Amend International Law To Allow Preemptive Strike on Iran

By Alan M. Dershowitz

Published August 20, 2004, issue of August 20, 2004.
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Intelligence reports about Iran’s capacity to produce nuclear weapons aimed at Israel are becoming ominous. Unless diplomatic pressure causes the Iranian mullahs to stop the project, Iran may be ready to deliver nuclear bombs against Israeli civilian targets within a few short years. Some Iranian leaders, such as former president Hashemi Rafsanjani, have made it clear that this is precisely what they intend to do. Killing 5 million Jews would be worth losing 15 million Iranians in a retaliatory Israeli strike, according to Rafsanjani’s calculations.

No democracy can wait until such a threat against its civilian population is imminent. Israel has the right, under international law, to protect its civilians from a nuclear holocaust, and that right must include pre-emptive military action of the sort taken by Israel against the Iraqi nuclear reactor at Osirak in 1981 — which resulted in only one death.

Thousands of lives — Israeli, American and Kurd — were almost certainly spared by Israel’s pro-active strike. Imagine what danger American troops would have faced during the first Gulf War if the Iraqi military had developed nuclear weapons. Still, Israel was unanimously condemned by the United Nations Security Council, with the United States joining in the condemnation. Today, most reasonable people look to Israel’s surgical attack against the Osirak nuclear reactor as the paradigm of proportional pre-emption, despite the Security Council’s condemnation. (Many forget that Iran actually attacked the Iraqi reactor before Israel did, but failed to destroy it.)

National Security Advisor Condoleezza Rice recently said that history has vindicated the Israeli strike, but she declined to say whether the United States would support an Osirak-type attack by Israel against Iranian nuclear facilities. Although she declared earlier this month that the United States and its allies “cannot allow the Iranians to develop a nuclear weapon,” current international law — at least as defined by the U.N. — preclude a democracy threatened with nuclear annihilation from taking proportional, preventive military action to dissipate the threat to its civilians.

Under this benighted view, the United States would not be able to take proactive steps against terrorist groups that threaten our civilians. We would have to wait until the terrorists attacked us first, even if they were suicide bombers. This unrealistic perversion of international law must be changed quickly to take into account situations in which deterrence simply cannot be counted on to work. Democracies must be authorized to take pre-emptive military actions against grave threats to their survival or to their civilian population.

Current international law is woefully inadequate for the task of preventing the deployment of weapons of mass destruction. It requires that the threat be immediate, as it was when Israel pre-empted an imminent coordinated attack by Egypt and Syria in 1967.

But the threat posed by the future development of nuclear weapons does not fit this anachronistic criterion. It is the nature of the threat — the potential for mass casualties and an irreversible shift in the balance of power — that justifies the use of preventive self-defense with regard to the Iranian threat. International law must be amended to reflect this reality, but it is unlikely that any such changes will take place if it is seen as benefiting Israel.

Although military pre-emption has gotten a bad name among some following the attack on Iraq, it must remain an option in situations where deterrence is unrealistic and the threat is sufficiently serious.

If the Iranian nuclear facilities were located in one place, away from any civilian population center, it would be moral — and, under any reasonable regime of international law, legal — for Israel to destroy them. (Whether it would be tactically wise is another question.) But the ruthless Iranian militants have learned from the Iraqi experience and, according to recent intelligence reports, deliberately have spread its nuclear facilities around the country, including in heavily populated areas. This would force Israel into a terrible choice: Either allow Iran to complete its production of nuclear bombs aimed at the Jewish state’s civilian population centers, or destroy the facilities despite the inevitability of Iranian civilian casualties.

The laws of war prohibit the bombing of civilian population centers, even in retaliation against attacks on cities, but they permit the bombing of military targets, including nuclear facilities. By deliberately placing nuclear facilities in the midst of civilian population centers, the Iranian government has made the decision to expose its civilians to attacks, and it must assume all responsibility for any casualties caused by such attacks. Israel, the United States and other democracies always locate their military facilities away from population centers, precisely in order to minimize danger to their civilians. Iran does precisely the opposite, because its leaders realize that decent democracies — unlike indecent tyrannies — would hesitate to bomb a nuclear facility located in an urban center.

Israel, with the help of the United States, should try everything short of military action first: diplomacy, threats, bribery, sabotage, targeted killings of individuals essential to the Iranian nuclear program and other covert actions. But if all else fails, Israel, or the United States, must be allowed under international law to take out the Iranian nuclear threat before it is capable of the genocide for which it is being built.

Alan Dershowitz is the author of “America on Trial” (Warner Books) and “The Case for Israel” (John Wiley & Sons, 2003).

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