Sunday, February 26, 2012

Alan Dershowitz on International Law and Preemptive Strikes

In my discussion with Joshua, the question of what international law has to say regarding preemptive strikes has come up:   When, if ever, should they be allowed?  According to Alan Dershowitz , who wrote in 2004,  "Current international law is woefully inadequate for the task of preventing the deployment of weapons of mass destruction." But I'll quote him at length:

 "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.)

"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."

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