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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.

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Reuters Inflates By Millions 1948 Refugees Who Went to Jordan

Jordan’s King Abdullah II addresses the assembly on the opening day of the Global Refugee Forum, in Geneva, Switzerland, Dec. 13, 2023. Photo: Jean-Guy Python/Pool via REUTERS

In an otherwise informative and very important May 15 article shedding light on a worrisome development with respect to Iranian belligerence in the region, Reuters falsely inflated the number of Palestinian Arab refugees who fled to Jordan in the wake of the 1948 war (“Jordan foils arms plot as kingdom caught in Iran-Israel shadow war“):

Most of [King Abdullah’s] 11 million people are of Palestinian origin, because Jordan took in millions of Palestinian refugees fleeing their homeland in the turbulent years following the founding of Israel. [Emphasis added.]
The total Palestinian refugees from the 1948 war who dispersed across the Middle East and beyond did not reach even one million. As Reuters itself reported in recent days, some 700,000 Palestinian Arabs became refugees in the wake of the failed Arab war to annihilate Israel in 1948 — not millions. And only around half of those 700,000 ended up in Jordan. (The Arabic version of the same story on the thwarted weapons smuggling does not contain the “millions” error.)
In 1949, the West Bank had a population of 740,000, including 280,000 refugees, and the East Bank had a population of 470,000, including 70,000 refugees. Taken together, the population of Jordan exceeded 1.2 million inhabitants, two-thirds of whom were of Palestinian origin (Jordanian-Palestinians).
In other words, Jordan took in some 350,000 Palestinian refugees (280,00 from the West Bank and 70,000 from the East Bank), not “millions.” I have contacted Reuters, requesting they issue a correction.

Tamar Sternthal is the director of CAMERA’s Israel Office. A version of this article previously appeared on the CAMERA website.

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Palestinian Boys Arrested in East Jerusalem for Planned Pipe Bomb Attacks

Illustrative: Israeli soldiers search a Palestinian’s car at a checkpoint in Hebron in the West Bank, August 22, 2023. REUTERS/Mussa Qawasma

i24 News — The Jerusalem Police revealed on Tuesday that they had thwarted a planned series of pipe bomb attacks in East Jerusalem.

A month-long investigation by the Central Unit of the Jerusalem District uncovered a cell of four minors, all residents of East Jerusalem, who were plotting attacks against transport vehicles and security forces in the Silwan area.

The investigation found that the boys meticulously planned their attacks, assigning specific roles among themselves for procuring materials, collecting them, monitoring, and placing the bombs. They had begun researching bomb-making on social media and had purchased some of the necessary materials, even conducting unsuccessful experiments with the explosives.

The suspects, who are all 14 years old and attend the same school, were arrested at the beginning of the month. Their detention has been extended several times by the Jerusalem Magistrate Court. Deputy Superintendent Danny Mizrahi stated, “Revealing their plan, which began to be implemented in the materials they purchased, the preparations they made, and the experiments they conducted, prevented harm to people’s lives and thwarted terrorist operations in East Jerusalem.”

Evidence has been collected against them, and a memorandum has been issued to the prosecution as their detention continues pending the filing of an indictment.

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The Gaza War Led Russia to Embrace Hamas, and Use It as Leverage Against the West

Russian President Vladimir Putin shakes hands with Former Iranian President Ebrahim Raisi during a meeting in Moscow, Russia, Dec. 7, 2023. Photo: Sputnik/Sergei Bobylev/Pool via REUTERS

When the Israel-Hamas war broke out in October 2023, Russia had been involved in its “Special Military Operation” in Ukraine for a year and a half. Given the challenges Russia has faced during the war, Putin has sought allies in the so-called “Global South,” and has sought to portray Russia’s war against Ukraine as a war against NATO and what Moscow described as Western neo-colonialism. This overall policy perspective has shifted Russia from its once close bilateral relationship with Israel, which it sees as part of the Western camp, to an increasingly pro-Hamas position.

Interestingly enough however, despite Russia’s rising anti-Israeli (and antisemitic) rhetoric, Israel’s two main goals in its dealing with Russia — the freedom of action for the Israeli air force in Syrian airspace and the continued emigration of Russian Jews to Israel — continued to be achieved. Indeed, Israel expanded its activity in Syria, flying missions all over the country and even bombing the annex of the Iranian embassy in Damascus, an action that was to lead to a serious confrontation between Israel and Iran.

Putin was initially silent during the first few days of the Israel-Hamas war, as the Russian leader was probably assessing its costs and benefits for Russia. On the benefit side, the war diverted US and Western attention from the war in Ukraine, and Putin may have hoped that it would divert US weapons that would have gone to Ukraine to Israel, although Republican Congressional opposition in the US to aid to Ukraine was to serve the same purpose.

In addition, since the Palestinian issue was popular in the Global South, with the exception of the Modi regime in India which remained pro-Israeli — and since US President Joe Biden immediately came out in support of Israel and transferred weapons to the Jewish State — Putin may have hoped that the war would weaken the US position in the Global South.

On the other hand, however, since Iran was an ally of Hamas, there was a danger of a conflict between Israel and Iran, especially when Hezbollah started firing rockets into northern Israel in support of Hamas. In any case, when Putin did publicly respond to the war a few days after the war started, he did not blame Hamas but called the war “a clear example of the failure of US policy in the Middle East which has never defended the interest of the Palestinians in peace talks.”

While Putin did acknowledge Israel’s right to self-defense, saying it had suffered an “unprecedented attack,” he then compared the Israeli invasion of Gaza to the Nazi siege of Leningrad. After Putin’s statement, Russia introduced a UN Security Council (UNSC) resolution calling for a cease-fire and the release of hostages (some of whom were Russian citizens). The US, however, vetoed the Russian UNSC resolution because it did not mention the Hamas attack. Several months later, it was Russia that vetoed a similar US UNSC resolution because it did mention the Hamas attack.  Russia also provided humanitarian aid to the Palestinians in Gaza.

In another effort to demonstrate that Russia had a role to play in the conflict, Putin offered to host a meeting of foreign ministers to bring an end to the war, stating that “we have very stable and trade relations with Israel and we have (had) friendly relations with the Palestinians for decades.” The Russian leader, however, got no support for his planned meeting. Putin then had a belated condolence call with Israeli Prime Minister Benjamin Netanyahu in mid-October, but followed it with a formal invitation to a Hamas delegation to visit Moscow — less than two weeks after the Hamas attack on Israel — thereby appearing to legitimize both the organization and the attack. Needless to say, the Israeli leadership was furious with the visit.

It is possible that the pro-Hamas tilt in Russian foreign policy together with the rising tide of antisemitism in the official Russian press, which was often directed against President Zelensky of Ukraine, who is Jewish, may have encouraged near-pogroms in the North Caucasus soon after the visit of the Hamas delegation. Rioters stormed the airport at Makhachkala, Dagestan, as a flight from Israel was arriving; a Jewish community center was set afire; and a hotel was put under siege as rioters sought to discover if there were any Jews among the guests. While Putin blamed the mob’s actions on Ukraine, the actions of the rioters had to be problematic for him as they served to undermine his description of the Russian Federation as a place of inter-faith and inter-ethnic harmony.

Meanwhile, Russia’s anti-Israeli rhetoric was growing, as the Russian ambassador to the United Nations, Vasily Nebenzya, stated on November 2 that Israel, being an “occupying state” did not have the right to self-defense, under international law. There appeared to be a slight improvement in Russian-Israeli relations in December, as Russian Foreign Minister Sergei Lavrov, speaking at the Doha forum, stated that Hamas had carried out a “terrorist attack” — but followed up this statement by commenting “at the same time it is unacceptable to use this event for the collective punishment of millions of Palestinian people with indiscriminate shelling.”

In looking at the reasons for the change in Moscow’s tone about Hamas, it is possible that Lavrov was appealing to the leadership of the Arab States in attendance who viewed Hamas negatively. This was especially the case of Egypt, Jordan, Saudi Arabia, and the United Arab Emirates. Putin also made another telephone call to Netanyahu, this time according to Russian sources, to discuss the crisis caused by the Hamas attack. According to the Israeli version of the call, Netanyahu criticized Russia’s UN representatives for their “anti-Israeli positions,” and the Israeli leader also voiced “robust disapproval” of Russia’s “dangerous cooperation” with Iran. According to the Russian version of the call, Putin highlighted “the catastrophic humanitarian situation in the Gaza Strip.”

In January 2024, Russian-Israeli relations took another turn for the worse, as during a meeting on Syria at Astana, Kazakhstan, the Russian special representative for Syria, Alexander Lavrentyev, stated, in reference to South Africa’s lawsuit at the International Court of Justice accusing Israel of genocide, that Israel’s actions in Gaza represent a “real crime” which “can even be interpreted as genocide.” In addition, Russian Foreign Ministry spokeswoman Maria Zakharova criticized Germany for defending Israel at the International Court of Justice, given Germany’s actions in World War Two, and she went on to compare Germany’s defense of Israel with its support for Ukraine.

Meanwhile, Russia was stepping up its efforts to woo the Global South. Taking a page from the old Soviet playbook, when the USSR was wooing the Third World with the Soviet Afro-Asian Peoples Solidarity Association, Putin created, through his United Russia Party, an organization called “The Forum of Supporters for the Fight Against Neocolonialism and the Freedom of Nations.” Meeting in Moscow in mid-February, the organization expressed solidarity with the Palestinians.

Putin also sought to exploit the growing crisis in Gaza to once again urge Palestinian unity between Hamas and the Fatah-led Palestinian Authority. To do this, he convened a Palestinian unity conference in Moscow at the end of February. Even though it did not appear that Hamas and Fatah were ready to agree to unify — so deep were their differences — neither group felt able to resist Moscow’s invitation. For Hamas, which was getting battered by Israeli attacks, Russia offered important diplomatic cover, especially in the UN, while the Palestinian Authority, which had been sidelined by the ongoing conflict in Gaza, may have seen the Moscow meeting as a means of improving its diplomatic position. In any case, Palestinian Authority leader Mahmoud Abbas did not want to alienate Russia by refusing to participate in the meeting.

Despite the failure of many such “unity” conferences in the past, Putin may have hoped that the rapidly deteriorating situation in Gaza would propel the two major Palestinian groups toward unity. Indeed at the start of the conference, Lavrov offered to the Palestinian groups the services of Russian Deputy Foreign Minister and special envoy to the Middle East, Mikhail Bogdanov, as well as the head of the Oriental Institute of the Russian Academy of Sciences, Vitaly Naumkin, to provide “advisory services” to help mediate the discussions. Unfortunately for Moscow, however, the meeting turned out to be a failure despite the final communique calling for unity. Еven the pretense of unity was shattered two weeks after the conference when Hamas attacked Abbas’ choice for the Palestinian Authority’s new Prime Minister, Mohamed Mustafa, a close confidant of Abbas, asserting that the choice was made without consulting it, despite the meeting in Moscow. For its part, the Palestinian Authority attacked Hamas for not consulting it, “when it made the decision to undertake the October 7 adventure which brought down upon the Palestinian people a disaster even more horrible than that of 1948.” Moscow sought to put the best possible light on the continuing Hamas-Fatah conflict by praising the appointment of Mustafa, while also hoping that he would “enjoy the support of the entire Palestinian population.”

As Moscow was trying to forge Palestinian unity, its relations with Israel continued to deteriorate. The Russian deputy UN ambassador, Maria Zabolotskaya, cast doubt on the report by Pramila Patten, the UN Secretary General’s special representative for sexual violence in conflict, about rapes by Hamas fighters during their attack on Israel on October 7. Zabolotskaya, who had questioned Patten’s report on rapes by Russian soldiers in Ukraine, attacked the report on Hamas, calling it a “half-truth which in no way gives a universal picture of what is happening.”

In April, Russia faced its most serious crisis of the war. Up until this time, Moscow had been protecting Hamas at the UN, denouncing Israeli activities in Gaza, and blaming the US for the war in Gaza, all the time trying to improve its position in the Global South at the expense of the United States. In April, however, Iran and Israel directly attacked each other, raising the possibility of a wider war that could have pulled in the United States and caused a US-Iranian war, which would pose very difficult problems of choice for Moscow, given its close tie to Iran on which it continued to depend for drones and missiles. Consequently, Russia sought to play down the conflict (as did the US) and seemed satisfied by April 19 that it did not escalate into the wider Middle East war, which it may well have feared.

In looking at Moscow’s response to the escalation between Israel and Iran there are several things to note. First, as might be expected, Russia criticized Israel for its attack on the embassy annex while blaming the US as well. Then, when Iran retaliated with its major attack on Israel, Moscow urged Israel to stay calm. The Russian warnings did not succeed in preventing the Israeli retaliatory attack on Iran which destroyed a SAM-300 complex that was guarding an Iranian nuclear installation at Natanz. However, Moscow must have been relieved that the Iranian leadership played down the Israeli attack and saw no need to escalate further. Still, the relative ease with which Israel had destroyed the Russian-built SAM-300 complex had to be of concern to both Russia and Iran because it underlined Iran’s vulnerability. Nonetheless, following the Israeli attack, tension eased, and it appeared — at least in the short run — that a more general Middle East war had been avoided, a situation that Moscow welcomed.

Despite the easing of tension, Russian-Israeli relations continued to deteriorate in April. In early April, Russia supported the Palestinian Authority’s request to obtain full membership in the UN — much to the displeasure of Israel — and even when the US vetoed the Palestinian request, Moscow promised to continue the effort to obtain full UN membership for the Palestinians. A new low in the Russia-Israel relationship was reached on April 19 when Russia urged the UN to sanction Israel for its failure to comply with a UNSC resolution (on which the US had abstained) that called on Israel for a cease-fire during Ramadan. As might be expected, given Russian policy since the war broke out, Russia also condemned the US for its aid to Israel. The Russian call for sanctions against Israel is a useful point of departure to draw some preliminary conclusions about Russian policy toward the Israel-Hamas war.

First, the deterioration of relations between Israel and Russia during the war has been significant. Not only did Moscow legitimize the Hamas attack on Israel by inviting a Hamas delegation to Moscow only two weeks after the Hamas attack, but it also protected Hamas by introducing UN Security Council Resolutions to end the war that made no mention of the Hamas attack while vetoing a US UNSC resolution that mentioned Hamas. It also supported the South African effort to bring genocide charges against Israel at the International Court of Justice, downplayed Israeli claims that Hamas had sexually assaulted Israeli women during its October 7th attack, and called on the UN Security Council to sanction Israel for its actions in Gaza. Still, while Russian invective against Israel, sprinkled with a large dose of antisemitism increased, Russia continued to allow Israeli war planes to fly through Syrian air space to attack Iranian and Hezbollah positions in that country, and it also continued to permit Russian Jewish emigration to Israel. In trying to explain Russian behavior, one can point to Moscow’s desire to maintain high-tech trade relations with Israel, and also its possible concern that with Assad’s still shaky control over Syria, Israel might move to help Assad’s enemies.

Second, at least by default, Russia has benefited in the Global South from the continued flow of US arms to Israel during the war, a policy that was unpopular in the Global South (except in India where the Modi regime is closely allied to Israel) where the Palestinian issue has resonated. By supplying humanitarian aid to Gaza and backing the Palestinian positions at the UN, Moscow could claim an improved position in the Global South, even as it sought to conflate its war in Ukraine with the Palestinian struggle against Israel. Still, the Russian position was not without its problems. Hamas is unpopular with the leaderships of a number of Arab states which Moscow has been courting, such as Egypt, Jordan, the United Arab Emirates, and Saudi Arabia, and the clash between Israel and Iran in April 2024 had the potential of escalating into a full-scale war that would have threatened Russia’s ally Iran, especially if the US got directly involved in the conflict.

A third preliminary conclusion that could be drawn from this study is that Russia has had little influence over the events that transpired after the Hamas attack of October 7th. Thus its call for an international conference to settle the war proved unsuccessful; the key diplomatic efforts to achieve a cease-fire were undertaken by the US, Egypt, and Qatar, not Russia; despite a major diplomatic effort, Moscow was unable to forge a reconciliation between Hamas and the Palestinian Authority, and Russian was even unable to extract all the Russian citizens who were held hostage by Hamas despite all that Russia had done diplomatically for the Palestinian organization. Finally, despite Moscow’s warnings, Israel attacked Iran directly, an event that also showed the vulnerability of Russia’s SAM-300 system.

In sum, in the first six months of the war, it can be said that while Russia may have gained politically from the war — because of the close US-Israeli relationship — its influence in the conflict was quite limited and the deterioration of Russian-Israeli relations may yet change the Israeli position on the Russian invasion of Ukraine.

Prof. Robert Freedman is one of the leading U.S. authorities on Israel, the Middle East, and American foreign policy. He is a former President, the Hebrew University in Baltimore, and currently is a Visiting Professor at Johns Hopkins University. His has advised policymakers in State Department, the Central Intelligence Agency, the Israeli Defense Ministry and the Israeli Foreign Ministry, and has been a commentator on major American news outlets. A version of this article was originally published by The BESA Center.

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