BY MARK DeSANTO — The Institute for National Security Studies (hereinafter, “INSS”) in Tel Aviv, Israel, conducted a “war game” on September 24, 2012, allowing sole access to a British film crew to capture the event. The war simulation game “was based on the scenario of a unilateral Israeli strike [on Iranian nuclear facilities] without US participation, after midnight on November 9.”
Although the INSS is not an official organ of the Israeli government, the University “describes itself on its website as an independent, nonpartisan academic institute but adds that it has ‘a strong association with the political and military establishment’ in Israel.”
The INSS “think tank” was comprised of “ex-Israeli diplomats and military officials,” divided into “ten groups each representing likely key players in the conflict – Israel, Iran, the US, Russia, Hezbollah, Egypt, Syria, Turkey, Russia and the UN. All the teams were made up of Israelis.”
The INSS reasoned that the war simulation was necessary based on the ever-increasing concern of Iranian nuclear development in recent times, noting, “it appeared that the fall of 2012 would be a critical period … after the U.S. and Israeli elections, the question of an [Israeli] attack [on Iran] will undoubtedly resurface.”
The war game simulated a pre-emptive strike by Israeli military forces on Iranian soil, taking place in the middle of the night and targeting Iranian nuclear facilities. Approximately twenty-four hours after the initial strike, the Israeli forces would execute a “second wave of strikes against Iran’s uranium enrichment facilities.”
One source noted that the simulation was designed to explore the likely outcome of Israel’s pre-emptive attack, while ignoring the international law implications and blatant customary international law violations; “it didn’t examine the legal or moral arguments for or against any such strike but rather focused on how the Iranians might retaliate and what the wider fallout would be.”
Considering that international law is implicated anytime a state takes military action against the sovereignty of a foreign state, it is necessary to consider the legal ramifications if Israel were to carry out the hypothetical pre-emptive attack on Iran nuclear facilities.
To begin, anytime a state’s military action against a foreign state is being analyzed, the United Nations Charter Article 2(4) mechanism is engaged. Article 2(4) is the general prohibition against the use of armed forces, which states, “[a]ll members shall refrain in their international relations from the threat or use of force against … any state.” Article 2(4)’s prohibition against the use of force is buttressed by Article 2(3), which further provides that “[a]ll members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice are not endangered.”
Plainly, any military attack by Israeli forces on Iran would be in direct contravention of Articles 2(4) and 2(3). However, Article 51 provides an exception to the prohibition against the use of force by permitting states to engage in self-defense military action in response to an armed attack.
Applying these two fundamental rules to the INSS’ hypothetical pre-emptive attack, Israel would have to argue that Iran’s nuclear development provided sufficient grounds for a pre-emptive attack to diffuse the potentially catastrophic damage Israel would suffer if Iran were to attack them using weapons of mass destruction. Such pre-emptive attack is categorized as either “anticipatory self-defense” or “preemption” in international law.
“Anticipatory self-defense” is the more acceptable reaction of the two, and is less likely to violate international law than preemption. A knife is used as an effective analogy to distinguish between anticipatory self-defense and preemption; for instance, anticipatory self-defense is analogous to an attacker charging at you with a knife, while preemption is analogous to the attacker merely purchasing the knife. Thus, anticipatory self-defense spawns from greater imminence of attack than pre-emption. As such, anticipatory self-defense is more consistent with the notion of self-defense protected by Article 51.
In order to avoid sanctions from the U.N. and violations of international law, Israel would need to suggest that Iran’s nuclear development is similar to the hypothetical knife coming at it, and is therefore sufficient grounds to allow anticipatory self-defense. This is not an easy argument to make, however, and would require Israel to present verifiable data to support its claim of an imminent Iranian nuclear attack.
In order to justify an attack on preemption or anticipatory self-defense grounds, the Caroline test must be satisfied. The Caroline test comes from the Caroline affair, which was a series of events that took place in 1837.
During the revolution of Canada against the British (in which the United States supported Canada’s secession), Canadian insurgents found refuge and private support from the Untied states along the U.S.-Canadian border. The Caroline, a small steam ship, was an American vessel used by the Canadian refugees to travel between camps.
British forces boarded the ship, set it on fire and set her loose to adrift over Niagara Falls, killing one persona and wounding several others. One of the perpetrators, a British soldier was arrested and the United States demanded reparations. The British government contested, however, that its destruction of the Caroline was permissible anticipatory self-defense.
From this argument arose the “Caroline Test”, which provides acts of self-defense should be confined to cases in which the necessity of self-defense is (1) instant, (2) overwhelming, (3) leaving not choice of means, and (4) no moment for deliberation; requiring that any acts be proportional to the threat posed in that they are justified by the necessity of self-defense, limited by that necessity, and kept clearly within the necessary bounds.
The “Caroline Test” is a fundamental principle of international law and a 19th century formulation of customary international law. The doctrine was reaffirmed by the Nuremberg Tribunal in assessing Germany’s invasion of Norway and Denmark during World War II.
Applying the Caroline Test to Israel’s hypothetical pre-emptive attack on Iran nuclear facilities, it is likely that Israel’s attack would not satisfy all of the requirements. First, Iran has been in the international spotlight for more than three years for its nuclear development. The United Nations has already sanctioned Iran for developing nuclear facilities. Based on these facts, there does not seem to be any instant threat as required by the first prong of the Caroline test. Additionally, based on these same facts, the fourth prong is also not satisfied because there is clearly ample time for Israel to deliberate about its countermeasure.
Although the threat of nuclear weapons is overwhelming (thus likely satisfying the second prong) Israel would be hard-pressed to suggest that Iran’s nuclear production leaves to choice of alternative means. As previously mentioned, Iran has already been sanctioned by the U.N. and strongly suggests that its nuclear production is solely for peaceful energy. In light of Iran’s vehement suggestion that the nuclear facilities are solely for producing energy, an armed attack by Israel would not be proportional to the threat posed by merely producing nuclear energy.
Based on the Caroline test, it’s good that the attack was only a hypothetical one simulated by a non-state actor instead of Israel. Because the facts are not sufficient to satisfy the Caroline test, any pre-emptive attack under these circumstances would be a blatant violation of customary international law and Article 2(4) of the United Nations Charter.
 U.N. Charter art. 2, para. 4.
 U.N. Charter art. 2, para. 3.
 See U.N. Charter art. 51.
 See Duffy, Helen (2005). The ‘War on Terror’ and the Framework of International Law. Cambridge University Press. p. 157. ISBN 978-0521547352 (discussing United States Secretary of State Daniel Webster’s pronouncement that the necessity for forcible reaction must be “instant, overwhelming, leaving no choice of means, and no moment for deliberation”).