Opinion: Israel has a legal case for striking Iran

In a world where nuclear weapons could soon be in the hands of a rogue nation like Iran, an Israeli preemptive strike on Iran’s nuclear facilities would be fully justified. Despite its ban on aggressive war, Article 51 of the United Nations Charter clearly recognizes a state’s inherent right of self-defense. Thus, Israel has full authority to act unilaterally or collectively in its self-defense.

Yet Article 51 does not create the right to self-defense; it is an inherent right of all states under customary international law. Hence, determining when self-defense is appropriate lies, as it always has, with each state.

Under the charter, however, the U.N. Security Council is charged with lifting the burden of individual national self-defense and taking appropriate steps to restore international peace and security. One must recognize, however, that the muscular Security Council envisioned in the charter has never materialized. As such, threatened states are almost always required to make their own decisions and bear their own burdens.

Article 51 allows Israel to use aggressive force against Iran’s nuclear program if an “armed attack” occurs. Its plain language is satisfied when one state has used armed force to attack another state. Under customary international law, a preemptive strike is also permitted when an armed attack is imminent.

Thus an Israeli attack against Iran’s nuclear facilities would be legitimate for two reasons.

First, Iran already is conducting armed attacks under the plain meaning of Article 51 through Islamist terrorist surrogates Hezbollah, Palestinian Islamic Jihad and Hamas, so a de facto state of war exists between Israel and Iran.

Second, even if one questions whether armed attacks have occurred (by discounting Iran’s use of surrogates), Iran’s development of weapons of mass destruction constitutes an imminent, existential threat to Israel.

Under customary international law, the Article 51 “armed attack” requirement that evokes a right of self-defense can occur when a state perceives that such an attack is “immediately impending and inevitable.” Thus, rather than waiting for an actual attack, a state may execute a preemptive strike on the hostile state.

Historically, two elements must be met to legitimize a preemptive strike: proportionality and necessity.

The necessity element is where attention is usually focused. The acting state must have exhausted all other alternatives of dealing with the problem, and the threat from the hostile state must be imminent. As with most preemptive strikes, imminence related to necessity will be the most contested issue in deciding the strike’s legality.

The traditional definition for imminent is when there is “some outward act that initiates the attempt to harm such that the actual harm is close at hand.” Historically an attack was considered imminent when a state could see the mobilization of enemy armed forces preparing for attack. However, according to the modern trend in international legal thought regarding imminent, the threatened attack must be perceived as “instant, overwhelming, leaving no choice of means, and no moment for deliberation.” The hostile state must be about to launch an attack and not merely in the “preparatory stages of such an attack.”

Yet even the more “modern” definition has lagged the development of technology, particularly of WMDs and their rapid means of delivery. Under the historic definition, Israel likely would be required to wait until nuclear warheads were attached to missiles and about to be launched. But by then it would be too late. Failure to stop Iran before it reaches such a point invites disaster because of the potential destruction were such an attack to succeed.

The concept of imminence must be flexible over time, and the definition of “imminent attack” must be adaptable to modern warfare, since the traditional definition fails to account for the lethality and danger of WMDs.

If Israel deems that Iran is actively preparing for a nuclear attack against the State of Israel (an opinion amply supported by Iran’s continuous bellicose threats) and that failure to act would put Israel in grave danger of being unable to prevent that attack, the threat against Israel would in fact be imminent. As such, Israel would be justified in making a preemptive strike against Iran’s nuclear facilities, as long as the attack were proportional and Israel had exhausted all other meaningful alternatives.

While the general rule in international law is that a state may not initiate aggressive war toward another state, an Israeli attack on Iranian nuclear facilities would not qualify as aggressive war; it would simply reflect Israel’s inherent right to self-defense.

Jay Sekulow is chief counsel of the American Center for Law and Justice, based in Washington. Robert Ash is the group’s senior counsel.

The Ethics of War

When the U.S. House and Senate voted last week to pass resolutions authorizing the use of military force against Saddam Hussein’s regime in Iraq, the domestic political debate surrounding the war issue was brought to rest, at least for the time being. But for many people across the nation and around the world, Congress’ political decision merely fueled the heated ethical debate surrounding the legitimacy of waging such a war.

Even among Jewish ethicists and rabbinic authorities, there are significant differences of opinion regarding the moral efficacy of waging war against Iraq. And while few of these ethicists may look to the nation’s political leadership for moral guidance, almost all of them acknowledge that the moral debate about this war ultimately comes down to the same issues as does the political debate: Does the Iraqi regime represent a clear and present danger to the United States?

"The motivation for the war is the critical issue," said Rabbi David Wolpe of Sinai Temple in Los Angeles. "If it’s self-defense, then the standard is the same: You have a right to defend yourself. From what I understand, I think the war against Iraq is well-justified from a Jewish point of view, but I make this judgment based on my political knowledge."

Political knowledge is critical to the process of determining whether a war is morally legitimate.

"It’s a question of pragmatism," said Rabbi Elazar Muskin of Young Israel of Century City. "You can’t remove pragmatic issues from the ethical decision-making. Pragmatics will define your ethics at times. You don’t just talk ethically in a vacuum. You have to know the issues on the ground."

Halacha (Jewish law) is quite clear when it comes to matters of life and death. If a person faces a deadly threat from a given assailant, called a rodeph (pursuer), then that person is required to take whatever steps necessary to preserve his or her own life, including killing the assailant. Self-defensive killing in such cases is a moral obligation, and one need not wait until a knife-wielding assailant strikes the first blow before killing in self-defense.

The debate about a war against Iraq begins with the question of whether the Iraqi regime constitutes a deadly threat to others, and whether a preemptive strike against the regime constitutes an act of self-defense. Even those who answer both those questions in the affirmative must contend with the dilemma of whether waging war against the Iraqi regime is the most pragmatic way to eliminate that threat, and what ethical limitations exist in prosecuting such a war.

"You have a lot of questions that are not so easy to answer," Muskin said. "I think Saddam Hussein qualifies as a pursuer. But if we do this preemptive strike, will it be beneficial to the world? Will it cause more trouble for Israel than not attacking?"

"I think it’s more a pragmatic question than an ethical question at this junction," he said. "How do you handle Saddam Hussein?"

For rabbinic authorities like Muskin, the ethical debate about U.S. action against Iraq mirrors the political debate in Congress.

Rabbi Harold Schulweis of Valley Beth Shalom in Encino said that in assessing the morality of making war, "history, itself, is part of what we have to consult." Jewish history, in particular, teaches that evil must be resisted, he said.

"The Holocaust, itself, while it has not been codified into a law, has taught us a terribly important wisdom," Schulweis said. "I cannot look at Saddam without looking at what happened to our people in the late 1930s."

Rabbi Mordecai Finley, president of the Academy for Jewish Religion’s California campus and senior rabbi at Ohr HaTorah Congregation, takes his lessons from U.S. history.

"Let’s say the U.S. had discovered the Japanese fleet heading for Pearl Harbor at 7:30 a.m. on Dec. 7, 1941," he said. "There’s a threshold where ‘preemptive’ and ‘preventive’ become empty terms."

"No country is morally obligated to wait until his enemy has the upper hand," Finley continued. "Waiting for that magic moment could be imprudent, and it may even be immoral, if the job of the government is to protect its citizens. The risk, of course, is getting there and finding out that there was no intent to attack."

Some rabbinic authorities, like Rabbi Bradley Shavit Artson, dean of University of Judaism’s Ziegler School of Rabbinic Studies, are not convinced that Saddam intends to attack the United States.

"I don’t think anybody is arguing that Saddam today is a clear and present danger to the U.S. domestically," Artson said. "There isn’t a clear black-and-white case; it’s a judgment call. The case has not yet been adequately presented."

The author of "Love Peace and Pursue Peace: A Jewish Response to War and Nuclear Annihilation" (United Synagogue Book Service, 1988), Artson argued that more evidence needs to be brought to bear to determine that an attack against Iraq indeed would constitute an act of self-defense, and therefore qualify the war as a milhemet mitzvah, a permissible war of defense.

"We’re all in the sticky business of trying to determine if this war is close enough to a defensive war," he said. "Bring that evidence before Congress and the American people. I think that case still needs to be made."

Rabbi J. David Bleich, the Tenzer professor of Jewish law and ethics at New York’s Yeshiva University, agreed. "I can’t make decisions in a vacuum. I need some facts," he said.

"The administration has been very parsimonious in that respect," Bleich said. "I have no idea if Saddam is a credible threat. I don’t know whether this is just a gigantic smokescreen, or whether Bush has solid information. He has asked the American Congress to sign on carte blanche. If I were a congressman, I certainly wouldn’t have."

Some Jewish authorities, like Bleich, argue that Jewish law cannot be applied at all to non-Jews. Therefore, there can be no discussion within the framework of Jewish law about the moral legitimacy of a war between two non-Jewish nations like the U.S. and Iraq.

The author of "Contemporary Halachic Problems" (Ktav Publishing House, 1995) a book that includes several chapters on war-related issues and laws for non-Jews, Bleich argued that Jewish law has little to say when it comes to the moral dilemmas of non-Jews.

"We haven’t established yeshivas for bnei noach [sons of Noah]," Bleich said, referring to gentiles. "Nobody ever wrote a Shulchan Arukh [code of Jewish law] for non-Jews. We don’t have a simple compendium, so you’re going to find a wider array of opinions."

For his part, Finley argued that waging war is an inherent right of all nations. "In the Jewish tradition, a sovereign has the right to wage war. That’s part of what nations do; they make war on each other," he said. "But we can still morally ask: Should they wage war in a given case?"

Nearly every issue having to do with a potential U.S.-initiated war against Iraq is fraught with ethical questions, and even if Jewish ethicists agreed unanimously on the need to wage war, the conduct of that war presents its own ethical quagmire. For example, while most Jewish ethicists agree that a war of defense waged by a non-Jewish nation is permissible, that does not mean that killing innocent civilians in the process of defending against an aggressor is acceptable.

"You cannot engage in self-defense if it involves taking the lives of innocent bystanders," said Yeshiva University’s Bleich. "There’s no concept of a just war in halacha."

Rabbi Yitzchok Adlerstein, professor of Jewish law and ethics at Loyola Law School, said, "Jewish law has more to say about how to conduct war than decision-making about how to commence hostilities."

Adlerstein said there are laws about mandatory suing for peace before commencing hostilities, about leaving egress for civilians to flee, about the treatment of prisoners of war and about avoiding mindless destruction in the midst of battle, to name just a few. Most of the laws pertaining to warfare, however, have to do with Jewish wars — those waged by Jews in their own defense or in defense of Israel, he said. In such cases, Adlerstein added, "the usual distinctions between civilians and combatants don’t apply."

In Jewish wars, Muskin said, a limited number of civilian casualties are acceptable, as when, for example, the Israeli Defense Forces inadvertently kill civilian bystanders in pursuit of Palestinian terrorists.

The preponderance of ethical questions posed by war necessitates constant moral and political decision-making. Politics and morals cannot be divorced from each other, as the ongoing debate in Israel regarding the moral efficacy of that country’s military operations makes evident.

"In an ideal world, you would have generals and ethicists sitting in the same room discussing these issues before going into battle," Muskin said.

Historically, the kings of Israel were required to consult with the Jewish supreme court, the Sanhedrin, before waging war. During the time of the Temple in Jerusalem, the Jews sought the answers to such moral dilemmas in the urim v’tumin (the magical breast-plate worn by the high priest). Today, answers to these moral questions are less clear.

"The ethics of war are a very complex dilemma," said Rabbi Avi Weiss, president of the Coalition for Jewish Concerns-Amcha and rabbi at the Hebrew Institute of Riverdale in New York. "I think for me in this debate, it’s critical to understand the other side.

"It’s often the case that the different sides in the debate begin to impugn each other’s motives," he said. "That’s where it gets really ugly and dangerous. It’s critical that people listen to each other. I think on most issues, if you cannot see that there’s room for debate, then there’s something wrong with your own position."

Young Man on Campus

Last week I worried in this space that our college students were ill-equipped to defend American Jewry’s pro-Israel position. I asked for a volunteer to explain what’s going on. Luckily, Donald Cohen-Cutler, a UC Davis freshman and an international relations major, stepped up to the plate.

I say "luckily" because events on campus are even worse than I had suspected. Of course, I remember the beginnings of the Jewish-Muslim rift on campus during the first intifada. But I don’t remember blatant insults to Jewish ritual and history. That’s what’s happening now (see story, page 10).

Holocaust Remembrance Day at both UC Berkeley and UC Davis was sabotaged by the anti-Israel rhetoric of the Students for Justice in Palestine; 75 were arrested at Berkeley. Prayers for the Jewish dead were interrupted with shouts and jeers equating the martyrs of the Shoah over 50 years ago to Palestinian bombers. At Davis, the Sacramento Bee reported that among 300 protesters were those who called Jews "Nazis" and referred to Israel as a "racist state."

"It infuriates me to hear these insults," Cohen-Cutler told me. "I couldn’t do nothing."

He could take action. In the hours before the Yom HaShoah protest, Cohen-Cutler gathered 65 students, including many non-Jews, for a candlelighting protest.

Their presence helped restore dignity to the Jewish calendar, whose commemoration of the Holocaust is intended to ensure against future racist wars.

"This is Holocaust Remembrance Day. Millions of people died because of the way they believed. Racist rhetoric from either side is what causes hate," Cohen-Cutler told the Bee.

Since the protest, he and his friend Jesse Friedman of Thousand Oaks have been organizing a new national campus group — Justice, Justice Shall You Pursue — that he characterizes as a "Jewish humanitarian group."

"I’m a liberal supporter of Israel," Cohen-Cutler told me. "But the largest majority of my fellow students are standing silent."

What does a liberal supporter of Israel believe?

Cohen-Cutler was born in 1983, and his politics are shaped by the regrettable shadow of Israel’s incursion into Lebanon and the indictment of then-Defense Minister Ariel Sharon. To the Hillel activist and Calabasas High School grad, liberal politics today must face the limitations of Ariel Sharon’s military policies, while insisting on Israel’s right to defend itself.

"My group looks at the whole picture. I’m with Israel, but I’m not with the occupation. There is no justice in suicide bombings. At the same time, Israel can’t succeed by stomping on Arab buildings."

Cohen-Cutler explained that Jewish liberal students today are caught in the middle. A popular organization, Students for Justice in Palestine, is blatant in its anti-Israel stance. It includes many Jews.

The opposition takes the form of Campus Republicans or local groups like Aggies for Israel, or, more vehemently, Students for Justice in Israel, which Cohen-Cutler characterizes as too one-sided. To him, neither the left nor right are acceptable.

"We have to stand up without becoming extremists," he told me. "Jews are told to pursue justice, not just for ourselves but for all humanity. We want to help people see that the Jewish community is not full of evil oppressors but with people who fight the evil oppression."

As for his fellow students, they need educating. Justice, Justice will organize rallies and protest bias in the media coverage.

"We need to let the world know that Israel is still under attack and needs to defend herself," he said. "This campus is not apathetic, it just doesn’t know where to go."

Here’s a young man with an answer.