the Jewish state’s second-strike nuclear capability; b) enemy state retaliations for Israeli conventional preemption would not destroy Israel’s nuclear counter-retaliatory capability; c) Israeli preemptive strikes involving nuclear weapons would not destroy enemy state second-strike nuclear capabilities; and d) Israeli retaliation for enemy state conventional first strikes would not destroy enemy state nuclear counter-retaliatory capability.
From the standpoint of protecting its security and survival, this means that Israel should now take proper steps to ensure the likelihood of a) and b) above, and the unlikelihood of c) and d). It is always in Israel’s interest to avoid nuclear war fighting wherever possible.
For Israel, both nuclear and non-nuclear preemptions of enemy unconventional aggressions could lead to nuclear exchanges. This would depend, in part, upon the effectiveness and breadth of Israeli targeting, the surviving number of enemy nuclear weapons, and the willingness of enemy leaders to risk Israeli nuclear counter-retaliations. The likelihood of nuclear exchanges would be greatest where potential Arab and/or Iranian aggressors were allowed to deploy ever-larger numbers of certain unconventional weapons with impunity, that is, without eliciting timely, appropriate and effective Israeli preemptions.
Should such an ill-considered deployment be allowed, Israel could forfeit the non-nuclear preemption option. Its only alternatives to nuclear preemption would then be: 1) a no-longer viable conventional preemption; or 2) a decision to do nothing, thereby relying for long-term security on the presumed and interpenetrating logic of nuclear deterrence and active defense (“Arrow”).This means, at least in principle, that the risks of an Israeli nuclear preemption, of nuclear exchanges with an enemy state, and of enemy nuclear first strikes could all still be reduced by purposeful Israeli non-nuclear preemptions.
Under international law, such preemptions could be entirely permissible as expressions of “anticipatory self defense” against genocide. Nonetheless, Israel’s ultimate judgments here will be broadly operational and tactical, rather than narrowly legal or jurisprudential.
The author was educated at Princeton (PhD, 1971), and is the author of many major books and articles dealing with nuclear strategy and nuclear war. His most recent publications can be found in The Harvard National Security Journal (Harvard Law School); The Brown Journal of World Affairs; The Israel Journal of Foreign Affairs; The International Journal of Intelligence and Counterintelligence; Herzliya Conference Working Papers 2013; International Security (Harvard); U.S. News & World Report; The Jerusalem Post and The Atlantic.
Professor Beres was born in Zürich, Switzerland, at the end of World War II.