When Is a Preemptive Strike Self-Defense?

Last Friday, I had planned for Shalzed to send a question related to personal sanctions against government officials as a means of protesting violations of human rights. But with the war against Iran starting, I decided to hold off on that for more peaceful times. Instead, today’s question is about the extent to which the right of self-defense extends to preemptive strikes.

With wishes for safety and soon peace,

Shlomo

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While the United Nations Charter explicitly states that member nations may not use force or even threaten to use force against one another, there is an exception. Article 51 says that, “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs.”

This means that should a country be attacked, it can defend itself immediately without having to wait for the Security Council to take action. And that’s common sense- no country is going to allow itself to be bombed or have its territory occupied while diplomats dither in New York.

This is the justification Israel used for its surprise attack on Iran. Israel’s UN Ambassador said this to the Security Council. And in supporting Israel a U.S. representative was quoted as saying, “Every sovereign nation has the right to defend itself and Israel is no exception.”

But there is one obvious issue that must be addressed. The UN Charter said there is a right of self-defense only ‘if an armed attack occurs’, and Iran had not actually attacked Israel. Israel merely anticipated that such an Iranian attack would occur in the future.

Israel makes the case that since Iran was working to develop a nuclear weapon, early preemption was needed. Israel had ample evidence that Iran was attempting to build nuclear weapons. And Iran’s decades of dehumanizing, anti- Israel rhetoric and bombastic threats ‘to wipe Israel off the map’ gave Israel good reason to believe that if Iran got the bomb, it would use it.

However, one might still stick with a strict reading of the UN Charter and say that self-defense can only be invoked as a response to actual aggression. The reason is that preemptive self-defense leads to a slippery slope that has no end. If country A is allowed to attack as soon as it believes an attack from country B is imminent, country B may feel compelled to preempt Country A’s anticipated preemptive strike. But since country A knows that country B may do so, it will have to launch its own strike even sooner. And so on until everyone has their finger on the trigger ready to attack everyone else at the slightest motion.

Others might say that despite this slippery slope, preemptive strikes before an attack has actually taken place are justified, but only if the enemy attack is truly about to happen. But what does ‘about to happen’ mean? The enemy army is on the way? The enemy has begun to mobilize? Or even that the enemy is probably about to build a bomb that it may then load onto missiles that it then might launch?

To be clear, Israel’s position is certainly understandable. Once Iran has an actual nuclear bomb, preemption might no longer be possible. So now could be the last and only chance. But if self-defense is extended all the way to a situation in which an enemy may be acquiring a weapon that it may use for an attack in the future, what use of force remains forbidden? Any country can point to potential future threats and cite them as a pretext for war.

There is no simple answer, and I certainly don’t mean to make a judgment about Israel. My own sense is that the immense threat posed by nuclear weapons, compounded by Iran’s threats and the global atmosphere of anti-Israel hate that makes it chillingly plausible Iran really would use nuclear weapons against Israel offensively, have to be taken into account. Please share your thoughts.