Preemption, Israeli style

Last month, one of the more mysterious episodes in the history of the Arab-Israel conflict began to leak slowly into the news. Although the facts are still unconfirmed, what seems to have happened has major implications not only for the region but even more for the laws of war and preemption that President Bush has been trying to redefine ever since his 2002 national security strategy paper.

First, Syrian spokesmen complained that Israeli planes had violated their country’s airspace on Sept. 6 -- and had been driven off, or so they said. Within a few days came stories -- mostly from anonymous sources -- that the planes had fired into Syria; these were followed by still other stories that a target had in fact been hit. But what was it?

After further journalistic digging, the most plausible accounts said that the Syrian targets were related to nuclear weapons activity and may even have been manned by North Koreans. Later reports suggest some dispute within the U.S. government about how far Syria had progressed in achieving its nuclear ambitions, but these same reports confirm that this is what Israel was targeting.

The obscurity of this episode results in part from uncharacteristically tight lips in Jerusalem and Damascus. But that is not the whole of the reason. There has also been a deafening silence from the international community and especially from the other states of the region. This highly unusual reaction is one of the oddest parts of the whole episode and, in some ways, the most meaningful.

Ordinarily, the Arab states in the region are quick to condemn any warlike act by Israel, even measures as defensive as building a barrier against terrorists. Although many Arab states are unhappy these days with Syria’s budding alliance with Iran, Israel is still, to one degree or another, the enemy, and Syria is, at worst, a wayward brother. So why were the Arab states suddenly mum about this invasion of Syria’s sovereignty?

Their reticence -- and that of the rest of the international community, including the United States and Western Europe -- suggests, I think, that even though most governments believed that this was indeed a blow against Syrian nuclear ambitions, none of them, frankly, were displeased to see it happen. The fact is that virtually every government in the world, regardless of its feelings about Israel, recognizes that a Syrian nuclear weapons program would make the Middle East and the world more dangerous. True, Israel already has such weapons, to the dismay of many others, especially its neighbors. But few see a Syrian nuclear arsenal as an antidote.

Syria has a history of belligerence. Apart from initiating war against Israel in 1948 and 1973, and helping provoke it in 1967, it has also occupied Lebanon, and it threatened to invade Jordan during “Black September” of 1970 until deterred by U.S. and Israeli counteraction. It also helps arm Hezbollah and succors other violent groups.

Even a more sympathetic interpretation of Syria’s past actions would not diminish the terrifying prospect of a nuclear rivalry in the region. Just this summer, rumblings of a possible war had military leaders on edge in Damascus and Jerusalem. Replay that scenario with both sides armed with nuclear weapons, and it becomes far scarier still.

Between these two small, contiguous states, there would be little room for a “second strike” doctrine of the kind that deterred war between the superpowers for five decades. In a crisis, each side’s strategists would have to weigh carefully the advantages of striking first and wonder whether the other was thinking the same thing.

In addition, a Syrian nuclear program would stimulate wider proliferation. The prospect of an Iranian bomb has stirred new interest in nuclear programs in Egypt, Saudi Arabia, Turkey and other nearby states. Were Syria to head in the same direction, the impetus to avoid being left behind would be intense.

What does all this have to do with Bush’s preemption doctrine? Although the president’s stand evoked more criticism than support, part of it was hard to gainsay. The right of self-defense has always been understood to include the possibility of preemptive self-defense. Hugo Grotius, the 17th century Dutch philosopher who laid the foundations for international law, wrote that “it be lawful to kill him who is preparing to kill,” although he also acknowledged that this principle could be dangerous.

Bush’s claim was that whereas “preparing to kill” once entailed mobilizing armies that could be spotted by the potential victim, today’s technology makes possible a devastating blow without any visible prelude. Hence, he argued, preemption had to be understood more broadly. In non-legalese, he put it: “We will not allow the world’s most dangerous regimes to threaten us with the world’s most dangerous weapons.”

Critics argued that Bush was advocating not preemption but “preventive war.” They said that using force to deny another state the capability to attack you was far different from using force to thwart an imminent attack. They asked what would be the limits of such a right, and to this Bush had no ready answer.

On the other hand, the critics had no answer to Bush’s point that modern technology created a new danger of a devastating surprise attack against which states would reasonably want some defense. The U.N.’s High-Level Panel on Threats, Challenges and Change acknowledged the force of the argument that “the potential harm from some threats (e.g., terrorists armed with a nuclear weapon) is so great that one simply cannot risk waiting until they become imminent.” However, it said that in such cases, the party feeling threatened should bring its concern before the Security Council.

But given the United Nations’ bias against Israel, it is hard to counsel Jerusalem to trust the Security Council. Indeed, given the council’s historic impotence, few states would be likely to rely on it if they believed their safety was at stake.

The dilemma of preemption that first troubled Grotius has grown more acute with time. Israel was condemned by the Security Council in 1981 for bombing Osirik to abort Iraq’s nuclear program, but when Saddam Hussein launched wars against Iran and Kuwait, many governments were pleased in retrospect that Israeli had pulled some of his fangs.

This latest episode suggests that an intense rethinking is underway in many capitals. Take away the nuclear issue and imagine a report that Israeli warplanes had flown over Syria, unprovoked, and had bombed ordinary military targets. The Arab states would have been up in arms, seconded by the other Muslim and “nonaligned” states and even Europe. The United States in all likelihood would have chastised Israel more gently and would probably have abstained, rather than vetoing a Security Council condemnation of Israel.

But instead, Israel received only pro forma rebukes -- apparently because it had blocked a weapon that no one wanted Damascus to have.

Law is largely a matter of practice and custom, and it is gradually changing to accommodate new realms of self-defense. Had American forces found nuclear weapons in Iraq, or a nuclear program nearly ready to produce weapons, the international assessment of our decision to invade would be very different today. That we made an appalling mistake about Iraqi WMD shows the risks of the new doctrine that Bush proposes -- but it does not diminish the issue that gave rise to that doctrine.

The evolution of our thinking about these issues will be at the forefront of the debate as Washington moves closer to a preemptive (or “preventive”) strike against Iran’s nuclear program.

Joshua Muravchik is a resident scholar at the American Enterprise Institute.