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Israel Has a Legal Option to Prevent Iranian Nuclear Weapons: The Use of Force
FILE PHOTO: Iranian demonstrators attend an anti-Israeli gathering in front of the British Embassy in Tehran, Iran, April 14, 2024. Photo: Majid Asgaripour/WANA (West Asia News Agency) via REUTERS
Though Iran describes its drone and missile attack on Israel as “retaliation,” it is actually an act of aggression. If Iran were an already-nuclear enemy state, Israel’s capacity for lawful self-defense would be glaringly limited. But as Iran is still pre-nuclear, the Iranian aggression could prove net-gainful for Israel. In essence, this Iranian crime offers Israel an 11th hour opportunity to prevent enemy nuclearization. In formal legal terms, such opportunity falls under the heading of “anticipatory self-defense.”
To be sure, the tangible human and material costs to Israel of any further escalation could be very high, but fighting against a not-yet-nuclear enemy that initiated the aggression would represent Israel’s best chance to avoid an eventual nuclear war.
Among other derelictions, Tehran’s earlier assurance that its strike against Israel would be limited “to avoid escalations” was disingenuous. After all, during any crisis search for “escalation dominance” by an already-nuclear Israel and a not-yet-nuclear Iran, competitive risk-taking would favor the former.
Under authoritative international law, defensive first strikes or acts of “preemption” could be permissible in existential-threat circumstances. But even if resorts to anticipatory self-defense would be deemed lawful or law-enforcing, they could still prove unreasonably dangerous, strategically misconceived, tangibly ineffectual, and/or irrational. It follows, going forward, that Israel will need to evaluate all anticipatory self-defense options along the two discrete standards of law and strategy.
From the standpoint of international law, preemption could represent a fully permissible option. Though subject to important constraints and conditions, the right of “anticipatory self-defense” is well established. And while a “bolt from the blue” Israeli preemption against Iran could involve assorted difficulties, such difficulties are unlikely to apply in an ongoing conventional war. In this connection, Iran had repeatedly declared its intention to strike Israel as “punishment.”
In law, this declaration, now fulfilled, was an open admission of mens rea or criminal intent.
The right of self-defense by forestalling an attack appears in Hugo Grotius’ 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 been suffered, but also in advance, that is, “where the deed may be anticipated.” Or, as he explains a bit further on in the same chapter, “It be lawful to kill him who is preparing to kill….”
A similar position was 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.”
Grotius and Vattel draw upon the early Jewish interpreters, although the latter speak more generally of interpersonal relations than about international relations. Additionally, the Torah contains a prominent 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).
Even if Iran were not in a condition of active belligerency with the Jewish state, an Israeli preemptive action could still be law-enforcing. Israel, in the fashion of every state under world law, is entitled to existential self-defense. Today, in an age of uniquely destructive weaponry, international law does not require Israel or any other state to expose its citizens to atomic destruction. Especially in circumstances where active hostilities are already underway — that is, during times of conventional warfighting — Israel’s legal right to attack selected Iranian nuclear facilities would be unassailable.
Under current conflict circumstances, an Israeli non-nuclear preemption would represent the best available way to reduce the risks of a regional nuclear war. If Israel waits until the next “ordinary” war with Iran, that recalcitrant foe could conceivably launch nuclear attacks. Even if a then-nuclear Tehran would strike first with conventional weapons, Israel could still have no meaningful tactical choice but to undertake a nuclear retaliation.
The right of anticipatory self defense has its modern origins in the Caroline incident, an event that concerned the unsuccessful rebellion of 1837 in Upper Canada against British rule. Following this event, the serious threat of armed attack has generally been taken to justify a state’s militarily defensive action. In an exchange of diplomatic notes between the governments of the United States and Great Britain, then-US Secretary of State Daniel Webster outlined a framework for self defense which did not require an actual attack. In it, 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.”
These are bewildering matters. What should Israeli planners conclude? The answer depends in part upon their view of Iran’s reciprocal judgments concerning Israel’s leaders. Do these judgments suggest a leadership that believes it can gain the upper hand with a nuclear counter-retaliation? Or do they suggest a leadership that believes such counter-retaliation would bring upon Israel variously intolerable levels of adversarial destruction?
All relevant calculations assume rationality. In the absence of calculations that compare the costs and benefits of strategic alternatives, what will likely happen between Israel and Iran would remain a matter of conjecture. The prospect of non-rational judgments in this relationship is always plausible, especially as the influence of Islamist/Jihadist ideology remains strongly determinative among Iranian decision-making elites.
Iran’s attack on Israel is anything but a lawful retaliation.
Under all pertinent international law, Iran’s attack represents an overt act of aggression, but one that now also leaves Jerusalem with a not-to-be ignored opportunity to preemptively destroy selected Iranian military targets. Such a non-nuclear preemption opportunity could express the optimal way to prevent future and irremediably destructive nuclear aggressions from Iran.
While Israel’s active defenses have been remarkably successful against the Iranian missile and drone attacks, more offensive measures will be required. It could never be sufficiently purposeful or law enforcing for Israel to confine its reaction to the current Iranian attacks to passive strategies of interception. Above all other strategic considerations, the Iranian attacks, whether halted or ongoing, offer Israel a life-saving opportunity to avoid later preemptions against an already-nuclear enemy.
“The safety of the People,” observed ancient Roman philosopher Cicero, “is the highest law.” Now, the safety of the People of Israel could best be served by waging a just war against a pre-nuclear Iran. Though such a war might still involve significant human and material costs, it would be substantially less catastrophic than war between two already-nuclear powers. This is the case even if an Iran that had crossed the nuclear threshold was verifiably “less powerful” than a nuclear Israel. In any pertinent nuclear conflict scenario, even a “weaker” Iran could wreak intolerable harms upon Israel.
All things considered, if an ongoing or future war with Iran is inevitable, it would be much safer for Jerusalem to proceed as the sole nuclear combatant. Accordingly, this is not a moment for Israeli strategic thinking to become confused or shortsighted. Calculating that immediate war curtailment is necessarily the best available option would subject Israel to future instances of existential harm. This could include a full-scale nuclear war.
The author is Emeritus Professor of Political Science and International Law at Purdue University. Educated at Princeton (Ph.D., 1971), he is the author of twelve major books dealing with international relations, military strategy and world affairs. Dr. Beres was born in Zürich, Switzerland on August 31, 1945, and lectures and publishes widely on issues of terrorism, counter-terrorism, nuclear strategy and nuclear war. Professor Beres’ latest book is Surviving Amid Chaos: Israel’s Nuclear Strategy (2016; 2nd ed. 2018). A version of this article was originally published by Israel National News.
The post Israel Has a Legal Option to Prevent Iranian Nuclear Weapons: The Use of Force first appeared on Algemeiner.com.
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Jewish leaders welcome Canada’s decision to convene a second national antisemitism forum
Just one day after Israel’s president Isaac Herzog called on Prime Minister Justin Trudeau to take “firm and decisive action” to combat the “intolerable wave of antisemitic attacks against the Canadian Jewish community”, the federal government announced on Dec. 20 it is convening a national forum on combating antisemitism.
Details are scarce, but the forum will take place in Ottawa in February 2025, under the direction of the justice department and the department of public safety. Political leaders from all three levels of government will be invited to discuss how to better coordinate the justice system and law enforcement and focus specifically on “the growing public safety threat of antisemitism,” according to a media release from the Department of Justice on Dec. 20.
“Canada has seen a troubling rise in antisemitic incidents, threats, and hate crimes,” the release stated. “The Government of Canada recognizes the urgent need for national leadership to ensure Jewish Canadians feel safe in their synagogues, schools, and communities.”
This announcement comes at the end of a turbulent week that saw Congregation Beth Tikvah Ahavat Shalom Nusach Hoari, west of Montreal, firebombed overnight on Dec. 18. It marked the second time since Oct. 7, 2023, that the Dollard-des-Ormeaux shul and adjacent Jewish school were targeted, as well as the West Island office of Montreal’s Federation CJA.
Then, on Dec. 20, in Toronto, the Bais Chaya Mushka girls’ school was attacked by unknown gunmen who opened fire at 2:30 a.m. into the front of the building. It was the third time this year that the school has come under fire. No one was injured in either incident.
Jewish leaders have been pressing Ottawa to do more than issue sympathetic statements condemning antisemitism. They want to address meaningful gaps in policing across jurisdictions, and to press police to better enforce existing laws. In 2023, there were 900 hate crimes against Jews reported to Canadian police; Jews were the target of 70 percent of all religion-motivated hate crimes.
However, many community leaders point out that there have been few prosecutions, and are decrying that many of the charges eventually get dropped. Weekly antisemitic and anti-Israel street protests continue in many Canadian cities. Canadian and U.S. federal authorities have recently foiled several terrorist plots involving suspects who were charged with planning attacks on Jews in Ottawa, New York and Richmond Hill, Ont.
Second antisemitism summit since 2021
The February forum is being convened less than three years after the first antisemitism summit was held in July 2021, in the wake of the brief Hamas-Israel war earlier that year. Canada’s first special envoy on antisemitism, Irwin Cotler, helped steer that day-long event, which was held virtually due to the COVID pandemic. The guest list was restricted at first to Liberal ministers and lawmakers.
Following that first summit, the Canadian heritage ministry promised a series of actions to combat antisemitism, and, as The CJN has reported, some of these have come into being:
- Boosting financial help for Jewish communities in the government’s next anti-racism action plan, which was launched earlier this year
- Adjustment of the Security Infrastructure Program, announced this year, to help Jewish places of worship, camps, schools and offices more easily afford to hire security guards, and fortify their security equipment
- Introduced an online hate bill, aimed at tackling hate speech on social media. It has not been adopted yet, due to concerns about infringement on free speech
- More money and staff for the work of the office of the special envoy to preserve Holocaust remembrance and combat antisemitism, including a new handbook on antisemitism, issued Oct. 31
- Funding to revamp the national Holocaust monument signage in Ottawa
- Hearings into antisemitism held on Parliament Hill, specifically looking at campus antisemitism
However, it has been more than a year since domestic antisemitism exploded in the wake of Oct. 7. The violence has cost the lives of more than 800 Israeli soldiers and thousands of Palestinians, including Hamas terrorists, in Gaza.
As of now, it appears that a Jewish Liberal MP from Montreal could play a key role in the summit. Rachel Bendayan, a lawyer who has represented the riding of Outremont since 2019, was named to the federal cabinet on Dec. 20. Aside from her new duties as minister of official languages, Bendayan was named associate minister of public safety.
While Bendayan’s office did not reply to The CJN by publication time, she said she was “honoured and humbled to be sworn in as Minister of Official Languages and Associate Minister of Public Safety,” in a post on social media. “Grateful to share this moment with my family. Ready to get to work.”
Her colleague Anthony Housefather took it as an important signal that Bendayan’s nomination came on the same day as the antisemitism forum announcement.
In July, Housefather, who has since repeatedly called for the Prime Minister to resign, was named special advisor to Trudeau on matters concerning the Jewish community and antisemitism. Housefather has been lobbying for this new summit, behind the scenes and publicly, for months.
“I will work very hard at this forum to push for immediate action and solutions across the levels of government and am gratified that my friend and colleague Rachel Bendayan is the new Associate Minister of Public Safety as her position will allow the Jewish community voice to be even more prominent in giving priority to the issue of anti-Jewish hate,” Housefather said in a statement to The CJN.
Housefather and the Centre for Israel and Jewish Affairs have been working with Special Envoy Deborah Lyons to get this new summit approved. As The CJN reported on Dec. 11, calls for the summit were growing louder in recent weeks.
However, according to Richard Marceau, a CIJA vice-president, a summit of words was meaningless unless such a forum focused specifically on policing, law enforcement and prosecutions.
“The forum’s ultimate value will be determined only by the concrete results that come from it,” said Marceau, adding that the values of all Canadians are at stake, not just for Jewish Canadians.
“Police need more resources and specialized training. Laws need to be enforced, charges need to be laid, and perpetrators must be fully prosecuted to end the domination of our streets by extremists,” he said. “And the glorification of terrorism must finally be made a criminal offence in this country. Through the Forum, we will push for these and other concrete measures—but what we won’t accept are photo ops and platitudes. Action to protect our community and all Canadians is long overdue.”
Ahead of Friday’s summit announcement, the other Canadian Jewish member of the federal cabinet, Ya’ara Saks, the minister of mental health and addictions, stood in solidarity outside the site of the Bais Chaya Mushka school in North York after it was shot at.
Saks told a media conference that no Jewish girl, including her own daughters, should have to wake up every morning and ask whether it is safe to go to school—although she didn’t give away any hints that such a summit announcement was imminent.
“The community has been very clear in what needs to be done,” Saks said. “We need all hands on deck, all heads coming together to navigate forward collectively, collaboratively and with one unified voice to ensure that the Jewish community stays safe.
“I am hopeful that we will all get together and do the right thing on behalf of the Jewish community.”
While full details of the new summit have not been released, its fate could be in jeopardy even before it begins.
Although Bendayan and the other cabinet ministers were sworn in officially on Friday, it is unclear how long the Liberal government will remain in power. Efforts are underway by the Opposition Conservatives and New Democrats to topple the government soon, either through a non-confidence motion when Parliament reconvenes on Jan. 27 or sooner. Conservative Leader Pierre Poilievre is asking the governor general to force Parliament to come back before sooner than Jan. 27.
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UN Extends Peacekeeping Mission Between Syria and Golan Heights
Fences are seen on the ceasefire line between Israel and Syria in the Golan Heights, March 25, 2019. Photo: REUTERS/Ammar Awad
The United Nations Security Council on Friday extended a long-running peacekeeping mission between Syria and the Israeli Golan Heights for six months and expressed concern that military activities in the area could escalate tensions.
Since a lightning rebel offensive ousted Syrian President Bashar al-Assad earlier this month, Israeli troops have moved into the demilitarised zone – created after the 1973 Arab-Israeli war – that is patrolled by the U.N. Disengagement Observer Force (UNDOF).
Israeli officials have described the move as a limited and temporary measure to ensure the security of Israel‘s borders but have given no indication of when the troops might be withdrawn.
In the resolution adopted on Friday, the Security Council stressed “that both parties must abide by the terms of the 1974 Disengagement of Forces Agreement between Israel and the Syrian Arab Republic and scrupulously observe the ceasefire.”
It expressed concern that “the ongoing military activities conducted by any actor in the area of separation continue to have the potential to escalate tensions between Israel and the Syrian Arab Republic, jeopardize the ceasefire between the two countries, and pose a risk to the local civilian population and United Nations personnel on the ground.”
Armed forces from Israel and Syria are not allowed in the demilitarized zone – a 400-square-km (155-square-mile) “Area of Separation” – under the ceasefire arrangement.
U.N. Secretary-General Antonio Guterres said on Thursday: “Let me be clear: There should be no military forces in the area of separation other than U.N. peacekeepers – period.” He also said Israeli airstrikes on Syria were violations of the country’s sovereignty and territorial integrity and “must stop.”
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Shots fired at Bais Chaya Mushka girls school for the third time this year
Bais Chaya Mushka, an elementary girls’ school in Toronto, was shot at early in the morning on Dec. 20, the third time the school has been targeted in the past seven months.
Shots were fired at the school in May and then again in October, on Yom Kippur.
Officers from Toronto Police Service’s 32 Division responded to reports of gunfire to discover six bullet holes in the building’s exterior. No one was inside the school at the time and no injuries were reported.
“It’s incredibly unfortunate that I stand here to discuss yet another shooting at this school,” Supt. Paul MacIntyre of the Organized Crime Enforcement Unit said during a press conference outside the school Friday morning.
Police have made progress in previous incidents at the school, MacIntyre said, stating that two people, a man and a youth, were arrested in connection with the October shooting, and a firearm was recovered. Investigators are now working to determine whether the latest attack is connected to those earlier cases.
“We’ve solved the second case, and the same teams are now working on this investigation,” he said. “With just a few days before Hanukkah, we know how deeply disturbing this is to the Jewish community. We will leave no stone unturned.”
Insp. Roger Desrochers of the Hate Crime Unit said hate crimes require “careful investigation” to determine whether they meet the threshold for charges under the Criminal Code.
“These matters are challenging. Not all offensive actions meet the threshold for criminal charges, and each case must be weighed carefully,” Desrochers said during the presser on Friday afternoon.
Rabbi Yaakov Vidal, principal of the school, said it was challenging to inform parents about the third shooting this year.
“It’s very, very difficult. It’s very, very hard to be woken up in the middle of the night with such news—and it’s now the third time,” Rabbi Vidal said at a press conference outside the school.
“We were not sure if we were able to have school here, due to the police investigation, then we were told it was possible to have school here. I was actually looking for a different location… Parents are very, very frustrated, very afraid to send their kids to school. I am aware of a few that did not send their kids to school today. We hope they once again feel safe to do so every single day, as they deserve.
The school had full-time security during the day when students were present, but overnight security was too expensive, Rabbi Vidal said. “We may have to do this at this point. We’ll have to see what our next step is.”
The recent violence has raised questions about police efforts to protect Jewish institutions. MacIntyre said police have ramped up patrols in recent months under initiatives like Project Resolute but emphasized that officers are also working to balance broader community safety concerns.
When asked whether Jewish institutions should consider armed private security, MacIntyre said he does not support the idea, adding, “We are here to support the community and will continue providing all available resources to ensure their safety.”
Parents picking up their daughters at school expressed both their concern and their determination as the school dealt with a third shooting.
One mother was on the verge of tears as she discussed her decision to send her child to school this morning.
“I don’t even know what to think anymore. It’s the third time. The cops are here, so I feel safe today, but the rest of the time I don’t feel safe,” she said. “These are little girls they’re trying to scare. These idiots should be thrown in jail, but they can’t seem to catch them.”
Her daughter, who suffers from anxiety now, made a grim joke about how easy it is to attack her school, the mother said. “This is my eight year old thinking this. She doesn’t watch violent things.”
Rabbi Yosef Hecht, a Chabad rabbi in Aurora, said he dropped off his two daughters at school this morning “with a very heavy heart,” especially since it was the third shooting.
“Did they catch the people? Do they know who’s behind this? Is it larger than what they are really telling us, is there something larger that we’re not aware of yet?” he asked.
But despite his concerns, he didn’t hesitate to send his children to school. “I felt the school did a good job repairing it temporarily. It shows that, no matter what, we are going to be resolute, strong, and this will just make us stronger and more proud.”
Local leaders call for action
At a press conference earlier in the day, politicians and leaders of the Jewish community were on hand to condemn the shooting and press all levels of government for more action.
The shooting came two days after a Montreal synagogue was firebombed for the second time since Oct. 7, 2023, the date of the Hamas terrorist attacks on Israel and the start of the war in Gaza.
“There are common-sense things that our leaders can do to deal with this problem right away. We need funding for police to get the job done and we need to put a stop to the extremism in our streets that’s inciting this violence. The time for our leaders to speak, to tweet, is over. Now it’s time for them to take action,” said Noah Shack, interim president of the Centre for Israel and Jewish Affairs.
“The fact is, this isn’t an isolated activity, whether it’s a synagogue being firebombed in Montreal or this school here that continues to suffer from gunfire in an effort to intimidate the girls that are here. There should be no daylight between the mayor of this city, the police of this city and the community that is facing this kind of threat day in and day out,” Shack said.
City councillor James Pasternak said Toronto police are stretched thin and need support from provincial police forces and the RCMP, and called for closer ties between elected officials and police forces.
“The police act forbids elected officials from directing police operations but the police act doesn’t stop us from nuance. We have to back up our police services, give them the political will to stop these roving mobs… that are inciting some of the violence that we are seeing in this neighbourhood and across the land,” he said.
Toronto Mayor Olivia Chow, who said in a statement that the shooting was “unacceptable,” was criticized by some Jewish community leaders for her weak stance on the antisemitism that has escalated in the city.
“Mayor Olivia Chow’s continued platitudes in response to antisemitic hate in Toronto ring hollow in the face of her permissive approach to this growing problem,” B’nai Brith Canada stated on social media.
“She has enabled an environment where such acts are allowed to flourish. Banal condemnations without concrete actions leave the Jewish community vulnerable and unsafe.”
Enough is enough. Antisemitism and antisemitic attacks have no place in Toronto.
The latest shooting at the Bais Chaya Mushka Elementary School is unacceptable. Once again students, families, and neighbours are waking up to safety concerns.
My office has been in contact with…
— Mayor Olivia Chow (@MayorOliviaChow) December 20, 2024
Michael Levitt, a former Liberal MP and now the president of the Friends of Simon Wiesenthal Center, who attended the press conference, also laid responsibility on Chow.
“We have not seen the mayor of the city draw a line through this type of activity and come out and be strong enough,” he said. “Sure, when shots are fired, but what about when all the other incidents have gone on? We need our mayor take a stand with the Jewish community and make it clear that keeping the Jewish community safe is a priority.”
MP Ya’ara Saks appeared at the press conference to expressed her support for the Jewish community. She pushed back on the suggestion that Prime Minister Justin Trudeau had not taken the issue seriously enough, pointing to increased funding for federal infrastructure grants, which can now be used for a wider variety of security resources.
This afternoon, the federal government also announced that a second national summit on antisemitism would be convened in February.
The post Shots fired at Bais Chaya Mushka girls school for the third time this year appeared first on The Canadian Jewish News.
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