A law-based approach for Israel to prevent a nuclear-armed Iran

For Israel, this should be a time for disciplined strategic thinking, not political simplification. While well-intentioned, U.S. President Joe Biden’s counsel to “take the win” misses the single most important point of pertinent Israeli calculations. If Israel should sometime have to face a nuclear Iran, its rate of drone and ballistic missile interceptions would need to be 100 percent — not 99 percent.

Such an objective would be impossible to achieve.

There is much more to consider. Though Iran describes its indiscriminate attack on Israel as “retaliation,” it was, in law, an evident act of aggression. If Iran were an already-nuclear enemy state, Israel’s capacity for effective self-defense would be sorely limited. But because Iran is pre-nuclear, Iran’s aggression could still prove net-gainful for Israel. Ironically, this Iranian crime now offers Israel an 11th hour opportunity to prevent enemy nuclearization. In legal terms, this signals an indispensable opportunity for “anticipatory self-defense.”

Using both logical and historical criteria, the tangible human and material costs to Israel of any further escalations could be very high, but fighting against a not-yet-nuclear enemy that initiated the aggression would represent Israel’s best chance to avoid 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 plainly 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 oflaw 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 was an open admission of mens rea or criminal intent.

Even if Iran were not in a condition of self-declared 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 hostilities are actively underway, 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 authentic 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.

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?

In these matters, all relevant calculations must 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/Jihadistideology remains strongly determinative among Iranian decision-making elites.

Iran’s attack on Israel was anything but a lawful retaliation. Under all pertinent international law, it represents an overt act of aggression, but one that 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, defense against nuclear-armed missiles would have to meet much higher standards. They would have to be entirely “leak-proof.” This means an interception rate of 100 percent — not 99 percent. However inconspicuous, the Iranian attacks offer Israel a life-saving opportunity to avoid later preemptions against an already-nuclear enemy state.

“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 would 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 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 — to “take the win.” Calculating that war curtailment is necessarily the best available option would subject Israel to future instances of existential harm.

These prospects include full-scale nuclear war.

Louis René Beres, Ph.D., is Emeritus Professor of Political Science and International Law at Purdue University. He is the author of 12 major books dealing with international relations, military strategy and world affairs. Beres’ latest book is “Surviving Amid Chaos: Israel’s Nuclear Strategy” (2016; 2nd ed. 2018).