http://www.forward.com/main/article.php?ref=dershowitz20040819155
Amend International Law To Allow Preemptive Strike on Iran
By ALAN DERSHOWITZ
August 20, 2004
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).
