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Preemptive Strikes—Israel and Iran

Published online by Cambridge University Press:  20 July 2015

Tamar Meisels
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Extract

This essay looks at the contemporary just war theory literature on preventive war that has emerged largely in reaction to the US invasion of Iraq. Recent sanctions on Iran and the debate over its nuclear program now suggest the usefulness of a forward looking perspective on preventive strikes, rather than the retroactive analyses offered thus far primarily with reference to Iraq. With Iran closely in mind, I address the various arguments for and against preventive war indicating throughout that the various principled objections to early military action can be overcome in this case. Many of the crucial concrete questions regarding costs and benefits need to be settled in practice, rather than in the realm of political theory. Ultimately, the discussion suggests that Iran is a legitimate candidate for early military action aimed to prevent it from developing nuclear weapons. I argue that in principle, subject to credible intelligence information and requirements of proportionality, a unilateral Israeli strike against Iran will be justifiable, both morally and legally, as self-defense.

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Canadian Journal of Law & Jurisprudence , Volume 25 , Issue 2 , July 2012 , pp. 447 - 463
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Copyright © Canadian Journal of Law and Jurisprudence 2012

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References

I am grateful to Yitzhak Benbaji, Eyal Benvenisti, Richard Bronaugh, Cecile Fabre, Chaim Gans, Michael Gross, Robert Johnson, Judith Lichtenberg, David Luban, David Miller, Dana Mills, David Rodin, Guy Sela, Daniel Statman, Jeremy Waldron, and Ruvi Ziegler, for helpful discussions of these issues and for many useful comments.

1. For example, Luban, David, “Preventive War” (2004) 32(3) Phil & Pub Affairs 207 Google Scholar. Buchanan, Allen & Keohane, Robert O, “The Preventive Use of Force: A Cosmopolitan Institutional Proposal” (2004) 18(1) Ethics & Int’l Affairs 1 [“The Preventative Use of Force”]CrossRefGoogle Scholar. Buchanan, Allen, “Institutionalizing the Just War” (2006) 34(1) Phil & Pub Affairs 2 CrossRefGoogle Scholar. Shue, Henry & Rodin, David, eds, Preemption: Military Action and Moral Justification (Oxford: Oxford University Press, 2007)CrossRefGoogle Scholar. Fletcher, George P & Ohlin, Jens David, Defending Humanity: When Force is Justified and Why (Oxford: Oxford University Press, 2008) 155.Google Scholar McMahan, Jeff, “Preventive War and the Killing of the Innocent” in Sorabji, Richard & Rodin, David, eds, The Ethics of War: Shared problems in Different Traditions (Aldershot, UK: Ashgate, 2006) 169.Google Scholar Kaufman, Whitley, “What’s Wrong with Preventive War? The Moral and Legal Basis for the Preventive Use of Force” (2005) 19(3) Ethics & Int’l Affairs 23 CrossRefGoogle Scholar. And (just before the invasion of Iraq) Byers, Michael, “Preemptive Self-Defense: Hegemony, Equality and Strategies of Legal Change” (2003) 11(2) J Pol Phil 171 CrossRefGoogle Scholar [“Preemptive Self-Defense”] (primarily on US “exceptionalism”).

2. Most notably, Walzer, Michael, Just and Unjust Wars: A Moral Argument with Historical Illustration (New York: Basic Books, 1977) at 74–85 Google Scholar. For a prominent (pre-Iraq) account of anticipation in international relations, see Schweller, Randall L, “Domestic Structure and Preventive War: Are Democracies more Pacific?” (1992) 44(2) World Politics 235 CrossRefGoogle Scholar.

3. See the discussion in Shue & Rodin, Preemption, supra note 1 at 2-6. On terminology, see also Kaufman, supra note 1 at 23, n 1. For this distinction between prevention and preemption, see Walzer, Just and Unjust Wars, supra note 2 at 75; Buchanan, “Justifying Preventive War” in Preemption, supra note 1 at 126; David Rodin, “The Problem with Prevention” in Preemption, supra note 1 at 144; Luban, “Preventive War”, supra note 1 at 213; David Luban, “Preventive War and Human Rights” in Preemption, supra note 1 at 171. Neta Crawford, “The False Promise of Preventive War” in Preemption, supra note 1 at 105-06. Walter Sinnot-Armstrong, “Preventive War: What is it Good For?” in Preemption, supra note 1 at 215. Kaufman, supra note 1 at 37. Fletcher & Ohlin, Defending Humanity, supra note 1 at 161-62. McMahan, “Preventive War and the Killing of the Innocent”, supra note 1 at 170.

4. See “United Nations Charter: Chapter VII: Action with respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression” (Accessed: 2 February 2012) online: United Nations, http://www.un.org/en/documents/charter/chapter7.shtml.

5. Fletcher & Ohlin, Defending Humanity, supra note 1 at 158.

6. McMahan, “Preventive War and the Killing of the Innocent”, supra note 1 at 183.

7. Sinnot-Armstrong, supra note 3 at 216.

8. Kaufman, supra note 1 at 29, 31, cites Vattel, Grotius, Pufendorf, Vitoria and Gentili. Walzer, Just and Unjust Wars, supra note 2 at 76-77 and Luban, “Preventive War”, supra note 1 at 219, cite Bacon, Vattel and Burke. See also Rodin, “The Problem with Prevention”, supra note 3 at 149, and Buchanan, “Institutionalizing the Just War”, supra note 1 at 6. Fletcher & Ohlin, Defending Humanity, supra note 1 at 156, 174, cite Kant. Crawford, supra note 3 at 116-17, cites Gentili and Bacon, as well as pointing to the prevalence of preventive war in ancient Greece and Rome.

9. Walzer, Just and Unjust Wars, supra note 2 at 77; Luban, “Preventive War”, supra note 1 at 219, 220, 223. McMahan, “Preventive War and the Killing of the Innocent”, supra note 1 at 171. Rodin, “The Problem with Prevention”, supra note 3 at 150. Buchanan, “Institutionalizing the Just War”, supra note 1 at 6.

10. Walzer, Just and Unjust Wars, supra note 2 at 76-80; Luban, “PW and HR”, supra note 3 at 172; McMahan, “Preventive War and the Killing of the Innocent”, supra note 1 at 175; Rodin, “The Problem with Prevention”, supra note 3 at 150, who cites Luban on this point, as does Buchanan, “Institutionalizing the Just War”, supra note 1 at 7.

11. Rodin, “The Problem with Prevention”, supra note 3 at 145-49.

12. Luban, “PW and HR”, supra note 3 at 172; Luban, supra note 1 at 228. McMahan, “Preventive War and the Killing of the Innocent”, supra note 1 at 175; Posner, Eric A & Sykes, Alan O, “Optimal War and Jus Ad Bellum” (April 2004) U Chicago Law & Economics Olin Working Paper No 211; U of Chicago, Public Law Working Paper No 63, online: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=546104 at 8, 22, 27Google Scholar.

13. Luban, “Preventive War”, supra note 1 at 209-10, 224-25. Rodin, “The Problem with Prevention”, supra note 3 at 150-55.

14. Luban, “Preventive War”, supra note 1 at 227-28; Luban, “PW and HR”, supra note 3 at 172. Crawford, supra note 3 at 120-24. Henry Shue, “What Would a Justified Preventive Military Attack Look like?” in Preemption, supra note 1 at 232-33. Fletcher & Ohlin, Defending Humanity, supra note 1 at 157.

15. Buchanan, “Justifying Preventive War”, supra note 3 at 128-31. Sinnot-Armstrong describes this in terms of the distinction between act Consequentialism and rule Consequentialism, attributing the latter to Luban. He argues that specific cases of prevention are justifable on act-utilitarian grounds, which he (Sinnot-Armstrong) endorses. Even with rule utilitarianism, however, the rules need not be absolute, as their ultimate justification is greater utility. Sinnot-Armstrong, supra note 3 at 202-21.

16. Buchanan, “Justifying Preventive War”, supra note 3 at 131-35. See also Luban’s response to Buchanan’s arguments in “PW and HR”, supra note 3 at 199-201.

17. Shue, “What Would a Justified Preventive Military Attack Look Like?”, supra note 14 at 230-32; Luban, “Preventive War”, supra note 1 at 233-34; Luban, “PW and HR”, supra note 3 at 190.

18. Rodin, “The Problem with Prevention”, supra note 3 at 146-48.

19. Luban, “Preventive War”, supra note 1 at 228-30.

20. Ibid at 230-32; Luban, “PW and HR”, supra note 3 at 172, 189-90.

21. Rodin, “The Problem with Prevention”, supra note 3 at 164-65. McMahan, “Preventive War and the Killing of the Innocent”, supra note 1 at 175.

22. McMahan, ibid at 179-85. See also Kaufman, supra note 3 at 31.

23. McMahan, “Preventive War and the Killing of the Innocent”, supra note 1 at 179-85.

24. Luban, “PW and HR”, supra note 3 at 191. Cf McMahan, “Preventive War and the Killing of the Innocent”, supra note 1 at 182-85.

25. Luban, “PW and HR”, supra note 3 at 191-92, 195.

26. McMahan, Jeff, Killing in War (Oxford: Oxford University Press, 2009), ch 1-4CrossRefGoogle Scholar, throughout, e.g., at 38. McMahan, Jeff, “The Ethics of Killing in War” (2004) 114(4) Ethics 693 at 718-22CrossRefGoogle Scholar. Rodin, David, War and Self-Defense (Oxford: Oxford University Press, 2002) at 70–102 CrossRefGoogle Scholar.

27. McMahan, “Preventive War and the Killing of the Innocent”, supra note 1 at 185-88. See also Rodin, “The Problem with Prevention”, supra note 3 at 164-66.

28. Ibid at 169.

29. See Buchanan, “Justifying Preventive War”, supra note 3 at 138-39.

30. McMahan, “The Ethics of Killing in War”, supra note 26 at 702-08, 722-25; McMahan, Jeff, “Just Cause for War” (2005) 19 (1) Ethics & Int’l Affairs 1 at 10CrossRefGoogle Scholar. McMahan, Killing in War, supra note 26 at 182-88.

31. This is the central argument in Kaufman, supra note 1, especially at 23, 31, 32-38.

32. Fletcher & Ohlin, Defending Humanity, supra note 1 at 156, 158; Luban, “Preventive War”, supra note 1 at 212-14. Both regard it as entirely uncontroversial that customary international law recognizes preemptive self-defense in the face of imminent danger as covered by Article 51. This is occasionally disputed, see Rodin, “The Problem with Prevention”, supra note 3 at 144; Byers, “Preemptive Self-Defense”, supra note 1 at 172.

33. Fletcher & Ohlin, Defending Humanity, supra note 1 at 90, 155. Fletcher, George, Basic Concepts of Criminal Law (Oxford: Oxford University Press, 1998) at 133–34 Google Scholar: “A preemptive strike against a feared aggressor is illegal force used too soon; and retaliation against a successful aggressor is illegal force used too late.”

34. Fletcher & Ohlin, Defending Humanity, supra note 1 at 156.

35. Walzer, Just and Unjust Wars, supra note 2 at 74. The Caroline incident (1837) involved a preemptive attack by the British forces in Canada on a civilian US steamboat (on American territory) that was used to smuggle and sell arms to Canadian rebels. The incident gave rise to an exchange of letters between Webster and British Special Minister Lord Ashburton, leading up to the Webster-Ashburton Treaty (1842). The quote is from a letter dated July 27th 1842 in which Webster states that it was for the British Government to justify the incursion of its forces by showing “a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation.” See (among many other accounts) Grey, Christine, International Law and the Use of Force, 3d ed (Oxford: Oxford University Press, 2008) at 148–49 Google Scholar. Rodin, War and Self-Defense, supra note 26 at 111-14. Dinstein, Yoram, War, Aggression and Self Defense (Cambridge: Grotius Publications, 1988) at 243–44 Google Scholar. Crawford, supra note 3 at 118-19.

36. Walzer, Just and Unjust Wars, supra note 2 at 81.

37. McMahan, “Preventive War and the Killing of the Innocent”, supra note 1 at 172-74. Buchanan, “Justifying Preventive War”, supra note 3 at 126-28. Buchanan & Keohane, “The Preventative Use of Force”, supra note 1 at 4. Sinnot-Armstrong, supra note 3 at 215-17, where he argues that the temporal imminence of the attack is significant primarily as an epistemic indication of the probability of its occurrence. For discussion and partial rejection of this argument on the grounds that it does not always apply, see Kaufman, supra note 1 at 29.

38. Buchanan, “Justifying Preventive War”, supra note 3 at 126.

39. Rodin, War and Self-Defense, supra note 26 at 41. Rodin, “The Problem with Prevention”, supra note 3 at 161.

40. Ibid at 162-64.

41. Ibid at 163.

42. Ibid at 161-66.

43. For the debate between Rodin and Luban on the conspiracy analogy, see ibid at 166-70, and Luban, “PW and HR”, supra note 3 at 192-96.

44. Rodin, “The Problem with Prevention”, supra note 3 at 163, cites The National Security Strategy of the United States of America (September 2002), online: The White House— George W Bush http://georgewbushwhitehouse.archives.gov/nsc/nss/2002/. See Yoo, John “Using Force” (2004) 71 University of Chicago Law Review, online: Social Science Research Network http://papers.ssrn.com/sol3/papers.cfm?abstract_id=530022 Google ScholarPubMed.

45. Walzer, Just and Unjust Wars, supra note 2 at 75, Luban, “PW and HR”, supra note 3 at 173; and the hypothetical examples, in McMahan, “Preventive War and the Killing of the Innocent”, supra note 1 at 180-85. On the other hand, Crawford, supra note 3 at 119, insists that an attack is only imminent if it “can be made manifest within hours or weeks.”

46. See Luban, “PW and HR”, supra note 3 at 173; Shue, “What Would a Justified Preventive Military Attack Look Like?”, supra note 14 at 228.

47. Fletcher & Ohlin, Defending Humanity, supra note 1 at 163.

48. Walzer, Just and Unjust Wars, supra note 2 at 80.

49. See Rice, Susan B, “Ambassador Rice at UN Security Council on Iran, Resolution 1737” (10 December 2010), online: America.gov Archive http://www.america.gov/st/texttrans-eng-lish/2010/December/20101210123546su0.3019482.html Google Scholar.

50. Luban, “Preventive War”, supra note 1 at 230-31, 233; Luban, “PW and HR War”, supra note 3 at 171.

51. Roosevelt, Franklin Delano, First Inaugural Address (4 March 1933), online: Bartleby.com http://www.bartleby.com/124/pres49.html Google Scholar: “declaring war” on the great de Pression. See also Jeremy Waldron’s discussion of the impact of “fear itself” on terrorized societies, with the example of the US economy after 9/11, in Waldron, Jeremy, “Safety and Security” in Torture, Terror and Trade-Offs: Philosophy for the White House (Oxford: Oxford University Press, 2010) 111 at 154Google Scholar.

52. Walzer, Just and Unjust Wars, supra note 2 at 81 [emphasis in original].

53. Ibid.

54. Ibid at 269-83.

55. Posner & Sykes, supra note 12 at 9.

56. Ibid at 16.

57. Ibid at 9.

58. Luban, PW at 234.

59. Ibid at 190.

60. Ibid.

61. McMahan, “Preventive War and the Killing of the Innocent”, supra note 1 at 173: “expected harm” = “the magnitude of harm times the probability”. Jeremy Waldron, “Security and Liberty: The Image of Balance” in Waldron, Torture, Terror and Trade-Offs, supra note 51 at 24: “R = magnitude of harm times the probability of its occurrence”.

62. On “urgent necessity” as a condition for justified preemptive action, see Shue, “What Would a Justified Preventive Military Attack Look Like?”, supra note 14 at 227-30.

63. Luban, “PW and HR”, supra note 3 at 190.

64. Hurka, Thomas, “Proportionality in the Morality of War” (2005) 33(1) Phil & Pub Affairs 34 at 37Google Scholar. On “last resort” see also Walzer, Just and Unjust Wars, supra note 2 at 84 (in connection with preemption), 213.

65. Walzer, Michael, Arguing About War (New Haven, London: Yale University Press, 2004) at 88.Google Scholar

66. Hurka, “Proportionality and the Morality of War”, supra note 64 at 37. “Last-resort” does not imply surrender. Needless to say, it was not incumbent on Great Britain to make a separate peace with Nazi Germany before resorting to war as a last option. Nor would it have been wrong to resort to war earlier than it did.

67. Hurka, Thomas, “Proportionality and Necessity” in May, Larry, ed, War: Essays in Political Philosophy (Cambridge: Cambridge University Press, 2008) 127 at 127CrossRefGoogle Scholar [emphasis in original].

68. Walzer, Just and Unjust Wars, supra note 2 at 80.

69. Ibid at 81.

70. For some of this controversy over Ahmadinejad’s statements about Israel, see for example Borger, Julian & Booth, Robert, “Britain walks out of conference as Ahmadinejad calls Israel ‘racist’” (20 April 2009) online: The Guardian http://www.guardian.co.uk/world/2009/apr/20/un-conference-boycott-ahmadinejad Google Scholar; Bronner, Ethan, “Just How Far Did They Go, Those Words Against Israel?” (11 June 2006) online: The New York Times http://www.nytimes. com/2006/06/11/weekinreview/11bronner.html/ Google Scholar.

71. Walzer, Just and Unjust Wars, supra note 2 at 81.

72. In this connection, I highly recommend Berman, Paul, Terror and Liberalism (New York, London: Norton, 2003), at 121-53Google Scholar. Especially at 123-28, for Berman’s description of the French anti-war socialists in the 1930’s.

73. For example, see again The National Security Strategy of the United States of America (September 2002), supra note 44; John Yoo, supra note 44. See also the description of “The Bush Doctrine” in Kaufman, supra note 1 at 23.