The cries of illegality persist. The responses have rightly made the moral case for taking decisive action and pointed out that international law is a work in progress. But these are sweeping statements and generalizations. There is more to add on the specifics.

Those declaring illegality would at least have to accept the following: 1) Article 51 of the UN Charter leaves intact the right of self-defense under customary international law. Customary international law does not require a state to be a sitting duck: it recognizes anticipatory self-defense; 2) customary international law is not static, and nineteenth century conceptions of what an ‘imminent’ threat looked like are not fossilized; and 3) the principles of customary international law may be modified by changes introduced by state practice.

Turning, then, to the reality. The temporal window for reactive self-defense is a tiny fraction of the few minutes it takes for an Iranian hypersonic ballistic missile to travel around 1700 km to Israel. Reactive self-defense is a last resort. It means that the theatre of war is then already above the skies of Israel, leaving open the risk that missiles get through the various interception systems. Even when there is a successful interception, there are the second order effects, including wreckage falling from the sky and the stress to the population running to shelters, even inducing cardiac events on occasion.

Anticipatory self-defense rightly seeks to remove these risks. The threshold test for anticipatory self-defense is usually said to be that an attack is imminent. It is true that the language of Secretary of State Rubio and President Trump has been closer to the language of the Bush doctrine of pre-emptive self-defense than anticipatory self-defense. That doctrine, applied here, seeks to recast the concept of imminent threat to focus instead on the capabilities and objectives of Iran in order to destroy weapons which might be used sometime in the future. The moral case for that is obvious, but we need look no further than anticipatory self-defense.

Those who say there was no evidence of an imminent threat omit three important points.

First, the assumption that there would have been some sort of indicator, such as mobilization of equipment or priming of missiles, is outdated. Many of the missiles fired at Israel have been ‘ready-to-go’ solid fuel missiles. This means they will not have needed overt preparatory action such as fueling at the launch site.

Second, Iran was already at war with Israel, through its proxies. Degrading the capabilities of those proxies was, of course, necessary. The see-saw effect was that reducing Iran’s scope for indirect action could then lead to an increased likelihood of direct action by Iran. It is rational to put this case even higher. The harm caused to those proxies has been so significant that it made a direct course of action by Iran inevitable.

Third, when ready-to-go missiles are in the possession of a regime intent on destroying Israel which has been deprived of previous offensive options, the resultant inevitability of direct action creates the conditions for anticipatory self-defense.

© The Times of Israel (Blogs)