Prof. Louis René Beres
ABSTRACT: In response to former US President Donald J. Trump’s unilateral American withdrawal from the July 2015 Iran Pact (JCPOA), the Islamic Republic of Iran accelerated and reinvigorated its military nuclear program. More recently, nuclear talks between the two countries were re-started by President Joseph Biden, but are expected to be placed on hold until after Iran’s new hardline president, Ebrahem Raisi, is sworn into office. Also plausible is that negotiations could break down altogether and that a precipitating event, either foreseen or unforeseen, would spark an Iran-US nuclear crisis. Such a crisis could quickly involve Israel.
“Deterrence is concerned with influencing the choices that another party will make, and doing it by influencing his expectations of how we will behave.”-Thomas C. Schelling, The Strategy of Conflict (1960)
Background of the problem
For many years, Israel’s military and intelligence chiefs had hoped for an American strike against Iran; ideally, a comprehensive preemptive attack on Iran’s pertinent nuclear infrastructures Nonetheless, any plausible US-Iran nuclear crisis could have become more costly than gainful for Israel. Any such crisis could have caused Jerusalem to recall too late the succinct maxim: “Be careful what you wish for.”
Explanations are required. If US President Joseph Biden should ever become embroiled in a major security crisis with Iran, all immediately relevant policy issues would center on strategy and tactics, not on considerations of law. These inherently complex policy issues could quickly become overlapping and interpenetrating. At times, therefore, whether witting or unwitting, Washington’s operational crisis decisions could sometimes prove jurisprudentially determinative.
Depending upon which country was to strike first in any belligerent US-Iran context, American military actions could become either law-violating or law-enforcing. Similar legal questions would follow from the particular types of weapons used and from the expressed regard or disregard shown for non-combatant (civilian) populations.
“Everything is simple in war,” says Carl von Clausewitz in On War, “but even the simplest thing is very difficult.” None of these legal questions are meant to suggest that a first use of force would be ipso facto illegal. This is the case because customary international law (defined at Article 38 of the UN’s Statute of the International Court of Justice expressly allows for certain residual resort to “anticipatory self-defense.” Following The Caroline (1837), international law need never be taken to represent some form or other of “suicide pact.”
Intersecting jurisprudential and strategic considerations
There is more. International law is always a part of each individual state’s corpus of domestic or municipal law, an authoritative incorporation most immediately conspicuous for the United States at Article 6 of the US Constitution (the Supremacy Clause) and in various US Supreme Court decisions, especially the Paquete Habana (1900) and Tel Oren v. Libyan Arab Republic (1981).
Certain antecedent questions now also arise. What, precisely, does US President Joseph Biden have in mind in preparing suitably for a prospective nuclear crisis or armed conflict with Iran? What would this presumptive American expectation mean for the derivative safety of US ally Israel? What related benefits, if any, might be expected from the Trump-brokered Abraham Accords? And what are the precise definitional parameters of “nuclear crisis”?
This last question has an easy but still-complicating answer. Any US crisis with Iran must be considered per se “nuclear,” even if it takes place before that country becomes an operationally capable atomic power. Still, any crisis with Iran would become more demonstrably and dramatically nuclear where both states were “Members of the Nuclear Club.” This is the case even though a substantial and protracted nuclear force asymmetry would clearly obtain between Washington and Tehran.
Once a genuine conflict was plainly underway between Iran and the United States, full-scale military engagements could quickly or incrementally involve Israeli armed forces (IDF). In certain manifestly worst case scenarios, these clashes would involve unconventional weapons, and directly impact Israel’s vulnerable civilian populations. The most fearful narratives here would obviously be ones that involve nuclear ordnance.
In anticipation, capable strategic and jurisprudential thinking is required in both Washington and Jerusalem. Even during a potentially fleeting time in which Israel would remain the only regional nuclear power, an American war with Iran could elicit Israeli nuclear deterrence threats and/or Israeli nuclear reprisals. For Israel, such threats or reprisals could be entirely rational and fully legal.
How might such dissembling circumstances emerge? As a “bolt-from-the-blue” spasm of violence, or in less blatant stages; that is, in variously difficult-to- fathom increments of harm? Most credibly, a “collateral war” would come to Israel as a catastrophic fait accompli, a multi-pronged belligerency wherein even the most comprehensive security preparations in Jerusalem/Tel-Aviv would quite suddenly prove inadequate. What then? What would likely happen next, operationally and legally?
The only meaningful answer to such inherently problematic queries must include aptly candid affirmations of strategic unpredictability. In science and mathematics, accurate statements of probability must always be drawn from the discernible frequency of relevant past events. In those increasingly dense strategic matters currently dangling before America, Iran and Israel, there are no relevant past events.
Matters here are made even more bewildering by already ongoing non-nuclear problems in the Middle East. Most urgent of these problems is the increasingly dramatic shortage of water and the growing uncertainty of electrical power. Though military strategists might not ordinarily factor in such “non-military” difficulties as primary to nuclear war avoidance, national security decision-making is ultimately carried out by flesh and blood human beings. Prima facie, such kindred creatures of biology will always be affected by the most elementary primal needs and expectations.
Strategically, there is more here to ponder. For the moment, at least, Joe Biden has identified no specific military doctrine for tangible application in this theatre. Once confronted with a “no doctrine” war launched against Iran by an American president, whether as defensive first-strike or as retaliation (both could conceivably be lawful), Israel’s senior strategists would need to fashion their own corresponding doctrines – more-or-less ex nihilo.
How exactly should Jerusalem/Tel Aviv accurately anticipate Iranian or Iranian-surrogate attacks on Israeli targets? As an antecedent question, how should these decision-makers and planners best identify which of these vulnerable targets would be presumptively “high value”? At some point, such an Intelligence Community/Ministry of Defense (MOD) operational challenge could include the small defending country’s Dimona nuclear reactor. In 1991 and 2014, the ultrasensitive facility at Dimona already came under rocket and missile attack from separate Iraqi and Hamas aggressions.
In any upcoming conflict with the United States, Tehran would likely regard direct attacks upon selected Israeli targets as proper “retaliations” for American strikes. This is the case whether these strikes were launched as an initial move of war against the Islamic Republic and its surrogates or a variously foreseeable response to Iranian first strikes. Potentially, Iranian forces could gain operational access to hypersonic rockets or missiles. Should such access be obtained, Israel’s critical capacity to shoot down hypersonic glide vehicles (HGVs) and/or hypersonic cruise missiles (HCMs) might prove sorely inadequate.
What would happen next? In logical response, considerations of law and justice would likely prove anterior to visceral considerations of victory and survival. Among other things, could mean military escalations that are anything but gainful or “cost-effective.”
When pertinent options are examined dialectically, as they should, it could be to Tehran’s perceived advantage to drag Israel into any US or Iran-initiated war and to do this ostentatiously. Striking the US homeland would prove vastly more difficult for Iran, and also more likely elicit a range of intolerable reprisals. On its face, any US-initiated war against Iran would strengthen Saudi military power specifically and Sunni Arab military power in general. While such an expected strengthening might now seem less worrisome to Israel than expanding Iranian militarization, this delicate strategic calculus could reverse very quickly.
Israeli planners would need to investigate a number of previously disregarded military options against specific Sunni Arab adversaries, including legal questions of jus ad bellum and jus in bello.Simultaneously, these planners would need to calculate prospective Iranian activation of Hezbollah and Houthi militias against not only Israel directly, but also Saudi Arabia and/or the United Arab Emirates. Regarding direct Shiite militia attacks against Israel, the main threat would be to Israeli shipping in the Red Sea. At this point, the Houthis maintain a real but still-limited capacity to target Israel from Yemen with long-range missiles and drones. Earlier, Iran played a major role in enabling Gaza terror factions (mostly Hamas) to produce usable weapons; today, the Islamic Republic is exporting valuable technological know-how to expanding Houthi forces in Yemen.
A complex geopolitics
Iran is seeking to become a regional hegemon in a manifestly “opaque” theater of conflict. Over time, both the United States and Israel must do what is possible to curb further Iranian activation of Houthi and Hezbollah militias. Assuredly, once Iran is able to cross the nuclear military threshold, all such inhibiting tactics would become expansively dangerous. Unless the United States approaches these fragmenting sources of Middle East instability in a more suitably coherent fashion, Israel is likely to be left “holding the bag.” Now, of course, in the summer of 2021, American forces are rapidly abandoning Afghanistan to assorted and diverse Jihadi forces. A geo-strategic vacuum will emerge to the palpable detriment of Israel.
It’s a very delicate regional balance of power. For years, a Salafi/Deobandi (Sunni) Crescent has emerged to challenge the Shiite Crescent. The objective is an attempt by Al Qaeda and other Salafi/Deobandi Islamist groups to counter the Crescent created by Iraq, Syria and Lebanon.
Unambiguously, Iraq, Syria and Lebanon are in a state of near-collapse – a result especially of severe water and electrical shortages coupled with pandemic disease. “Salafi Crescent” reflects Sunni ambition to establish a caliphate controlling much of the Middle East and forming the Islamic State “from Diyala (in eastern Iraq) to Beirut.” Al-Qaeda’s hatred of the Shiites was already expressed by its founder Abu Musab al-Zarqawi, who called them “the insurmountable obstacle, the prowling serpent…the enemy lying in wait, and ordered his followers to ’fight them.’”
Should the Biden-led US military ever find itself in a two-front or multi-front war – a complex conflict wherein American forces are battling in Asia (North Korea) and the Middle East simultaneously – Israel could find itself fighting on its own. For such an exceptionally complicating scenario to be suitably appreciated, Israeli strategists would first need to bear in mind that any “whole” of tangible deteriorations caused by multi-front engagements could effectively exceed the sum of constituent “parts.”
This means, among other things, that Israeli strategists and planners will need to remain persistently sensitive to all credible synergies. It must go without saying that the former Trump administration (ushered into power at the 2016 Republican National Convention by Keynote “Speaker” Duck Dynasty) was unaccustomed to any such challenging intellectual calculations. For those now-discarded planners in Washington, complex strategic decisions could best be extrapolated from the commerce-driven worlds of real-estate manipulation and casino gambling.
If only the United States had earlier paid attention to Friedrich Nietzsche’s simple warning in Zarathustra: “Do not seek the Higher Man at the marketplace.”
Presently, there is still time for Washington and Jerusalem to recall certain timeless insights of Prussian strategist Carl von Clausewitz. For the author of On War, the determining standard of reasonableness in any military contest must always lie in presumed political outcomes. For a state to get caught up in war – any war – without adequately clear political expectations is always a mistake. Here, both Washington and Jerusalem must concern themselves not only with Iranian power projections and expansions, but also with the perilously uncertain prospects of the “Sunni Crescent,” an array of more-or-less organized Sunni forces intending to combat Shiite adventurism. If this were not complicated enough, planners in Washington and Jerusalem/Tel Aviv must also consider various believable intersections or synergies, consideration’s that will inevitably pose a staggering measure of intellectual challenge.
Recent regional histories
For more years than we may care to recollect, futile American wars remained underway in Iraq and Afghanistan. In short time, for Iraqis and Afghans, their once-hoped-for oases of regional stability will regress to what seventeenth-century English philosopher Thomas Hobbes would have called a “war of all against all.” At best, what eventually unravels in these severely fractured countries will be no worse than if these wars had never even been fought. At worst, what unravels will be substantially more unstable.
Either way, what is now unraveling in Iraq and Afghan will never represent a welcome political outcome.
Shouldn’t we all now inquire, accordingly: Did Americans and others sacrifice so much blood and treasure to bring about, at best, status quo ante bellum?
Over the years, with the now obvious exception of North Korea, America’s principal doctrinal enemy has changed, dramatically, from “communism” to “Islamism” or “Jihadism.” This time, however, the ideological adversary is palpable, real and not merely presumptive. This time it is also a formidable and finely-textured foe, one that requires continuously serious analytic study, not just ad hoc responses or seat-of-the-pants US presidential eruptions. There are times, perhaps, when real or contrived bellicosity can serve American national security policy objectives (e.g., the possible deterrence benefit of pretended irrationality) and objectives of certain close allies (e.g., Israel), but not where it is detached from previously-constructed theoretical foundations.
There is more. The Jihadist enemy of America and Israel remains a foe that can never be fully defeated, at least not in any measurable final sense. This determined enemy will not be immobilized on any of the more usual or traditional military battlefields. Never.
If at some point a particular Jihadi adversary has seemingly been vanquished by US military forces in one country or another, it will likely re-group and reappear elsewhere. After Iraq, after Afghanistan, even after Syria (which now dissembles with Russian support of a genocidal regime that has always been hostile to Israel), America will face resurgent adversaries in hard-to-manage and geographically far-flung places. These locales include Sudan, Mali, Nigeria, Yemen, Somalia, Egypt, and perhaps even Bangladesh or (in the future) “Palestine.” In the end, the “final” resolution to various conflicts will largely be a matter of will.
During the Trump Era in the Middle East, an American president and his National Security Advisor sounded alarm bells over Iran – and this after the United States, not Iran, withdrew from an international legal agreement that was less than perfect, but (reasonably) better than nothing at all.
Preemption and anticipatory self-defense
When all these intersecting factors are taken into suitable intellectual account, there remains a residual argument (one that might quickly be anticipated in Israel) that a US-generated war with Iran would de facto amount to an anti-nuclear preemption or to some similarly purposeful act of “anticipatory self-defense.” Here, and with little reasonable doubt, the American war would be regarded as “cost-effective” or “net gainful” in Jerusalem/Tel Aviv. This visceral assessment, however, could become a matter of what Sigmund Freud called “wish fulfillment” rather than of one of any serious strategic assessment (risks and benefits).
Realistically, there is only a tiny likelihood that American bombs and missiles would soon be adequately targeted on widely multiplied/hardened/dispersed Iranian nuclear infrastructures.
In reality, at least for the present, any US war against Iran would be contrary to Israel’s core national security interests and obligations. Glib reassurances to the contrary from Jerusalem/Tel Aviv or Washington (or both) could be prospectively lethal for Israel. Though assuredly genuine, the attack threat from Iran should never be taken as an opening for crudely simplifying political rhetoric. Instead, this threat should be assessed and calibrated dialectically, as reliably as possible according to all normally verifiable standards of enemy force posture estimations.
If, at any point during crisis bargaining between Iran, Hezbollah, Israel and the United States, one side or the other should place too great a value on achieving “escalation dominance” and too little value on parallel considerations of national safety, the expanding conflict could promptly turn “out of control.” Any such consequential deterioration would be especially or even uniquely worrisome if Israel threatened or launched some of its presumptive nuclear forces. This is the case irrespective of any promised strategic support for Israel from the United States.
The importance of doctrine
In sum, if Israel should look again to the United States for seamlessly capable geo-strategic leadership, it could be taking unprecedented national security risks. At a minimum, Israel has the incontestable right (and also the obligation – to its own citizens) to expect fully decipherable expressions of US military doctrine. Going forward, unless it should insist more firmly upon maintaining this critical right, Israel could then have to face starkly injurious security outcomes. The considered prospect of a fully-sovereign Palestinian state would need to be taken here as a significant “intervening variable.”
Every state’s first responsibility is to assure and maintain citizen protection; citizen allegiance is therefore contingent upon such valid assurances. Most famous in pertinent political theory is the classic statement of seventeenth-century Englishman Thomas Hobbes, expressed at Chapter XXI of his Leviathan: “The obligation of subjects to the sovereign is understood to last so long, and no longer, then the power lasteth, by which he is able to protect them.” Later, Thomas Jefferson, third president of the United States, described this obligation as binding upon all the nations. Writing his Opinion on the French Treaties (April 28, 1793), Jefferson opined: “The nation itself, bound necessarily to whatever it’s preservation and safety require, cannot enter into engagements contrary to its indispensable obligations.”
There is more. In law, every state has an enduring obligation to oppose and (if necessary) suitably punish aggression. Punishment of aggression is a longstanding peremptory expectation of international criminal law. The foundational principle of Nullum crimen sine poena, “No crime without a punishment,” has its origins in the Code of Hammurabi (c. 1728 – 1686 B.C.E.); the Laws of Eshnunna (c. 2000 B.C.E.); the even earlier Code of Ur-Nammu (c. 2100 B.C.E.) and the law of exact retaliation, or Lex Talionis, which ispresented in three separate passages of the Jewish Torah.
For Israel, a uniformly continuous concern with certain basic jurisprudential principles could advance its legal as well as strategic objectives, most plainly those that jurist William Blackstone had identified in his Commentaries on the Law of England (Book 4 “Of Public Wrongs”): “Each state is expected, perpetually,” noted Blackstone, “to aid and enforce the law of nations, as part of the common law, by inflicting an adequate punishment upon the offenses against that universal law.”
Such ideas did not arise in a theoretic or intellectual vacuum. Ultimately, Blackstone is indebted to Cicero’s description of natural law in The Republic: “True law is right reason, harmonious with nature, diffused among all, constant, eternal; a law which calls to duty by its commands and restrains from evil by its prohibitions….” Natural law is never an adornment. Always, it lies at the very heart of United States Constitutional law and of all that conceivably derives therefrom.
Just wars and cumulative complexities
As for “just wars” pertaining to both jus ad bellum and jus in bello criteria, Hugo Grotius wrote that they “arise from our love of the innocent.” Though it is most unlikely that such legal high-mindedness could ever factor into US President Joe Biden’s possible decision to encourage or initiate a war against Iran, it still remains a promising standard for Israel to bear continuously in mind. This will prove especially good advice if American military actions against Iran should sometime prod the Islamic Republic to “retaliate” against Israel.
More than ever before, the Middle East has become a complicated “neighborhood.” To wit, overlapping Arab-Israel and Iran-Israel hostilities are rapidly changing variants of Sunni-Shia rivalries, including an irremediably core geo-political struggle between “Shia Crescent” and Sunni-Crescent (Salafi/Deobandi) countries. While Israel and the United States continue to have overriding common strategic interests, it remains altogether likely that certain upcoming resorts to military force by Washington could “tie the hands” of relevant policy-makers in Jerusalem. Whether witting or unwitting, any such American “tying” could sometime place Israel in existential peril, This would become markedly true as soon as Iran had crossed the nuclear weapons threshold.
What is to be done? Above all, the United States must take care to keep Israel “in the loop” wherever possible and Israel must make a reciprocal effort to stay fully informed about America’s regional foreign policy orientations. In this connection, greater subtlety will have to be applied by Israeli assessments than was displayed during the Trump Era. As a still-inconspicuous example, the net effect of the Trump-brokered Abraham Accords could prove sorely negative for Israel. Though these agreements might first have seemed gainful to Israel prima facie, they actually have no tangible bearing on Israel’s core security problems. Simultaneously, the Abraham Accords antagonize and marginalize Iran, a destabilizing effect that can’t possibly prove helpful to Israel.
Going forward, the United States will inevitably find itself embroiled in various crisis relationships with Iran. To best protect itself from any unwanted collateral consequences, US ally Israel should continue to refine its intellect-based policies of deterrence, both conventional and nuclear. More precisely, to optimize its presumed nuclear deterrent, Jerusalem/Tel Aviv should finally confront the rapidly disappearing advantages of “nuclear ambiguity,” thereby acknowledging that the Jewish state is now able to calibrate a nuclear response to any particular level of military threat. Prima facie, such an acknowledgment would serve not only Israel’s strategic obligations, but its complementary jurisprudential ones as well.
For Israel, in all pertinent matters, strategy and law must go hand in hand. Yet, even under optimal conditions regarding stable nuclear deterrence, the United States could suddenly find itself in extremis atomicum. The very same steps needed to maximize a credible American deterrence posture could simultaneously enlarge the likelihood of inadvertent nuclear war. For Israel and the United States, one core imperative ought never be minimized or disregarded:
“Be careful what you wish for!”
Louis René Beres was educated at Princeton (Ph.D., 1971), and is Emeritus Professor of International Law at Purdue. His twelfth book, Surviving Amid Chaos: Israel’s Nuclear Strategy, was published in 2016. His other writings have been published in Harvard National Security Journal; Yale Global Online; World Politics (Princeton); Bulletin of the Atomic Scientists; Israel Defense; Parameters: Journal of the US Army War College; Special Warfare; Oxford University Press; The Jerusalem Post; Infinity Journal; BESA Perspectives; US News & World Report; The Hill; and The Atlantic.
His Terrorism and Global Security: The Nuclear Threat (Westview, first edition, 1979) was one of the first scholarly books to deal specifically with nuclear
This article was first published in Modern Diplomacy