[iwar] [fc:Implications.of.a.Palestinian.state.for.Israeli.security.and.nuclear.war:.A.Jurisprudential.Assessment]

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Implications of a Palestinian state for Israeli security and nuclear war: A Jurisprudential Assessment

MAY 1999

Prepared especially for publication in: THE DICKINSON JOURNAL OF
INTERNATIONAL LAW

Louis Ren‚ Beres, Ph.D.
Professor
Department of Political Science
Purdue University
West Lafayette, IN 47907
USA
TEL 765/494-4189
FAX 765/494-0833
E MAIL <a href="mailto:BERES@POLSCI.PURDUE.EDU?Subject=Re:%20(ai)%20[Fwd:%20BERES:%20IMPLICATIONS%20OF%20A%20PALESTINIAN%20STATE]%2526In-Reply-To=%2526lt;3BBBC9E2.E54CC03E@speconsult.com">BERES@POLSCI.PURDUE.EDU</a>
IMPLICATIONS OF A PALESTINIAN STATE FOR ISRAELI SECURITY AND NUCLEAR WAR:
A JURISPRUDENTIAL ASSESSMENT
Louis Rene Beres

Prepared especially for publication in
THE DICKINSON JOURNAL OF INTERNATIONAL LAW
Normally, students of international law approach the question of a
Palestinian State from the standpoints of terrorism, self-
determination and human rights. Although such an approach is altogether
reasonable, it is also purposeful to examine the question of Palestinian
statehood from the perspectives of Israel's national security, nuclear
strategy, and regional nuclear war. With this in mind, the following article
undertakes this second form of examination, thereby adding an essential
jurisprudential component to a timely and urgent issue in world politics.
Whether or not a State of Palestine will come into existence in the
next several years is no longer problematic. When it does come into
being, Israel's nuclear strategy will surely be affected. And this
strategy, in turn, will affect the probability of nuclear war in the Middle
East. What, precisely, are the pertinent connections?
Interestingly, an ironic connection exists between Israel's posture
on Judea/Samaria vs. Palestine and its nuclear strategy, i.e., a "hawkish"
position on maintaining control over the remaining territories (the
position of Oslo opponents) is normally associated with a "dovish"
position on nuclear strategy (because, inter alia, Israel has substantially
greater strategic depth under extant conditions). Hence, an expected
victory for the Israeli Left (the position of Oslo supporters) on Palestine
(originally a declining population following Iraq's invasion of Kuwait
and the resultant Gulf War) would suggest an expanded reliance by
Israel on nuclear deterrence. We will, therefore, examine the precise forms
such an expanded reliance might take. But first let us consider why,
exactly, Palestine would represent new and significant danger to Israel.
The Regional Danger From Palestine
When - as a result of the Oslo Accords - West Bank and Gaza
(Judea/Samaria) become Palestine, Israel's vulnerability to armed attack by
Arab neighbors would increase markedly. Recognizing an "improved" balance
of forces vis-…-vis Israel, a larger number of Arab states would
calculate that they now confront a smaller, more beleaguered adversary--
one deprived of former strategic depth and one whose military forces are
more preoccupied with Palestine than they ever were with the intifada.
Fearing even total defeat--the End of the Third Temple Commonwealth -
-Israel could find itself resorting for the first time to threats of nuclear
deterrence and, should the threats not be taken seriously, the actual
retaliatory use of nuclear weapons.
Of course, one must compare the risks to Israel of a neighboring
state of Palestine with those of continuing control over the remaining
territories. Should Israel have maintained possession of these lands, a
combined attack by several Arab states could have benefited from the anti-
Israel exploits of a new intifada, exploits that might have escalated under
such conditions. Diverted from the central effort to resist Arab armies,
Israel--because of its still precarious rule over hostile Palestinian
populations -could have been be weakened considerably. Yet, its overall
position would have been weakened less by such rebellion than it will be
weakened by another hostile state on its eastern borders. Therefore,
Israel would have been less inclined to threaten or to use nuclear weapons
if Jerusalem had maintained jurisdiction over the territories.
A two-state solution to the Palestinian problem will not reduce
the incentive of present Arab governments to war against Israel.
Indeed, it may well increase this incentive, probably via an
attrition/annihilation strategy. This means that the critical factor
in determining probable Israeli recourse to nuclear deterrence and/or
nuclear weapons is the perceived effect of Palestine upon Israel's
vulnerability. Because this effect will almost certainly be greater than
that of even persistent and expanded uprising in the territories,
transforming the territories into an independent state will enlarge the
risk of nuclear war in the region.
Let me be more precise. When an independent Palestine is
declared, its president will be Yasir Arafat, and its principal leaders
will be drawn from the PLO chairman's faction, Al Fatah. Probably
within hours of the new state's effective beginnings, its government and
its ruling elite will be targeted by PLO radicals and by Palestinian parties
opposed to PLO. Among the radicals, some (e.g., Popular Front for the
Liberation of Palestine and Democratic Front for the Liberation of
Palestine) might represent Syrian interests and others (e.g., Arab
Liberation Front and Palestine Liberation Front) might front for Iraq.
Among the anti-PLO parties, most (e.g., Popular Front for the
Liberation of Palestine--General Command; Popular Struggle Front; the Abu
Musa organization and Saiqa) are tied intimately to Syria and one (Fatah
Revolutionary Council)--known popularly as the Abu Nidal group--is linked
to Libya. Samir Gosheh's Popular Struggle Front currently displays more
independence from Syria than Ahmed Jebril's Popular Front for the
Liberation of Palestine--General Command, and Saiqa is essentially an
integral Syrian force with only nominal Palestinian identity.
We see that many factions will contend for control over the new state
of Palestine and that virtually all of these factions will resort,
unhesitatingly, to high levels of violence. Before long, the resident
Palestinian population will suffer far more than it has under Israeli rule
and anarchy will pose a real threat to Jordan. Over time, it is likely that
Jordan will be undermined altogether and that Syria will gain control over
Palestine as a "peacemaker." Of course, Iraq, too, could gain a controlling
position in Palestine, but this would depend upon the power of its
Palestinian surrogates vis-…-vis those of the regime in Damascus.
Ironically, the result of these events--of another Lebanon--would be
enormously tragic for both Palestinians who seek a homeland and for
Israelis who seek secure frontiers.
It follows from all of this that Palestine could pose a serious
security risk to Israel, and that this risk may be far greater than that of
maintaining/regaining possession of Judea/Samaria. This does not mean that
Israel and the Palestinians should steer clear of meaningful negotiations
or that Israel should avoid concerning itself with protecting the essential
human rights of any non-citizen Arab populations under its control.
But it does mean that reasonable assessments of Israel's security compare
the expected costs of terminating Oslo with that of Palestinian
independence. In the absence of such a comparison, Israel could go from bad
to worse, from a situation that is debilitating and demoralizing to one that
is altogether intolerable.

The Dangers of Demilitarization
The hidden dangers of demilitarization are clear and compelling. The
threat of Palestine to Israel will lie not only in the presence or absence
of a national armed force, but also in the many other Arab armies and
terrorists that will inevitably compete for power in the new country.
But there is another reason why a "demilitarized" Palestine would
present Israel with a substantial security threat: International law would
not necessarily expect Palestinian compliance with pre-state agreements
concerning military deployments and armed force. From the standpoint of
international law, enforcing demilitarization upon an independent state of
Palestine would be exceedingly problematic. As a sovereign state,
Palestine might not even be bound by any pre-independence compacts that
were secured by U.S. guarantees. In this connection, international law
imposes unequal obligations on state and nonstate parties to agreements.
In a concurring statement in the case of Tel-Oren v. Libyan Arab Republic, a
1981 civil suit in U.S. federal courts (where plaintiffs were Israeli
survivors and representatives of persons murdered in a terrorist bus
attack in Israel in 1978), Circuit Judge Harry T. Edwards stated:
I do not believe the law of nations imposes the same
responsibility or liability on nonstate actors, such
as the PLO, as it does on states and persons acting
under color of state law.
Regarding the validity of Oslo under international law, this
statement reveals that the Palestinian Authority (PA) that is the nonstate
party to Oslo and Wye cannot be held jurisprudentially to the same
standards of accountability as the State of Israel. This is a most
important point to keep in mind when assessing the prospective viability of
plans fore Palestinian demilitarization.
Because treaties can be binding only upon states, an agreement
between a non-state Palestine Authority (PA) and one or more states
would be of no real authority and little real effectiveness.
Technically, an agreement on demilitarization under international law must
always be "between states." Hence, any agreement on demilitarization that
would include a nonstate party would be prima facie null and void.
But what if the government of Palestine were willing to consider
itself bound by the pre-state, non-treaty agreement, i.e., to treat this
agreement as if it were an authentic treaty? Even in these relatively
favorable circumstances, the new Arab government would have ample pretext
to identify various grounds for lawful treaty termination. It could, for
example, withdraw from the agreement because of what it regarded as a
"material breach" (an alleged violation by Israel that undermined the object
or purpose of the treaty). Or it could point toward what international law
calls a "fundamental change of circumstances" (rebus sic stantibus). In
this connection, should a small but expanding Palestine declare itself
vulnerable to previously unforseen dangers - perhaps from the forces of
other Arab armies - it could lawfully end its codified commitment to remain
demilitarized.
Rebus sic stantibus means, literally, "so long as conditions remain
the same." It is a legal doctrine with a long history. In the traditional
view, the obligation of a treaty terminates when a change occurs in those
circumstances that exist at the effective date of the agreement and whose
continuance forms a tacit condition of the ongoing validity of the treaty.
The function of the doctrine, therefore, is to execute the shared
intentions of the parties. Rebus sic stantibus becomes operative when
there is a change in the circumstances that formed the cause, motive or
rationale of consent.
There is another factor that explains why a treaty-like arrangement
obligating a new Palestinian state to accept demilitarization could quickly
and legally be invalidated after independence. The usual grounds that may
be invoked under domestic law to invalidate contracts also apply under
international law to treaties. This means that "Palestine" could point to
errors of fact or to duress as perfectly appropriate grounds for
termination.
Moreover, any treaty is void if, at the time it was entered into, it
was in conflict with a "peremptory" rule of general international law (jus
cogens) - a rule accepted and recognized by the international community of
states as one from which "no derogation is permitted." Because the
right of sovereign states to maintain military forces essential to "self
defense" is certainly such a rule, Palestine could (depending upon its
particular form of authority) be entirely within its right to abrogate any
treaty that had compelled its demilitarization.
A theory, following Hegelian ideas, is that any treaty obligation may
be terminated unilaterally following changes in conditions that make
performance of the treaty injurious to fundamental rights, especially the
rights of existence, self-preservation and independence. These rights
have been summarized in law as "rights of necessity."
Thomas Jefferson, who had read Epicurus, Cicero and Seneca, as well
as Voltaire, Montesquieu, Holbach, Helvetius and Beccaria (and who became
something of a philosophe himself) wrote as follows about obligation and
international law:
The Moral duties which exist between individual and
individual in a state of nature, accompany them into
a state of society and the aggregate of the duties
of all the individuals composing the society
constitutes the duties of that society towards any
other, so that between society and society the same
moral duties exist as did between the individuals
composing them while in an unassociated state, their
maker not having released them from those duties on
their forming themselves into a nation. Compacts
then between nation and nation are obligatory on
them by the same moral law which obliges individuals
to observe their compacts. There are
circumstances however which sometimes excuse the
non-performance of contracts between man and man;
so are there also between nation and nation. When
performance, for instance, becomes impossible, non-
performance is not immoral. So if performance
becomes self-destructive to the party, the law of
self-preservation overrules the laws of obligation
to others.
Later, Jefferson concludes:
As every treaty ought to be made by a sufficient
power, a treaty pernicious to the state is null, and
not at all obligatory; no governor of a nation
having power to engage things capable of destroying
the state, for the safety of which the empire is
trusted to him. The nation itself, bound necessarily
to whatever its preservation and safety require,
cannot enter into engagements contrary to its
indispensable obligations."
Here it must also be remembered that, historically, demilitarization
is a principle applied to various "zones," not to still-emergent states
in their entirety. For some examples of demilitarized zones, consider the
following: In 348 B.C., a treaty between Rome and Carthage included a
provision for the neutralization of Corsica, a neutral zone "in the middle"
(Corsica esset media inter Romanos et Carthaginienses.") The Treaty of
Radzin in 1681 between the Russian and Ottoman Empires created a vast
buffer zone between both parties south of Kiev. More modern forms of
demilitarization were developed in the nineteenth century from measures
that prohibited fortifications in designated areas, normally imposed by the
victor upon the vanquished.
After World War I, Germany, as a consequence of the Versailles
Treaty, had to demilitarize the Rhineland. Permanent demilitarized zones
have been created in the Straits of Magellan (by the border treaty of 1881
between Argentina and Chile); in the Aaland Islands belonging to Finland
(according to the Aaland Islands Convention of 1921 between Finland,
Sweden and other European powers); and in Norway's Svalbard Archipelago
and Bear Island (by terms of the Svalbard (Spitsbergen) Treaty of 1920
between Norway, the United States and the former Soviet Union. The Outer
Space Treaty of 27 January 1967 demilitarizes the moon and other celestial
bodies (prohibiting the stationing of nuclear weapons and other mass
destruction weapons) while Antarctica has been demilitarized by the
Antarctic Treaty of 1 December 1959.
 From these examples, we see that a new state of Palestine might have
yet another legal reason not to comply with pre-independence commitments
to demilitarization. As it could be alleged, inter alia, that these
commitments are inconsistent with traditional bases of authoritative
international law - bases found in treaties and conventions; international
custom; the general principles of law recognized by "civilized nations;"
etc. - they are commitments of no binding character.
Now, it is certainly possible (albeit unnecessary) that a state of
Palestine would act contrary to its legal commitments on demilitarization.
Here the demilitarization "remedy" could prove no less injurious to Israel.
One can easily imagine what would happen if - following a clear breach of
the Palestinian demilitarization commitment - Israel would be compelled to
act militarily. In such circumstances, the entire global community,
including the United States, would likely respond to imperative Israeli
self-defense/law enforcement actions with both private pressures and
public denunciations of Israel in the U.N. Security Council. The term "law
enforcement" applies here because of the persistently Westphalian
(decentralized) nature of international law and its derivation from
underlying natural law. According to Blackstone, the Law of Nations
(International Law) is deducible from natural law and is therefore binding
upon all individuals and states. Each state is expected "to aid and enforce
the law of nations, as part of the common law; by inflicting an adequate
punishment upon offenses against that universal law...."
Additionally, there would be a great deal of internal pressure within
Israel, with the Israeli Left claiming yet again that this or that
Palestinian violation is not a clear and present danger to Israel's
survival. If further evidence is needed of the plausibility of this
scenario, one need only recall that although Gaza and certain portions of
Judea/Samaria already under Palestinian control do not yet fall under
Palestinian sovereign authority, Israel has not had effective capacity
since Oslo to combat violence and terrorism from these areas.
It follows from all this that Israel should take little comfort from
the legal promise of Palestinian demilitarization, and that such a
promise would pose absolutely no problems for Yasir Arafat. Indeed, should
the government of the new Palestinian state choose to invite foreign
armies or terrorists on to its territory (possibly after the original
government authority had been displaced or overthrown by more militantly
Islamic anti-Israel forces), it could do so not only without practical
difficulties but also without necessarily violating international law.
Ironically, if the original PA/Fatah government of Palestine saw itself
threatened by aggression from outside Arab forces, demilitarization
could even produce a Palestinian invitation to Israel, an invitation to
protect Palestine from mutual enemies.
The prospect of such an invitation is not as strange as it seems. And
as acceptance would likely be seen to be in Israel's own best interests,
Jerusalem's requested military involvement in Palestine could surely
happen. Significantly, this involvement could bring Israel into a much wider
and potentially catastrophic war, into exactly the intolerably dangerous
kinds of conditions that a demilitarized Palestinian state was intended to
prevent in the first place. That such an outcome could be the result of an
Israeli attempt to stabilize a new and demilitarized Arab neighbor would add
yet another irony to tragedy, a tragedy based in part upon
misunderstanding of pertinent international law.
Of course, the overriding danger to Israel of Palestinian
demilitarization, more practical than jurisprudential, would stem from
Israel's self-inflicted abrogation of its own essential security role. In
the final analysis, this Oslo-driven abrogation derives from a profound and
possibly wilful misunderstanding of Palestinian goals and expectations.
While Israeli supporters of Oslo II continue to believe in a "Two State
Solution" and in an associated mutuality of interest in coexistence,
the PA has other beliefs. Significantly, these beliefs, which are
essentially genocidal with respect to Israel, are often stated openly
and unambiguously.
Here are some pertinent examples of statements by Palestinian
officials that are not only in obvious violation of the Oslo Accords, but
are also illustrative of sentiments which exclude mutuality of interest in
peace with Israel:
O our beautiful land imprisoned in a cage and
surounded by wolves, My shaded garden, the
tormentors have destroyed you, and the dogs have
settled in you, O Jerusalem, O my city, With my
notebook and pencil and the fire of my rifle I will
shatter the cage, I will kill the wolves and plant the
flag, The dogs will not bark in the heroic cities.
I now see the walls of Jerusalem, the mosques of
Jerusalem, the churches of Jerusalem. My brothers!
With blood and with spirit we will redeem you,
Palestine! Yes, with blood and with spirit we will
redeem you, Palestine!
Israel is attempting to obstruct peace. If Israel
continues to succeed in this approach, then she is
destroying the peace process. The only option
remaining for us will be an alternative option....war.
Allow me to say that it takes only one side to start
a war. At the end of the path on which Israel is
proceeding, a declaration of war awaits.
We shall always stand against them, threaten their
future, and not permit them to expand. We shall
stand with all our might against any attempted
settlement effort. If they do not implement the
agreement, we shall determine what the essential
locations are in each settlement, and we will turn
the lives of the settlers into hell.
All options are open for defending the land of the
Palestinian people.
The Zionist entity exists on seized land. The Jews
remain enemies because they expropriate lands,
build settlements and pay high sums to buy
properties. They are the greatest enemies of us
Muslims.
The struggle we are waging is an ideological
struggle and the question is: where has the Islamic
land of Palestine gone? Where is Haifa and Jaffa,
Lod and Ramle, Acre, Safed and Tiberias? Where is
Hebron and Jerusalem?
We did not pay with the dear blood of thousands of
martyrs so that the Israeli government could
establish settlements on our land in the name of
peace. We have sacrificed in the past and we will be
ready to sacrifice again in the future for the sake
of liberating our land and returning it to the bosom
of the Palestinian nation and for the sake of
establishing an independent Palestinian state whose
capital is Jerusalem.

In the strict Islamic view, the Jewish State is always the individual
Jew in macrocosm. This Jewish State must be despised because of this
relationship, because of the allegedly innate "evil" of the individual Jew.
This is a far cry from the view that Jews should be despised because they
are associated with the State of Israel. Exactly the opposite view
prevails. Hence, the Israeli must be despised not because he is an
"occupier" or because of his "expansionist" policies (these traits are seen
as merely epiphenomenal), but because he is a Jew. Period!
In an article published in al-Ahram, on September 27, 1982, Dr. Lufti
Abd al-Azim wrote: "The first thing that we have to make clear is that no
distinction must be made between the Jew and the Israeli, which they
themselves deny. The Jew is a Jew, through the millennia....in spurning all
moral values, devouring the living and drinking his blood for the sake of a
few coins. The Jew, the Merchant of Venice, does not differ from the killer
of Deir Yasin or the killer of the camps. They are equal examples of human
degradation. Let us therefore put aside such distinctions, and talk about
Jews."
In an Egyptian textbook of "Arab Islamic history," used in teacher
training colleges, we may discover the following: "The Jews are always the
same, every time and everywhere. They will not live save in darkness. They
contrive their evils clandestinely. They fight only when they are hidden,
because they are cowards....The Prophet enlightened us about the right way
to treat them, and succeeded finally in crushing the plots that they had
planned. We today must follow this way and purify Palestine from their
filth."
Ayatollah Khomeini, in the Foreword to his book on Islamic Government,
remarked: "The Islamic Movement was afflicted by the Jews from its very
beginnings, when they began their hostile activity by distorting the
reputation of Islam, and by defaming and maligning it. This has continued to
the present day." And again, on the "Zionist Problem" as a mere
manifestation of the underlying "Jewish Problem," Dr. Yahya al-Rakhawi
remarked on July 19, 1982, in al-Ahram: "...we are all - once again - face to
face with the Jewish Problem, not just the Zionist Problem; and we must
reassess all those studies which make a distinction between "the Jew" and
"the Israeli"....and we must redefine the meaning of the word "Jew," so that
we do not imagine that we are speaking of a divinely revealed religion or a
minority persecuted by mankind. Every word has an origin, a development
and a history, and it seems that the word "Jew" has changed its content and
meaning. We thus find ourselves face to face with the essence of a problem
which has recently donned the gown of relgion and concentrated itself on a
piece of land. In this confrontation, we cannot help but see before us the
figure of the great man Hitler, may God have mercy on him, who was the
wisest of those who confronted this problem....and who, out of compassion
for humanity, tried to exterminate every Jew, but despaired of curing this
cancerous growth on the body of mankind."
Conventional wisdom often maintains that PLO/PA opposes Hamas, and
that the two organizations are entirely separate and discrete. This
"wisdom," however, is contradicted by considerable available evidence.
According to the September 1995 PLO/Hamas Understanding, Hamas commits
itself to refrain from terrorism only in PLO/PA controlled areas. Arafat,
in turn, recognizes Hamas, Islamic Jihad, the PFLP and DFLP as legitimate,
reaffirming the predominance of inter-Palestinian solidarity over PLO/PA
Israel relations.
According to the Charter of Hamas: "Peace initiatives, the so-called
peaceful solutions, and the international conferences to resolve the
Palestinian problem, are all contrary to the beliefs of the Islamic
Resistance Movement. For renouncing any part of Palestine means
renouncing part of the religion; the nationalism of the Islamic Resistance
Movement is part of its faith, the movement educates its members to adhere
to its principles and to raise the banner of Allah over their homeland as
they fight their Jihad ....There is no solution to the Palestinian
problem except by Jihad ....In order to face the usurpation of Palestine by
the Jews, we have no escape from raising the banner of Jihad....We must
imprint on the minds of generations of Muslims that the Palestinian problem
is a religious one, to be dealt with on this premise...."I swear by that (sic)
who holds in His Hands the Soul of Muhammad! I indeed wish to go to war for
the sake of Allah! I will assault and kill! assault and kill, assault and
kill...."
Regarding relationships with the Palestine Liberation Organization
(PLO), the Hamas Charter instructs: "The PLO is among the closest to the
Hamas, for it constitutes a father, a brother, a relative, a friend. Can a
Muslim turn away from his father, his brother, his relative or his friend?
Our homeland is one, our calamity is one, our destiny is one and our enemy
is common to both of us...." Finally, on therimacy of hatred toward
Jews, not Israel, the Hamas Charter states as follows: "Israel, by virtue
of its being Jewish and of having a Jewish population, defies Islam and the
Muslims. `Let the eyes of the cowards not fall asleep.'"
Both Palestinian organizations are now preparing for war against
Israel, and war need not be exclusive of genocide under international law.
Rather, war may be the means whereby genocide is efficiently
operationalized. According to Articles II and III of the Genocide
Convention, which entered into force on January 12, 1951, genocide includes
any of several listed acts that are "committed with intent to destroy, in
whole or in part, a national, ethnical, racial or religious group as
such...." This means that where Israel is recognized as the
institutionalized expression of the Jewish People (an expression that
includes national, ethnical, racial and religious components), acts of war
intended to destroy the Jewish State could assuredly be genocidal. The
internet website of Yasir Arafat's Fatah Movement recently released a
constitution that calls openly for the "eradication" of Israel.
The Genocide Convention criminalizes not only the various stipulated
acts of genocide, but also (Article III) conspiracy to commit genocide and
direct and public incitement to commit genocide. Articles II, III and IV of
the Genocide Convention are fully applicable in all cases of direct and
public incitement to commit genocide. For the Convention to be invoked, it
is sufficient that any one of the State parties call for a meeting, through
the United Nations, of all the State parties (Article VIII). Although this
has never actually been done, the United States should consider very
seriously taking this step while there is still time. Israel, too, should be
an obvious co-participant in this call, but it is hardly likely that a
Government that does not even insist upon its basic rights under Oslo
will now seek redress under much broader multilateral conventions.
The Genocide Convention is not the only authoritative criminalization
that should be invoked against ongoing and illegal Palestinian calls for
mass murder of Jews. The 1965 International Convention on the Elimination
of All Forms of Racial Discrimination could also be brought productively
into play. This treaty condemns "all propaganda and all organizations which
attempt to justify or promote racial hatred and discrimination in any form,"
obliging - at Article 4(a) - State parties to declare as "an offense
punishable by law all dissemination of ideas based on racial superiority or
hatred, incitement to racial discrimination, as well as all acts of violence
or incitement to such acts against any race or group of persons." Article
4(b) affirms that State parties "Shall declare illegal and prohibit
organizations, and also organized and all other propaganda activities,
which promote and incite racial discrimination, and shall recognize
participation in such organizations or activities as an offense punishable
by law." Further authority for curtailing and punishing Yasir Arafat's and
other Palestinian calls for genocidal destruction of Jews can be
found at Article 20 (2) of the International Covenant on Civil and Political
Rights: "Any advocacy of national, racial or religious hatred that
constitutes incitement to discrimination, hostility or violence shall be
prohibited by law."
At its heart, the problem of Israel's survival now lies in the Jewish
State's basic assumptions concerning war, peace and genocide. While
Israel's regional enemies, including PLO/PA and Hamas, believe that any
power gains for Israel represent a power lossfor them - that is, that they
coexist with Israel in a condition of pure conflict - Israel assumes
something else. For Israel, relations with Arab/Islamic states and
organizations are not, as these enemies believe, zero-sum relations.
Rather, they are a mutual-dependence connection, a nonzero-sum relation
where conflict is mixed with cooperation. Israel, unlike its enemies,
believes that any gain for these enemies is not necessarily a loss for
itself. Indeed, since Oslo, Israel is unwilling even to identify its enemies
as enemies.
Israel believes that its enemies also reject zero-sum assumptions
about the strategy of conflict. Israel's enemies, however, do not make such
erroneous judgments about conformance with Israeli calculations. These
enemies know that Israel is wrong in its belief that Arab/Islamic states and
organizations also reject the zero-sum assumption, but they pretend
otherwise. There is, therefore, a dramatic and most serious disparity
between Israel and its multiple enemies. Israel's strategy of conflict is
founded upon miscalculations and false assumptions, and upon an
extraordinary unawareness of, or indifference to, enemy manipulations.
The pertinent strategic policies of Israel's enemies, on the other hand, are
grounded upon correct calculations and assumptions, and upon an astute
awareness of Israeli errors.
What does all of this mean, for the demilitarization "remedy" and for
Israeli security in general? Above all, it positively demands that Israel
make far-reaching changes in the manner in which it conceptualizes the
continuum of cooperation and conflict. Israel, ridding itself of wishful
thinking, of always hoping, hoping too much, should immediately recognize
the zero-sum calculations of its enemies, and should begin to recognize
itself that the struggle in the Middle East must still be fought
overwhelmingly at the conflict end of the continuum. The struggle, in other
words, must be fought, however reluctantly and painfully, in zero-sum
terms.
Israel should immediately acknowledge that its support for Oslo is
fully inconsistent with both the zero-sum calculations of its enemies and
with its own newly-recognized imperative to relate on the basis of zero-
sum assumptions. By continuing to sustain Oslo, Israel, in effect, rejects
correct zero-sum notions of Middle East conflict and accepts the starkly
incorrect idea that its enemies also reject these notions. By rejecting
Oslo, Israel would accept correct zero-sum notions of Middle East conflict
and accept the correct idea that its enemies base their policies upon
exactly these notions. By such rejection, Israel would also be acting in
support of international law.
Enemy commitments to zero-sum notions of conflict with Israel are
augmented by the Jewish State's overwhelming military liabilities. With
only a dozen air bases that can handle aircraft, and with Syria now
deploying hundreds of advanced SCUDs which could hit these bases and
Israeli mobilization centers early during war - Israel's capacity for self-
defense is seriously limited. Even Israel's vaunted armor corps has only
2210 tanks of high-quality. The IDF still maintains forty-year old
Centurions, antique M-48s and captured Russian T-62s.
A good summary of Israel's current overall military
condition/preparedness is offered by Morris J. Amitay:
Israel's "huge army" has been holding steady at
187,000, and it is still basically a citizens army
with 444,000 reserves. The number of divisions, 16,
has been the same since 1993. Meanwhile, Israel's
potential foes have not been sitting still - and
some - particularly Saudi Arabia and Egypt - are
increasingly getting more top of the line U.S.
equipment. The numbers help to tell the story.
Egypt counts 440,000 regular troops and 254,000
reserves, along with 3390 tanks and 505 aircraft to
Israel's 613 planes. Iraq numbers 382,000 regular,
650,000 reserves, 2700 tanks and 330 aircraft.
Iran's 750,000 troops are less important than its
long-range missiles which can hit Israel. Syria has
421,000 regulars, 500,000 reserves, 4600 tanks and
520 aircraft, and Saudi Arabia with 105,000
regulars, 57,000 reserves and 1055 tanks has 322
modern aircraft - including over 100 F-15s.
Besides the recently announced U.S. arms sales to
Egypt, openly-hostile Syria will soon be re-armed
with the latest Russian S-300 air defense system,
SU-27 fighter bombers and T-80 tanks, and it has
been amassing a large arsenal of ground to ground
missiles. Iraq has now been more than eight months
without even non-intrusive inspections. And no one
thinks that Saddam has been busy in the meantime
with public works and welfare projects. The Saudis,
thankfully, had to cut back on buying the latest
American weapons because of lower oil prices, but
they will soon be getting U.S. AMRAAM long-range air
to air missiles. Iran is devoting much of its
resources to acquiring long-range missiles and
nuclear weapons, not only with Russia's help - but
also with Chinese and North Korean aid. As for Iran
acquiring nuclear weapons, the CIA has been saying
5-10 years - but it seems they have been saying
this the last 5 - 10 years.
In confronting these military threats, Israel should also now remind
the world about the authentic history of "Palestine." It should remind the
world that a sovereign state of Palestine did not exist before 1967 or
1948; that a state of Palestine was not promised by authoritative U.N.
Security Council Resolution # 242; that, indeed, a state of Palestine had
never existed. As a nonstate legal entity, Palestine ceased to exist in
1948, when Great Britain relinquished its League of Nations mandate. When
during the 1948-49 War of Independence, Judea/Samaria and Gaza came
under the illegal control of Jordan and Egypt respectively, these
aggressor states did not put an end to an already-existing state.
 From the Biblical Period (ca. 1350 BCE to 586 BCE) to the British
Mandate (1918-1948), the land named by the Romans after the ancient
Philistines (a naming intended to punish and to demean the Jews) was
controlled exclusively by non-Palestinian elements. Significantly,
however, a continuous chain of Jewish possession of the land was legally
recognized after World War I at the San Remo Conference of April 1920.
There, a binding treaty was signed in which Great Britain was granted
mandatory authority over Palestine (the area had been ruled by the
Ottoman Turks since 1516) to prepare it to become the "national home for
the Jewish People." Palestine, according to the treaty, comprised lands
encompassing what are now the states of Jordan and Israel, including
Judea/Samaria and Gaza. Present day Israel, including Judea/Samaria and
Gaza, comprises only twenty-two percent of Palestine as defined and
ratified at the San Remo Peace Conference.
In 1922, Great Britain unilaterally and illegally split off 78 percent
of the lands promised to the Jews - all of Palestine east of the Jordan
River - and gave them to Abdullah, the non-Palestinian son of the Sharif of
Mecca. Eastern Palestine now took the name Transjordan, which it retained
until April 1949, when it was renamed as Jordan. From the first moment of
its creation, Transjordan was closed to all Jewish migration and
settlement, a clear betrayal of the British promise in the Balfour
Declaration of 1917 and a contravention of its Mandatory obligations.
On July 20, 1951, a Palestinian assassinated King Abdullah for his
hostility to Palestinian nationalist aspirations. Several years prior to
Abdullah's killing, in 1947, the newly-formed United Nations, rather than
designate the entire land west of the Jordan River as the Jewish National
Homeland, enacted a second partition. Ironically, because this second
fission again gave unfair advantage to the Arabs, Jewish leaders accepted
the painful judgment while the Arab states did not. On May 15, 1948, exactly
one day after the State of Israel came into existence, Azzam Pasha,
Secretary General of the Arab League, declared to the new tiny nation
founded upon ashes of the Holocaust: "This will be a war of extermination
and a momentous massacre...." This declaration, as we have just seen,
remains at the very heart of all Arab policies toward Israel.
In 1967, almost twenty years after Israel's entry into the community
of nations, the Jewish State - as a result of its stunning military victory
over Arab aggressor states - gained unintended control over
Judea/Samaria and Gaza. Although the idea of the inadmissibility of the
acquisition of territory by war is enshrined in the U.N. Charter, there
existed no authoritative sovereign to whom the territories could be
"returned." Israel could hardly have been expected to transfer these
territories back to Jordan and Egypt, which had exercised unauthorized and
cruel control since the Arab-initated war of extermination in 1948-1949.
Moreover, the idea of Palestinian "self-determination" was only just
beginning to emerge after the Six Day War, and was not even codified in U.N.
Security Council Resolution #242, which was adopted on November 22,
1967. For their part, the Arab states convened a summit in Khartoum,
in August 1967, which concluded with the cry: "No peace with Israel, no
recognition of Israel, no negotiations with it...."
We have come full circle. A Palestinian state is now being erected by
an authority that will ultimately brook no serious form of demilitarization
and that will reject altogether a two-state solution. The Palestinian
Authority is committed to a strategy founded upon unhindered control over
the instruments of violence. This means that if Israeli government leaders
prepare to accept the Oslo-driven Palestinian state because such a state
would presumably be demilitarized, they would be making an uninformed and
fatal mistake.
Although Security Council Resolution 242 links the establishment of
peace with Israeli withdrawal from the territories, no insistence on direct
negotiations among the hostile parties is mandated by the text. Resolution
242 does not require Israel to withdraw from each of the territories it
came to control in 1967--control stemming not from a war of aggression
(the sort of control deemed inadmissible in the preamble to 242)--but from
a legitimate war of self-defense. When, in 1979, Egypt made peace with
Israel, it received the whole of the Sinai in return, land constituting over
90 percent of the territory taken by Israel in 1967.
Resolution 242 has been generally misinterpreted. The formula
envisioned by the Resolution is one of "peace for land," not "land for
peace." The Resolution grants to every state in the Middle East "the right
to live in peace within secure and recognized boundaries." It point,
therefore, to peace before territorial withdrawal to "recognized
boundaries."
The 1978 Camp David Accords stipulated that negotiations on the
final status of the West Bank and Gaza Strip must address the "legitimate
rights" of its Arab inhabitants. But these legitimate rights do not include
the right to establish another Arab state--especially as that state would
likely be established upon the intended ruins of the State of Israel.
Security Council Resolution 242 is "a balanced whole," according to
Lord Caradon of Great Britain, its sponsor. "To add to it, or to detract
from it would destroy the balance....It must be considered as a whole and as
it stands." Considering the text, the "right of self-determination of the
Palestinians" does not appear in the Resolution; an international
conference is never mentioned; the parties referred to include only states;
and the phrase "territories occupied" is neither preceded by "the," nor is it
followed by "on all fronts." Finally, 242 specifically mentions withdrawal
only of Israel's armed forces, not its administrative apparatus or
sovereign control.
Israel's current (albeit unexercised) right to reject the idea of the
territories as "occupied" also stems from its incontrovertible right to
security. Because transformation of these lands into an Arab state of
Palestine would threaten the very existence of the Third Temple, Israel is
under no obligation to transfer West Bank and Gaza to another sovereign
authority, especially as the extant Arab states, together with Iran,
persistently call for "elimination" or "liquidation" of the "Zionist entity."
Palestine and Israel's Nuclear Strategy
Now, let us return to the question of Palestine and Israeli reliance
on nuclear deterrence. What are the forms such expanded reliance might
take? A number of possibilities come immediately to mind. First, it is likely
that Israel, feeling more threatened by its loss of buffer territory, would
feel increasingly compelled to bring its bomb out of the "basement."
Here, fearing that its expanded need for a credible deterrent were no
longer served by the nuclear posture of "deliberate ambiguity," Israel
would probably move to some form of explicit declaration of nuclear
capability. Such disclosure could be full or partial and could be carried
out with or without appropriate public demonstrations or tests.
Whether or not such a shift from ambiguity to disclosure would
actually enhance Israeli deterrence would depend upon several complex
factors, including the types of weapons involved, the reciprocal
calculations of Arab and Iranian leaders, the effects upon rational
decision-making processes by these Arab leaders and the effects upon both
Israeli and Arab command/control/communications operations. If, for
example, bringing the Israeli bomb out of the basement were to result in
Arab pre-delegations of launch authority and/or new launch-on-warning
procedures, the likelihood of unauthorized and/or accidental wars
(including in the future, nuclear wars) would be increased.
It is also clear that merely acknowledging what one's adversaries
have already believed need not necessarily enhance Israeli deterrence.
Even if Israel should move from its position of ambiguity to disclosure (full
or partial), Arab enemies of the Jewish state might still not believe the
nuclear threat. Or, perhaps even more ominously for Israel, disclosure
could prod Arab leaders to preempt in the near term, a decision that would
flow from their presumption that (1) war with Israel is inevitable; and (2)
Israel's vulnerability to aggression will only diminish.
The creation of Palestine from the territories could also affect
Israel's inclination to preempt. But how? One argument suggests that
because of Israel's diminished size, its inclination to strike first at enemy
hard targets would be especially high. After all, now deprived of strategic
depth, it could not hold out for as long as was possible when Palestine was
still the territories. In this connection, it is possible that a shift from
deliberate ambiguity to disclosure after Palestine came into existence
would reduce the Israeli incentive to preempt, but only if Jerusalem were
made to believe that its nuclear threat, as a result of this shift, were
being taken more seriously by the Arabs.
Here, several problems must be considered. First, how would Israel's
leadership actually know that taking the bomb out of the basement had
improved its deterrence posture? To a certain extent, the credibility of
Jerusalem's nuclear threats would be contingent upon the severity of
different provocations. For example, it might be believable if Israel were
to threaten nuclear reprisals for provocations that endanger the very
survival of the Jewish state, but it would almost certainly be unbelievable
to threaten such reprisals for relatively minor territorial infringements
or incursions.
In view of what is now generally believed about Israel throughout the
Middle East, and--indeed--all over the world, there is every reason to
assume that Israel's nuclear arsenal does exist, and that Israel's enemies
share this assumption. The most critical question about Israel's nuclear
deterrent, therefore, is not one of capability, but one of willingness. How
likely is it that Israel, after launching non-nuclear preemptive strikes
against enemy hard targets, would respond to Arab reprisals with
nuclear counterretaliation? This is perhaps the single most important
question to be raised in connection with the general issue examined here.
To answer this question, Israel's decision-makers will have to put
themselves into the shoes of various Arab leaders. Will these leaders
calculate that they can afford to retaliate against Israel, i.e., that such
retaliation would not produce nuclear counterretaliation? In asking this
question, they will assume, of course, a non-nuclear retaliation against
Israel. A nuclear retaliation, should it become technically possible, would
assuredly invite a nuclear counterretaliatory blow.
What will they conclude? This depends, in turn, upon their view of
Arab reciprocal judgments about Israel's pertinent leaders. Do these
judgments suggest a leadership that believes it can gain the upper-hand
with nuclear counterretaliation? Or do they suggest a leadership that
believes such counterretaliation would bring upon Israel intolerable levels
of harm and destruction? Depending upon the way in which the Arab
decision-makers interpret Israel's authoritative perceptions, they will
accept or reject the cost-effectiveness of a non-nuclear retaliation
against Israel. This means that it is in Israel's interest to communicate
the following strategic assumption to its enemies: that Israel would be
acting rationally by responding to Arab non-nuclear reprisals to
Israeli preemptive attacks with nuclear counterretaliation. The
plausibility of this assumption would be enhanced considerably if Arab
reprisals were to involve chemical and/or biological weapons.
All of these calculations, of course, assume rationality. In the
absence of calculations that compare the costs and benefits of strategic
alternatives, what will happen in the Middle East is only a matter of
conjecture. Significantly, the prospect of non-rational judgments in the
region is increasingly likely, especially as the influence of Islamic
fundamentalism spreads to Arab leadership elites. To the extent
that Israel might one day believe itself confronted with nonrational
enemies, particularly ones with highly destructive weapons in their
arsenals, its incentive to preempt would become overwhelming. In fact,
should such enemies be believed to hold nuclear weapons, Israel might even
decide (rationally) to launch a nuclear preemption against these weapons.
This would appear to be the only circumstance in which a rational Israeli
preemptive strike could be nuclear.
There are other problems. To function successfully, Israel's
deterrent, even after being removed from the "basement," would have to be
secure from Arab preemptive strikes. Moreover, Israel must also be wary
of "decapitation," of losing the "head" of its military command and control
system because of enemy first strikes. Should Israel's enemies be
unpersuaded by Jerusalem's move away from deliberate ambiguity they might
direct such strikes as could effectively immobilize Israel's order of battle.
The prospect of Israeli preemption will likely increase also because
rival states that acquire nuclear weapons will be unwilling or unable to
create the essential infrastructure to safely manage these weapons.
Inadequate investment in nuclear weapons systems survivability, for
example, could generate dangerous incentives to preempt. With Israel's
enemies unlikely to possess a second-strike capability--the capacity to
retaliate after absorbing an Israeli attack-- these states may calculate a
substantial military advantage to striking first. Recognizing this
calculation, Israel will confront an overwhelming incentive to strike first
itself. Even in the best case scenario, wherein Israel receives credible
assurances from its enemies concerning rejection of first-strike options,
Jerusalem will inevitably understand that such assurances could become
meaningless in the wake of political upheaval, coup d'etat, etc. Faced with
enemy states characterized by weak and authoritarian political
institutions, fragile civil-military relations, and competing factions
representing numerous ethnic and religious groupings, Jerusalem will no
doubt recognize the danger posed by alienated elements within enemy
societies--a danger for which Israel's only reasonable antidote is apt to
be preemption.
A contrary argument about the effects of Palestine on Israel's
inclination to preempt suggests that because of Israel's newly expanded
vulnerability its nuclear deterrent would be more credible than ever
before. As a result, Jerusalem could better afford not to strike first than
when it still administered the territories. In this situation the principal
benefit of shifting from ambiguity to disclosure would seem to lie in an
explicitly-identified escalation ladder revealing a broad array of intended
Israeli reprisals, ranging from limited conventional responses to measured
nuclear strikes. Such reprisals, of course, would be subject to the
codified and customary restraints of the laws of war, especially the
rules of proportionality.
In weighing the different arguments concerning the effect of
Palestine upon Israeli preemption, particular attention must be directed
toward Israel's presumptions about the inevitability of war and the long-
term expectations for Arab vulnerability. Should Israel's leaders conclude
that the creation of Palestine would make another major war inevitable and
that, over time, Arab vulnerability to Israel would diminish, Jerusalem's
inclination to strike first would be increased.
Are such presumptions reasonable? Regarding the inevitability of
war, current Arab rearmament efforts and associated preparations for
conflict certainly suggest little else. As for Arab vulnerability to
Israel's military forces, this will depend primarily on relative adaptation
to the changing technologies of war, a process that cannot be accurately
evaluated at this time. It follows that unless Israel's leadership believes
that shifting from ambiguity to disclosure would greatly inhibit all or
virtually all enemy Arab forces (i.e., to the extent that war would become
not inevitable, but decreasingly probable), Palestine would make Israeli
preemptive attacks more likely.
Does this mean that the creation of Palestine would make Israeli
nuclear deterrence irrelevant? Not at all! Although nuclear weapons might
not serve Israel as an assured means of deterring enemy first strikes,
they could function to support Israeli preemptions. Here, Israel's
adversaries--having suffered Israeli attacks on various hard targets and
military installations--would be deterred from retaliation against the
Jewish State by the threat (implicit or explicit) of Israeli nuclear
counterretaliation. It is conceivable, of course, that this nuclear
strategy could fail and that Israel's nuclear weapons would then have to be
used for actual warfighting. The only military strategy capable of
preventing this prospect altogether lies in Israeli preemptive strikes
involving nuclear weapons, a strategy that would appear altogether
inconceivable.
There appears to be only one contingency in which nuclear warfighting
options might appear cost-effective to Israel: to prevent imminent
destruction of the Third Temple. Faced with this contingency, Israel would
very likely threaten to use whatever nuclear capability it had with the
intention of carrying out the threat. Should such threats be ignored,
however, the resultant nuclear destruction and societal disintegration in
the region could jeopardize Israel's continuance as a state, even though it
had used nuclear weapons only to stave off total annihilation.
Should Israel use nuclear weapons against non-nuclear adversaries
to prevent such annihilation, its continuance as a state would also be
jeopardized, in this case for political reasons. To assess the credibility
of an Israeli nuclear threat under conditions of expected annihilation, one
needs to understand the special perspectives of Jewish history. Plainly,
virtually all of Jewish Israel would view any concerted effort to annihilate
their country as more than war. Rather, they would view such an effort as
part of an ongoing process of genocide, and this in spite of the historical
variation in perpetrators.
When the territories become Palestine, will Israel be more or less
inclined to preparations for nuclear warfighting? Extrapolating from what
we have already assumed, namely that the creation of another hostile Arab
state and another "hot" border would heighten the prospect of catastrophic
war against the Jewish state, it is almost certain that Israel would be
substantially more dependent upon its nuclear capabilities. Whether such
capabilities would be put to better use as part of an "assured destruction"
strategy (MAD) or a "counterforce" (warfighting) strategy remains to be
calculated.
All things considered, Israel--if confronted by a new state of
Palestine--would be well-advised to do everything possible to prevent the
appearance of Arab nuclear powers, including pertinent non-nuclear
preemptions. Bringing its own bomb out of the basement is unlikely to serve
any serious purpose unless Jerusalem were to conclude that Arab
intractability toward the Jewish state had become overt and overwhelming
and that preparations for nuclearization in particular Arab states could
no longer be stopped, even by Israeli preemptive strikes. Under these
very portentous conditions, Israel would require a very believable (and
hence usable) nuclear deterrent, one that could be employed without
igniting Armageddon for all regional belligerents and one that could serve
some damage-limiting military purpose (whatever the collateral effects)
against Arab weapons (nuclear and non-nuclear) should deterrence fail.
In his article in THE BROWN JOURNAL OF WORLD AFFAIRS, "In the Shadow
of the Israeli Nuclear Bombs: Egyptian Threat Perceptions," Abdel Monem
Said Aly - Director of the Al-Ahram Center for Political and Strategic
Studies in Cairo - presents a prevailing Arab (specifically Egyptian) view
of Israel's undeclared "nuclear bombs." Acknowledging his country's
persistent pressure upon Israel to sign the NPT, Professor Said Aly
seemingly forgets that Israel's strategic policies are fashioned in
context. These policies are not created in a geopolitical vacuum.
Although, as the author argues, "Both geography and history...have defined
the constants of the Egyptian perception of national security," it is
remarkably ironic to conclude that it was creation of the State of Israel in
1948 that "constituted a major security threat to Egypt." Even today,
when a formal condition of peace obtains between Egypt and Israel, the
Egyptian side has ensured that the peace remains an altogether cold
one, and one that endures in the midst of almost frenetic Egyptian
militarization.
Professor Said Aly worries that Egypt is endangered from Israel
because the Jewish State "continues to possess a fanatic, fundamentalist
right wing...." Yet, the Netanyahu Government has refused to abrogate the
enormously debilitating (to Israel) surrenders compelled by Oslo and
remains committed altogether to defensive military policies. At the same
time, authentically fanatic, fundamentalist Islamic forces could topple the
Mubarak government at any moment, instituting a new regime in Cairo that
would likely terminate the Egypt-Israel Peace Treaty and move - perhaps
collaboratively - toward aggressive war. In this connection, it is also
worth noting that the Egypt-Israel Peace Treaty of 1979 does not
necessarily constrain Egypt from joining other Arab states in a war
against the Jewish State. A minute to Article VI, paragraph 5, of the
Treaty provides: "It is agreed to by the Parties that there is no assertion
that this Treaty prevails over other treaties or agreements or that other
Treaties or agreements prevail over this Treaty."
An uninformed reader, considering Prof. Said Aly's article, would
conclude that the history of Middle East conflict after 1948 was largely
the result of persistent Israeli aggressions, several through the Sinai. Of
course, on May 17, 1967, President Nasser demanded U.N. withdrawal from
the Sinai in preparation for Egyptian attack. By May 20, approximately
100,000 Egyptian troops, organized in seven divisions, together with 1,000
tanks, were concentrated along Israel's southwestern border.
After the withdrawal of the U.N. Emergency Force demanded by Egypt,
THE VOICE OF THE ARABS proclaimed: "As of today, there no longer exists an
international emergency force to protect Israel. We shall exercise
patience no more. We shall not complain any more to the U.N. about Israel.
The sole method we shall apply against Israel is total war, which will result
in the extermination of Zionist existence." Two days later, an
enthusiastic echo came from Hafez Assad, then Syria's Defense Minister:
"Our forces are now entirely ready...to initiate the act of liberation
itself, and to explode the Zionist presence in the Arab homeland....The time
has come to enter into a battle of annihilation."
With these facts in mind, Professor Said Aly claims to remain
concerned about an Israeli "surprise attack," and insists that Israel's
resort to anticipatory self-defense in June 1967 was merely aggression.
Looking to the future of the region, he insists further that: "Militarily,
Israel has secured for itself a position of superiority in both
conventional and non-conventional weapons." Nothing could be further from
the truth. No other country in the Middle East today is as effectively
susceptible to catastrophic war as is Israel. Deprived of its nuclear
weapons, as Professor Said Aly would recommend, Israel would not survive
another year.
But isn't this a contradiction? If Israel retains its nuclear weapons,
why should it be vulnerable to catastrophic war? The answer has to do
with the delicate nature of nuclear deterrence, with the incapacity of
nuclear weapons to stave off most forms of conventional war and with the
destructive synergy that might come to exist between war and terrorism.
Israeli does indeed have nuclear superiority in the region - a superiority
that is likely to obtain for a very long time - but this condition does not
necessarily imply superior power. Recall, in this connection, the incapacity
of another major nuclear power - the United States of America -to achieve
power against a third world adversary then called North Vietnam.
Reduced to its essential contours, Israel's existential problem is
this: A tiny state, indeed a microstate, surrounded by much larger,
steadily militarizing enemy states and by increasingly hostile insurgent
forces, seeks safety via credible deterrence, Yet, because deterrence can
be immobilized by various factors - for example, by enemy perceptions of an
Israeli unwillingness or incapacity to retaliate; by irrationality of enemy
leadership - Jerusalem must once again plan for various forms of
preemption. But defensive first-strikes by Israel would be fraught with
strategic and diplomatic risks, and may in fact already be infeasible.
Naturally, if any realistic hopes could be placed in the so-called "Peace
Process," the bleakness of Israel's security options would certainly be
improved. But no such hopes are reasonable. Rather, the Oslo Accords with
the P.L.O. remain entirely injurious to Israel's survival requirements.
What about active defenses, e.g., the Arrow ABM to which Prof. Said
Aly refers? If Israel could soon deploy effective defensive systems,
couldn't Jerusalem forego any preemption imperatives? After all, able to
intercept incoming missiles, Israel would have no tactical reason to strike
first.
Here, a number of critical problems surface. First, in the very best
of all possible worlds, Israel's ABM deployments are at least four to five
years away. Hence, in the interim, Israeli vulnerability to enemy attack
will be especially high. Second, because even a single unintercepted
nuclear or other unconventional warhead could produce unacceptable
damage, successful active defense will require a near-perfect interception
capability - a capability well beyond realization.
Professor Said Aly, in the fashion of most scholars - Arab and Israeli
- examines Israel's nuclear strategy and the Oslo Peace Process as if they
were essentially unrelated. There is nothing in Prof. Said Aly's
argument to suggest that what happens to Israel as a result of Oslo
concessions will impact its decisions on nuclear strategy and nuclear
weapons. Yet, depending upon the precise configuration of these ongoing
concessions - which will in any event be a more-or-less truncated Jewish
State with greatly reduced strategic depth - Jerusalem's reliance upon
nuclear weapons and strategy will vary considerably.
There are important connections between territorial vulnerabilities,
creation of a Palestinian state and removal of the nuclear bomb from
Israel's "basement." For now, still buffered from a "hot" eastern
border by West Bank/Judea/Samaria, Israel can reasonably afford to
maintain its posture of deliberate ambiguity. When, however, the Peace
Process produces "Palestine," Israel will likely feel compelled to move from
ambiguity to disclosure, a shift that would substantially increase reliance
upon nuclear strategies of various sorts.
Israeli nuclear weapons are not the problem. In the persistently bad
neighborhood called the Middle East, the real problem is a very far-
reaching and entirely unreconstructed Arab/Iranian commitment to "excise
the Jewish cancer." Faced with this commitment, the government in
Jerusalem should understand that the Peace Process is little more than a
temporary enemy expedient, a carefully contrived strategem to eliminate
Israel from the neighborhood.
Israeli nuclear weapons are crucial to Israel's survival and to
regional stability. With such weapons, Israel could deter enemy
unconventional attacks and most large conventional ones. Moreover, with
nuclear weapons, Jerusalem could launch non-nuclear preemptive strikes
against enemy state military targets that threaten Israel's annihilation.
Without these weapons, such strikes would likely represent the onset of a
much wider war because there would be no compelling threat of Israeli
counterretaliation. Thus, Israel's nuclear weapons are an impediment to
the actual use of such weapons and, inter alia, to the commencement of
regional nuclear war.
Professor Said Aly, of course, does not agree. He argues, for
example, that because of Israel's nuclear capability, "Egypt must be totally
dependent on Israel's good intentions." But why? Do these Israeli weapons
permit Jerusalem to demand certain political and/or military concessions
from Cairo? Certainly not. The Israeli nuclear weapons can serve to
prevent transformation of Egypt's cold peace into another Egypt-led hot
war, but they can assuredly not be used to extort any forms of Egyptian
surrender. Does Professor Said Aly expect either an Israeli "bolt-from-
the-blue" nuclear attack or an Israeli threat to initiate nuclear warfare?
How could he? What would Israel have to gain?
Professor Said Aly is concerned about "a clear imbalance in nuclear
power relations." Fearing that Israel's "nuclear monopoly" precludes
genuine nuclear deterrence in the region, he chooses to ignore altogether
Egyptian and other Arab chemical and biological weapons -
counterdeterrent weapons that could pose a very effective inhibitor of
any Israeli nuclear retaliations. This means that Israel's nuclear monopoly
notwithstanding (a monopoly that is, incidentally, a very temporary
phenomenon), Jerusalem's nuclear deterrent is increasingly subject to
immobilization by enemy state threats of chemical and/or biological
counter-retaliations.
Professor Said Aly is worried that Israel's nuclear arsenal prompts
regional nuclear proliferation. This is an especially curious argument
because it places blame for the expected spread of nuclear weapons not
upon the actual proliferants, but upon their intended victim. Moreover,
while the author is correct that "nuclear proliferation in the Middle East
can be very destabilizing for the entire region," the source of that
prospective destabilization is not Israel, a country - unlike certain of its
neighbors - that has never issued genocidal threats or launched missile
attacks upon civilian populations.
Professor Said Aly remarks on the alleged "discrepancy between
Israel's maximum needs and its actual nuclear capabilities," concluding that
this discrepancy "raises serious doubts about the credibility of Israeli
intentions." His point, it would seem, is that Israel's nuclear weapons are
presumptively for more than minimum deterrence and may even be for
aggression and/or war-waging. Here, Professor Said Aly ignores many
pertinent nuances of nuclear strategy, especially the precise kinds of
nuclear weapons involved (not all such weapons are the same), the question
of countervalue vs. counterforce targeting, and the requirements of
national survival if nuclear deterrence should fail.
Professor Said Aly wonders about Israel's development of tactical
nuclear weapons, and perhaps nuclear mines. In this regard, he worries
that the decision to use such weapons might be made more easily than a
decision to use larger, strategic weapons. Indeed, his worry is entirely
well-founded. Israeli nuclear deterrence, to function successfully,
requires nuclear weapons that are perceptibly usable. This does not mean
weapons that would increase the risk of war; on the contrary, it means
weapons that would be decidedly stabilizing.
Professor Said Aly claims that Israel has actually deployed some of
its nuclear weapons in times of grave national emergency. Although we
have no way of knowing whether this claim is plausible (neither, of course,
does Professor Said Aly), the author's fear - that "under conditions of
crisis, when the use or the threat of chemical weapons or conventional
missiles in massive quantities is real, Israel might use its nuclear
weapons" - is certainly correct. If Israel's Arab/Islamic neighbors do not
want to witness such a defensive Israeli use of nuclear weapons, all they
need do is refrain from chemical or massive conventional aggressions
against the Jewish State.
Professor Said Aly laments that "Israeli nuclear capability is one of
the ways for Israel to extract further means of conventional superiority
(emphasis in original) from the United States...." Yet, should Israel actually
be able to achieve or maintain such conventional superiority, Jerusalem's
reliance upon nuclear weapons could be expected to diminish.
Professor Said Aly comments upon the ambiguities surrounding Israeli
command authority over nuclear weapons, conditions which he fears, "in
times of tension, uncertainty or national crisis," would exacerbate the
prospect of "accidental use." Here we observe a rather clear non sequitur,
as there exists no observable relationship between clarity of authority
structure and nuclear weapons accident probability. Perhaps the author
really means unauthorized use rather than accidental use, but even this
kind of hypothesis would be prima facie incorrect. Knowing in advance
exactly who has the authority to order the use of Israeli nuclear weapons
could serve to identify unauthorized uses after the fact (who would care?)
but it would have no bearing on the possible prevention of unauthorized
uses by neighboring states. Further, does Professor Said Aly really expect
us to believe that any Arab nuclear power in the region would disclose its
relevant authority structures?
Finally, Professor Said Aly faults Israel for "still refusing to give
Palestinians their statehood" and for its ostensible insistence "on
occupying Arab territories, including Jerusalem...." Ironically, it has been
successive Israeli governments that have accorded legitimacy to the idea
of Judea and Samaria as "occupied Arab territories" and that have allowed
the notion of Jerusalem as a negotiable issue to be placed on the
diplomatic table. Instead of insisting upon maintenance of essential
strategic depth and upon the utter non-negotiability of Jerusalem -
insistence necessary for national survival - Israeli governments have
persistently surrendered to annihilatory Arab demands.
Israel has a great deal to fear. Facing a growing number of
adversaries with ballistic missiles and with aggressive nuclear
development programs, Jerusalem should now understand that
transformation of Judea/Samaria into Palestine will not stabilize the
region, but rather will provide Israel's enemies with the means and
incentives to destroy the Jewish State once and for all. Deprived of
territorial margins of safety, Israel could become seriously vulnerable to
total defeat. It follows that however loudly Arab scholars and leaders
might protest about Israeli "stalling" on the territories, the matter of
Palestinian statehood could have existential consequences for Israel.
Once such statehood is accepted, Palestine, looking first very much like
Lebanon, could wind up as Armageddon, a metamorphosis that would favor
neither Israeli nor Arab in an always explosive region.
Preemption and Anticipatory Self-Defense
Preemption may be appraised not only from the tactical perspective,
but also from the standpoint of international law. What, exactly, is the
status of preemption under these important rules and procedures? Where
it is understood as "anticipatory self defense," this customary
right has its modern origins in the Caroline incident, which concerned the
unsuccessful rebellion of 1837 in Upper Canada against British rule.
Following this incident, the serious threat of armed attack has generally
been taken to justify militarily defensive action. In an exchange of
diplomatic notes between the governments of the United States and Great
Britain, then U.S. Secretary of State Daniel Webster outlined a framework
for self defense which did not require an actual attack. Here, military
response to a threat was judged permissible so long as the danger posed
was "instant, overwhelming, leaving no choice of means and no moment of
deliberation." It goes without saying that Israel would likely act upon
precisely this kind of "danger posed."
Today, some scholars argue that the right of anticipatory self
defense articulated by the Caroline has been overridden by the specific
language of Article 51 of the UN Charter. In this view, Article 51 (which is
the pertinent codification of the law) fashions a new and more restrictive
statement on self defense, one that relies on the literal qualification of a
prior "armed attack." This narrowly technical interpretation ignores that
international law cannot compel a state to wait until it absorbs a
devastating or even lethal first strike before acting to protect itself.
Significantly, both the Security Council and the General Assembly refused
to condemn Israel for its 1967 preemptive attacks against certain Arab
states, signifying implicit approval by the United Nations of Israel's lawful
resort to anticipatory self defense.
The right of self defense by forestalling an attack is well
established in classical international law. As long ago as 1625, Hugo
Grotius, in Book II of The Law of War and Peace, indicates that self defense
is to be permitted not only after an attack has already been suffered but
also in advance, where "the deed may be anticipated." Or as he says a bit
later on, "It be lawful to kill him who is preparing to kill...."
Similarly, in
his text of 1758 known as The Law of Nations, Emmerich de Vattel asserts
that "The safest plan is to prevent evil," and that to do so a nation may
even "anticipate the other's design...."
Appropriately, because we are here concerned with the prospect of
Israel's preemptive strikes, both Grotius and Vattel - "founding fathers" of
international law - parallel the traditional Jewish interpreters. The Torah
contains a provision exonerating from guilt a potential victim of robbery
with possible violence if, in self defense, he struck down and, if necessary,
even killed the attacker before he committed any crime (Ex. 22:1). In the
words of the rabbis, "If a man comes to slay you, forestall by slaying him!"
(Rashi: Sanhedrin 72a). Although these arguments speak more generally of
interpersonal relations than of international relations in particular, they
are valid for the latter by extrapolation.
Israel's right to preempt under international law is strengthened
further by the ongoing nature of war with enemy states. According to
Grotius, citing to Deuteronomy in his THE LAW OF PRIZE AND BOOTY, the
Israelites, however, were exempted from the issuance of warning
announcements when dealing with previous enemies (what we might call today
ongoing or protracted war; precisely the condition that currently obtains
between Israel and all Arab states except Egypt). The Israelites, recounts
Grotius, had been commanded by God to "refrain from making an armed attack
against any people without first inviting that people, by formal
notifications,to establish peaceful relations...." Yet, he continues,
the Israelites....
thought that this prohibition was inapplicable to many of the
Canaanite tribes, inasmuch as they themselves had previously
been attacked in war by the Canaanites.
Hence, says Grotius, "we arrive at the following deduction":
Once the formality of rerum repetitio has been observed and a
decree on the case in question has been issued, no further
proclamation or sentence is required for the establishment of
that right which arises in the actual process of execution. For
[and this is especially relevant to modern Israel] in such
circumstances, one is not undertaking a new war but merely
carrying forward a war already undertaken. Thus the fact that
justice has once been demanded and not obtained, suffices to
justify a return to natural law....
Conclusion
A Palestinian State could do nothing to end the "war already
undertaken" between Israel and its existing state enemies. Rather, as we
have just seen, it would enlarge this category of enemies by one, undermine
Israel's security further by reducing strategic depth and allowable
mobilization time, and heighten the chances of Israeli preemptive strikes
and/or regional nuclear war. Although this does not suggest that "world
order" considerations in the Middle East be determined without
regard for Palestinian claims regarding human rights and self-
determination, it does suggest that these claims be balanced against
comparably important expectations for area-wide peace and stability. In
this connection, it must also be recalled that such expectations would
impact all pertinent populations, Palestinians as well as Israelis; that the
consequences of diminished regional security (including nuclear war) could
harm everyone, perhaps even irretrievably.

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