Indiana Int’l & Comp.

Law Review
Volume 31 Number 3 2021

ARTICLES

ISRAELI NUCLEAR DETERRENCE AND INTERNATIONAL

LAW: CALCULATING EFFECTS OF POWER
POLITICS AND PANDEMICS1

LOUIS RENÉ BERES*

Keywords: pertinent weapons; weapon system infrastructures; threat credibility;

missile capabilities; anti-missile capabilities; willingness to launch; world system
context; synergistic; never without it; latent hostility; wars of aggression.

1. In principle, at least, these effects, which might be singular or interrelated, could

sometimes manifest as benign or salutary, rather than “malignant” or destabilizing.
* PhD, 1971, Princeton University; Emeritus Professor of International Law, Purdue
University. This Article is special to Indiana International & Comparative Law Review and was
composed October 15, 2020. The author can be contacted at lberes@purdue.edu.
Professor Beres is the author of many major books and monographs dealing with nuclear
strategy and nuclear war, including Terrorism and Global Security: The Nuclear Threat
(Westview,1979); Apocalypse: Nuclear Catastrophe in World Politics (The University of Chicago
Press,1980); Mimicking Sisyphus: America’s Countervailing Nuclear Strategy (D.C.
Heath/Lexington, 1983); and Security or Armageddon: Israel’s Nuclear Strategy (D.C.
Heath/Lexington, 1986). His twelfth and latest book is SURVIVING AMID CHAOS: ISRAEL’S
NUCLEAR STRATEGY (2016; 2nd ed., 2018) (https://paw.princeton.edu/new-books/surviving-amid-
chaos-israel%E2%80%99s-nuclear-strategy). In December 2016, a special monograph was
published at Tel Aviv University co-authored with U.S. General (USA/ret.) Barry Mc Caffrey,
titled: Israel’s Nuclear Strategy and America’s National Security (https://sectech.tau.ac.il/
sites/sectech.tau.ac.il/files/PalmBeachBook.pdf).
A previous contributor to the Indiana International and Comparative Law Review, Professor
Beres’ articles have appeared in U.S. News & World Report; The New York Times; The Hill; The
Atlantic; JURIST; The Jerusalem Post; Israel Defense (Tel Aviv); The Washington Post; Harvard
National Security Journal (Harvard Law School); Yale Global Online; Bulletin of the Atomic
Scientists; International Security (Harvard University); The Israel Journal of Foreign Affairs
(Israel); Parameters: Journal of the U.S. Army War College (Pentagon); The War Room
(Pentagon); Modern War Institute (West Point); Small Wars Journal; World Politics (Princeton);
The Brown Journal of World Affairs; INSS Strategic Assessment (Israel); Oxford University Press;
and International Journal of Intelligence and Counterintelligence. He has lectured widely on law
and strategy issues at both United States and Israeli military/intelligence institutions, including the
National Security College (IDF).
Dr. Louis R. Beres was born in Zürich, Switzerland, at the end of World War II.
330 INDIANA INT’L & COMP. LAW REVIEW [Vol. 31:329

INTRODUCTION
“The fox knows many things, but the hedgehog knows one big thing.”

Archilochus, Fragments2

For Israel, constantly challenged by many changing “things” in the Middle

East, it is most important to know “one big thing.” Accordingly, even after
implementing new U.S.-brokered pacts with the UAE, Sudan, Morocco, and
Bahrain—agreements that more formally align Jerusalem with certain Sunni Arab
opponents of Shiite Iran—nuclear deterrence should occupy a place of priority in
Tel Aviv. 3 To be sure, Israel will be tempted to believe that Iran’s nuclear threat
is now diminishing in consequence of the new agreements, but that belief could
prove erroneous. It would be based upon a too-optimistic view of
“countervailing” Sunni power.4
Also, worth bearing in mind for Israeli military planners and policy-makers
is that incremental growth of Sunni Arab power, however achieved, might not
necessarily be in the overall security interests of the Jewish State.5 In time, Saudi
Arabia, Egypt, and perhaps a smaller Gulf Arab country could decide to “go
nuclear.” Whether any such development would be a net plus or net negative for
Israel’s security is presently too tricky to predict. In the worst-case scenario, some
allegedly “pro-Israel” Sunni Arab states would no longer offer Israel a plausibly
purposeful anti-Shiite bloc but, instead, represent a genuinely unwelcome
adversarial coalition.
Even if there were no Sunni Arab nuclear proliferation issues to consider,
Israel’s presumptive nuclear forces and strategy could remain relevant to

2. ISAIAH BERLIN, THE HEDGEHOG AND THE FOX: AN ESSAY OF TOLSTOY’S VIEW OF
HISTORY (Simon & Schuster eds., 1953) (quoting the Greek poet, Archilochus).
3. See Daniel Klapper, Israel Cabinet Unanimously Approves UAE Peace Agreement,
JURIST (Oct. 12, 2020, 11:36 AM), https://www.jurist.org/news/2020/10/israel-cabinet-
unanimously-approves-uae-peace-agreement/ [https://perma.cc/XD48-63UW].
These pacts with the four listed states, known collectively as the “Abraham Accords,” were
negotiated and signed under the aegis (“good offices”) of the Trump administration. In typical
diplomatic discourse, that is what is meant by “brokered.” See The Abraham Accords, On the
Abrhaham Accords, U.S. DEPT . OF STATE, https://www.state.gov/the-abraham-accords/ (last visited
Apr. 13, 2021).
4. See generally LOUIS R. BERES, MIMICKING SISYPHUS: AMERICA’S COUNTERVAILING
NUCLEAR STRATEGY (1983).
5. An intervening factor here (an “intervening variable”) would be the persistence of
Palestinian nationalism and Palestinian terrorism. For the moment, at least, it would appear that the
recent Abraham Accords have exacerbated Palestinian fears and certain corollary intentions. See,
e.g., Jay Malwade & Pooja Mehta, Israel’s Threat of Annexation: Turning a Blind Eye to
International Law, JURIST (Oct. 1, 2020 11:30 PM), https://www.jurist.org/commentary/
2020/10/malwade-mehta-israel-annexation/ [https://perma.cc/EN3C-VR7R].
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conventional war avoidance.6 Although counterintuitive and widely

unrecognized, nuclear weapons could ultimately offer substantial benefits to
Israel for deterring non-nuclear weapons of certain enemies. Here, too, the
relevant Arab adversary could include a sub-state enemy or a “hybridized” (state-
sub-state) foe.7

ANALYSIS
One big question emerges: How shall Israel best ensure a viable and suitably
comprehensive nuclear deterrence posture?8 First, military assessments of any
individual state’s nuclear deterrence posture must focus on a number of different
and complementary elements. These elements concern “pertinent weapons” (both
offensive and defensive), “weapon system infrastructures,” and variously related
issues of “threat credibility.” In the specific case at hand, the case of Israel, the
analytic focus has generally highlighted the small country’s presumptive “missile
and anti-missile capabilities”9 and its expected “willingness to launch” under

6. See Louis R. Beres, Israel’s Nuclear and Conventional Deterrence, BESA CENTER (Apr.
29, 2018), https://besacenter.org/perspectives-papers/israel-nuclear-deterrence/ [https://perma.
cc/9EKF-BZJD]; Louis R. Beres & Zalman Shoval, Creating a Seamless Strategic Deterrent: An
Israel Case Study, MOD. WAR INST. (May 13, 2019), https://mwi.usma.edu/creating-seamless-
strategic-deterrent-israel-case-study/ [https://perma.cc/QY5U-CSFK].
7. In this connection, the Palestinian Authority should come promptly to mind, especially
because it looks with strong disfavor upon the recent Israel-UAE-Bahrain pacts. All prospective
Palestinian terror would have early and formal roots in the Palestinian National Covenant. Calling
officially for sustained Arab violence against Israel, this document was adopted in 1964, three years
before the 1967 Six Day War. This means that the PLO’s core guidance on terror was first
published—together with its explicit references to the annihilation of Israel—three years before
there were any “occupied territories.” For the Palestinian Authority, which until October 2015, had
still officially agreed to accept a “Two-State Solution,” the underlying position of protracted war
was part of a broader strategy of incorporating Israel into “Palestine.” This irredentist incorporation
was already codified on all PA maps. The most unambiguous Palestinian call for the removal of
Israel remains the PLO’s “Phased Plan” of June 9, 1974. Under the authoritative laws of war, this
Plan represents an unhidden commitment to carry out various certifiable crimes against humanity.
8. Ultimately, as I have written in other places, the prospective success of Israeli nuclear
deterrence vis-à-vis any pertinent enemy aggressions, whether nuclear or non-nuclear, must remain
contingent upon the immutable core assumption of enemy rationality. At the same time, as an
intriguing corollary, it could prove useful for Israel itself, on occasion, to pretend or feign
irrationality. See, e.g., Louis R. Beres, Israel, Playing the Role of ‘Mad Dog’, U.S. NEWS (Mar. 31,
2016 3:10 PM), https://www.usnews.com/opinion/blogs/world-report/articles/2016-03-31/case-for-
irrationality-in-israels-nuclear-deterrence-and-defense-strategy (last visited May 12, 2021); Louis
R. Beres & John Chain, Living with Iran: Israel’s Strategic Imperative, BESA CENTER (May 28,
2014), http://besacenter.org/wp-content/uploads/2014/05/Loius-Rene-Beres-and-General-John-T-
Chain-Living-with-Iran-PP249-May-28.pdf [https://perma.cc/N2XM-UHMR].
9. Israel’s anti-missile defense shield has four layers: The Iron Dome system for intercepting
332 INDIANA INT’L & COMP. LAW REVIEW [Vol. 31:329

widely assorted enemy threat narratives.

A more refined assessment is now to reinforce Israel’s nuclear deterrence
posture best. This improved focus should be directed, like a laser beam, at world
system context—an obligation that brings forth both geo-strategic and
jurisprudential foci. At times, these “foci” may be strongly interdependent or
overlapping; then, at other times, they may be “force-multiplying.”10 Foci is a
common term among military strategists, meaning that when several pertinent
factors intersect or overlap, the overall effect is enhanced. This effect, moreover,
can be either desired or undesired and contain certain core elements of
“synergy.”11
For all competent investigators, various dire questions will need to be raised
and answered sequentially, capably, and dialectically.12 How should interested
analysts best proceed? The single most revealing expression of the current world
legal system context is easy to identify. In essence, this expression encompasses
all variables now being shaped or coalesced as “Cold War II.”13 This is not
because always-transient U.S.-Russian rivalry is necessarily more significant than
the fundamentally anarchic system structure originally bequeathed at the Peace
of Westphalia in 1648.14 Rather, such recurrent rivalry, unlike the historically

short-range rockets; David’s Sling for medium-range rockets; Arrow-2 against intermediate-range
ballistic missiles; and Arrow-3 for deployment against ICBM’s and (potentially) satellites. See
LOUIS RENÉ BERES, SURVIVING AMID CHAOS: ISRAEL’S NUCLEAR STRATEGY (2016).
10. This is a common term among military strategists, meaning that when several pertinent
factors intersect or overlap, the overall effect is enhanced. This effect, moreover, can be either
desired or undesired, and contain certain core elements of “synergy.” See Surviving Amid Chaos:
Israel’s Nuclear Strategy, ISRAELDEF. (Sept. 26, 2016), https://www.israeldefense.co.il/en/content/
surviving-amid-chaos-israels-nuclear-strategy [https://perma.cc/3C4R-ZU82].
11. See generally LOUIS RENÉ BERES, supra note 9.
12. Dialectical thinking originated in Fifth Century BCE Athens, as Zeno, author of the
Paradoxes, had been acknowledged by Aristotle as its inventor. Further, in the middle dialogues
of Plato, dialectic emerges as the supreme form of philosophic/analytic method. The dialectician,
says Plato, is the special one who knows how to ask and then answer vital questions. From the
standpoint of a necessary refinement in Israeli strategic planning, this knowledge should never be
taken for granted.
13. See Louis René Beres, Israeli Security in a Second Cold War, THE HILL (Dec. 16, 2015,
7:30 AM), https://thehill.com/blogs/pundits-blog/international/263398-israeli-security-in-a-second-
cold-war [https://perma.cc/J9KL-TX8A].
14. See Münsterscher Friedensvertrag [Münster Peace Treaty], Oct. 24, 1648, 1 Consol. T.S.
271; Osnabrücker Friedensvertrag [Osnabrück Peace Treaty], Oct. 24, 1648, 1 Consol. T.S. 119.
This “Westphalian” anarchy stands in stark contrast to the legal assumption of solidarity between
all states in the presumably common struggle against aggression and terrorism. Such a peremptory
expectation (known formally in international law as a jus cogens assumption), is already mentioned
in Justinian, Corpus Juris Civilis (533 C.E.); HUGO GROTIUS , 2 DE JURE BELLI AC PACIS LIBRI
TRES 461-521 (Francis W. Kelsey, trans., 1925) (1690); 1 LE DROIT DES GENS 100-09 (1758). My
point here is not any verifiable assertion of fact, but rather an author’s, as a specialist’s, comparison
of a dominant bilateral relationship (U.S.-Russia) with world system anarchy. See Louis René
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underlying system of geopolitics or decentralized power balancing,15 is still

potentially remediable or manipulable.
With little reasonable cause for accepting any informed dissent or
disagreement, the present system of world politics is coming to resemble or
replicate certain earlier bifurcations of “Cold War I.” This transformation—or
perhaps “retransformation”—applies with evident regard to the two still-
prevailing adversarial superpowers. “Classic” bipolar antagonism between the
United States and Russia is most recognizable amid (1) a steadily expanding
nuclear arms race—now highlighted by the American president’s unilateral
dismantling of the law-based arms control regime; (2) various specific points of
more-or-less apparent geopolitical disagreement (e.g., China, India, and the
Middle East); (3) continually expanding differences16 regarding worldwide
human rights;17 and (4) an unprecedented worldwide disease epidemic or
“plague.”18 Perhaps, even by definition, this last “biological” factor is most
problematic and potentially most consequential.19
To assess the prospective impact of these four complex factors, analysts and

Beres, Israeli Security in a Second World War, supra note 13.

15. Historically, the idea of a balance of power—an idea of which the nuclear-age balance
of terror is a current variant—has never really been more than a facile metaphor. In fact, it has
never had anything to do with ascertaining any true equilibrium. As such a balance is always a
matter of individual and more-or-less subjective perceptions, adversary states can never be
sufficiently confident that identifiable strategic circumstances are “balanced” in their favor. In
consequence, each side perpetually fears that it will be left behind, and the continual search for
balance produces ever wider patterns of insecurity and disequilibrium.
16. Sometimes there is little actual or tangible difference between the Trump
Administration’s “pragmatic” view of human rights and that of the Kremlin. In Syria, lamentably,
they coincide “perfectly.”
17. In essence, postulating the emergence of “Cold War II” means expecting that the world
legal system is becoming increasingly bipolar. See generally Louis René Beres, Bipolarity,
Multipolarity, and the Reliability of Alliance Commitments, 25 W. POL. Q.702, 702-10 (1972);
Louis René Beres, Bipolarity, Multipolarity, and the Tragedy of the Commons, 26 W. POL. Q. 649,
649-58 (1973); Louis René Beres, Guerillas, Terrorists, and Polarity: New Structural Models of
World Politics, 27 W. POL. Q. 624, 624-36 (1974).
18. See generally Harley Schlanger, Will the Trump Administration Fight the Coronavirus
or China?, MOD. DIPL. (May 25, 2020), https://moderndiplomacy.eu/2020/05/25/will-the-trump-
administration-fight-the-coronavirus-or-china/ [https://perma.cc/89UH-Z6RC].
19. In contrast to U.S. President Donald J. Trump, Tedros Adhanom Ghebreyesus, the
Director General of the Word Health Organization (“W.H.O.”), spoke modestly, intelligently and
purposefully:
COVID-19 does not discriminate between rich nations and poor, large nations and
small. It does not discriminate between nationalities, ethnicities, or ideologies. Neither
do we,” he said. “This is a time for all of us to be united in our common struggle against
a common threat, a dangerous enemy. When we’re divided, the virus exploits the cracks
between us.
334 INDIANA INT’L & COMP. LAW REVIEW [Vol. 31:329

scholars will have to account for specific starkly bewildering interactions between
them. On occasion, these interactions could be expressly “synergistic.”
Synergistic represents an always-daunting quality in which the “whole” of any
single identified effect is greater than the calculable sum of its constituent
“parts.”20 These hard-to-predict expectations will require exceptional and capable
evaluations.21 Included in such synergies would be the anticipated effects of
Covid-19 on adversarial decision-makers (state and sub-state) and on the
considering country’s (here Israel) own principal decision-makers. To a greater
or lesser extent, of course, such hard-to-quantify effects would be filtered by
appropriate and sometimes “peremptory” considerations of international law.22
There is more. For Israeli military planners and some others who might also
be interested in Israel’s nuclear strategy, core U.S.-Russian antagonisms must be
studied together with Israel’s relevant weapon systems and its presumptive
nuclear threat credibility. For refined analysts, these system-defining antagonisms
are in constant flux and are changing (simultaneously) in both foreseeable and
unforeseeable ways.
Going forward, superpower antagonisms, tempered or buffered by
international law, could become increasingly vital or even determinative for
Israeli nuclear deterrence. In part, these critical antagonisms could themselves be
impacted by the “biological variable” that is the Covid-19 pandemic.
Asymmetrical levels of success in dealing with the plague could make one side
or the other more or less venturesome/aggressive.23 Here, of course, any actual
and accurate recognition of asymmetries would be an integral part of the
“equation.”
Furthermore, a great deal will ultimately depend upon the precise manner in
which the resurrected or reborn bipolar rivalry may impact this equation and,
derivatively, on the critical, underlying elements of Israel’s strategic posture.24

20. See Schlanger, supra note 18.

21. See Louis R. Beres, Threat Convergence: What to Do When the Adversarial Whole is
Greater than the Sum of Its Parts, MOD. WAR INST . (Apr. 18, 2019), https://mwi.usma.edu/threat-
convergence-adversarial-whole-greater-sum-parts/ [https://perma.cc/453Q-MML5].
22. According to the Vienna Convention on the Law of Treaties art. 53: “a peremptory norm
of general international law is a norm accepted and recognized by the international community of
states as a whole as a norm from which no derogation is permitted and which can be modified only
by a subsequent norm of general international law having the same character.” See Vienna
Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, 8 I.L.M. 679 (entered into
force Jan. 27, 1980).
23. Reciprocally, almost by definition, it could have an opposite effect upon the adversarial
state or terror group.
24. One core issue here would concern Israeli reliance upon a steadily weakening US for
“extended deterrence.” Inter alia, going forward, Israel could sometime find itself lined up more
closely on certain issues with Moscow than with Washington. See Louis R. Beres, Staying Strong:
Enhancing Israel’s Essential Strategic Options, HARV. J. NAT ’L SEC. (Jun. 13, 2014), https://
harvardnsj.org/2014/06/staying-strong-enhancing-israels-essential-strategic-options-2/
[https://perma.cc/KQ3T-JN83].
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This discoverable “manner of impact” could depend considerably upon

Jerusalem/Tel Aviv’s multiple and overlapping national nuclear power
alignments with Russia or the United States, or (conceivably) with both.
Antecedent to any such starkly complex considerations, some of which could
include pandemic assistance from Moscow and Washington, much will depend
upon (1) the expected rationality or non-rationality of each national nuclear
power; and (2) the plausible interactions or synergies detectable between these
particular nuclear adversaries and their respective alliance partners or clients.
Regarding the first concern, Israel’s planners will always need to bear in
mind the timeless wisdom of German philosopher Karl Jaspers’ Reason and
Existence (1935): “The rational is not thinkable without its other, the non-
rational, and it never appears in reality without it.”25 This compelling assumption
exhibits a rudimentary understanding for almost anyone engaged in strategic
nuclear threat analyses. “Everything is very simple in war,” counsels Carl von
Clausewitz in On War, “but even the simplest thing is difficult.”26 This generally
valuable insight remains persuasively valid during periods of active conflict and
in those unsteady periods of “latent hostility”—i.e., Thomas Hobbes’ “state of
war”27 —that obtain between still-possible or still-impending “wars of
aggression.”28
Going forward, all relevant analysts will need to take continuous heed of the
pandemic, a microbial variable that could prove determinative for a variety of
different reasons, including its potential effects upon decisional rationality. Such
effects would need to be explored among friends as well as foes and would
necessarily make each adversarial party (state and sub-state) wary of others’
“pretended irrationality.” By definition, inter alia, the pandemic variable could
make “normally” complex decisional calculations even more dense and difficult
to decipher.
Those considerations of operational difficulty may obtain during “only” a
“cold war” that seventeenth-century English philosopher Thomas Hobbes had
already forecast. In his classic analytic text, Leviathan (1651), this early political
thinker (who had been widely read by the founding fathers of the United States,
especially Jefferson) opines that a condition of war exists not only during periods

25. KARL JASPER, REASON AND EXISTENCE (1935), reprinted in EXISTENTIALISM FROM
DOSTOYEVSKY TO SARTRE 158 (Walter Kaufman ed., 1956) (emphasis added).
26. This statement refers to the unpredictable effects of errors in knowledge and information
concerning intra-Israel (IDF/MOD) strategic uncertainties; on Israeli and Iranian under-estimations
or over-estimations of relative power position; and on the unalterably vast and largely irremediable
differences between theories of deterrence, and enemy intent “as it actually is.” See CARL VON
CLAUSEWITZ, Über das Leben und den Charakter von Scharnhorst, HISTORISCH-POLITISCHE
ZEITSCHRIFT (1832), in Barry D. Watts, CLAUSEWITZIAN FRICTION AND FUTURE WAR 9 (1996).
27. See THOMAS HOBBES, LEVIATHAN OR THE MATTER, FORME AND POWER OF
COMMONWEALTH, ECCLESIASTICALL AND CIVILL 83 (University Press 1904).
28. For the specific crime of aggression under international law, see G.A. Res. 3314 (XXIX),
at 142-43 (Dec. 14, 1974).
336 INDIANA INT’L & COMP. LAW REVIEW [Vol. 31:329

of “actual fighting,” but also whenever there exists merely “a known disposition
thereto.”29 Today, such a “disposition” is instantly recognizable throughout the
Middle East, but—conceivably—in different and variously confusing ways at a
time of “plague.”
In principle, at least, the conspicuously common global interest in fighting
pandemic could sometimes become overriding, thereby rendering the already
dissembling Hobbesian “war of all against all” more rather than less tolerable.30
Even during the expansive pre-nuclear era in world law and politics, a
precarious logic of deterrence had obtained within the global state of nature.
Already, there had been operative a fearful condition of raw competition,
corrosive violence, and seemingly perpetual anarchy. Despite considerable
nuance from century to century, from year to year, this balance of power had been
obtained since the seventeenth-century Peace of Westphalia (1648). In legal
terms, this “Westphalian” system is generally thought of as a decentralized or
“horizontal” system of international law.31
Long before the advent of nuclear weapons, the worst “state of war”
(including ones without any “actual fighting”) would have been characterized by
a “dreadful equality.” Here, world politics would have taken place within a
broadly chaotic bellum omnium contra omnes, a vastly confusing context wherein
“the weakest has strength enough to kill the strongest.”32 In such opaque
circumstances, especially ones where “dreadful equality” would coincide with
expanding disease epidemics, the potential sources of decision-making
bewilderment could quickly multiply.
In any such worst-case configuration—most apparent today wherever nuclear
proliferation would manage to continue without any meaningfully correlative
legal inhibitions—the life of individual human beings and entire states must
inevitably be “solitary, poor, nasty, brutish and short.”33 For Israel, the shifting
parameters of Cold War II and certain related issues of enemy rationality could
soon have indeterminate or foreseeable effects upon its presumptive nuclear
doctrine and strategy. This includes the plainly diverse issues surrounding any
still-upcoming policy choices between “nuclear ambiguity” and “nuclear
disclosure.”34

29. HOBBES, supra note 27, at 81-86.

30. Id.
31. In this connection, noted Sigmund Freud:
Wars will only be prevented with certainty if mankind unites in setting up a central legal
authority to which the right of giving judgment upon all shall be handed over. There are
clearly two separate requirements involved in this: the creation of a supreme agency and
its endowment with the necessary power. One without the other would be useless.
Collected Papers, in LOUIS R. BERES, THE MANAGEMENT OF WORLD POWER: A THEORETICAL
ANALYSIS 27 (1973).
32. HOBBES, supra note 27, at 81.
33. Id. at 84.
34. See Louis R. Beres, Changing Direction? Updating Israel’s Nuclear Doctrine, 17
STRATEGIC ASSESSMENT 93, 93-106, INST. NAT ’L. SEC. STUDIES (Oct. 2014), https://www.inss.
2021] ISRAELI NUCLEAR DETERRENCE AND 337
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For Israel, a state sorely lacking in strategic depth,35 the former posture has
prevailed unchallenged, at least until today. This problematic stance is sometimes
referred to commonly and metaphorically as Israel’s “bomb in the basement.”36
Still, as a bipolar axis of conflict is now being reaffirmed in world politics by the
principal superpowers, and as prospects for enemy irrationality are arguably
greater than ever before,37 Jerusalem/Tel Aviv will have to make appropriate
modifications to its nuclear deterrence doctrine and posture. Of necessity,
included here would be assorted policy considerations of preemption or (as
described in international law) “anticipatory self-defense.”38

org.il/publication/changing-direction-updating-israels-nuclear-doctrine/ [https://perma.cc/EX49-
9YEQ].
35. A great deal has been written on pertinent questions of “strategic depth.” The heart of this
issue was addressed as early as June 29, 1967, when a U.S. Joint Chiefs of Staff memorandum
specified that returning Israel to pre-1967 boundaries would drastically increase its vulnerability.
The then Chairman of the JCS, General Earl Wheeler, concluded that for minimal deterrence and
defense, Israel must retain Sharm el Sheikh and Wadi El Girali in the Sinai; the entire Gaza Strip;
the high ground and plateaus of the mountains in Judea and Samaria; and the Golan Heights, east
of Quneitra. See Gail Winston, Israel’s Chief of Staff Cites U.S. Joint Chiefs of Staff on Israel’s
Defensible Borders, THE CAUCUS CURRENT 24-25 (Sept. 1993).
36. See Zeev Eytan, A Nuclear or Conventional Defense Posture?, in LOUIS RENÉ BERES,
SECURITY OF ARMAGEDDON: ISRAEL’S NUCLEAR STRATEGY 89 (1986); Stephen A. Cimbala, An
Israeli Nuclear Deterrent: Implications for U.S.-Soviet Strategic Policies, in SECURITY OF
ARMAGEDDON: ISRAEL’S NUCLEAR STRATEGY 133-42 (1986); Robert A. Friedlander, The
Armageddon Factor: Terrorism and Israel’s Nuclear Option, in SECURITY OF ARMAGEDDON:
ISRAEL’S NUCLEAR STRATEGY 151-58 (1986).
37. In genuinely scientific terms, of course, there are no reliably accurate ways to appraise
these unprecedented prospects as true and ascertainable probabilities.
38. This permissible option can be found not in the conventional law (the U.N. Charter art.
51 supports only post-attack expressions of individual or collective self-defense), but in customary
international law. The precise origins of anticipatory self-defense in such customary law lie in the
Caroline, a case that concerned the unsuccessful rebellion of 1837 in Upper Canada against British
rule. Following this case, the serious threat of armed attack has generally justified certain militarily
defensive actions. 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 that did not require an antecedent attack. Here, the jurisprudential framework permitted a
military response to a threat so long as the danger posed was “instant, overwhelming, leaving no
choice of means, and no moment for deliberation.” See Beth M. Polebaum, National Self-defense
in International Law: An Emerging Standard for a Nuclear Age, 59 N.Y.U. L. REV. 187, 190-91
(1984) (noting that the Caroline case had transformed the right of self-defense from an excuse for
armed intervention into a legal doctrine). See Hugo Grotius, Of the Causes of War, and First of
Self-Defense, and Defense of Our Property, in 2 CLASSICS OF INTERNATIONAL LAW 168-75
(Carnegie Endowment Trust Ed. 1925) (1625); Emmerich de Vattel, The Right of Self-Protection
and the Effects of the Sovereignty and Independence of Nations, in 3 CLASSICS OF INTERNATIONAL
LAW 130 (Carnegie Endowment Trust Ed. 1916) (1758). See also SAMUEL PUFENDORF, THE TWO
338 INDIANA INT’L & COMP. LAW REVIEW [Vol. 31:329

Until today, in principle, at least, Israel’s national nuclear doctrine and

posture have remained determinedly ambiguous. At the same time, in effect,
traditional ambiguity had already been ostentatiously breached at the highest
possible level by two of Israel’s prime ministers, first, by Shimon Peres, on
December 22, 1995, and then again by Ehud Olmert on December 11, 2006.
Peres, speaking to a group of Israeli newspaper and magazine editors, had then
affirmed publicly: “give me peace, and we’ll give up the atom. That’s the whole
story.” When Olmert later offered similarly general but also revelatory remarks,
they were widely (but perhaps wrongly) interpreted as “slips of the tongue.”
Today, as Moscow and Washington once again become more recognizably
adversarial—in part regarding their different positions and involvements
throughout the Middle East—a fundamental question should be resurrected in
Jerusalem:
Is comprehensive nuclear secrecy in the best survival interests of the Jewish
State?39
To respond appropriately to this multi-layered question, Israel must begin
with the problematic assumption that in any such complex strategic matters,
“truth” could be counterintuitive. A beneficial answer to this challenging query
must be grounded in the tangible expectations and exigencies of formal strategic
doctrine. Whatever else Jerusalem/Tel Aviv may already have in mind concerning
such doctrine, its response ought never to be merely a series of incremental ad
hoc decisions or otherwise unreflective “seat-of-the-pants” policies, that is,
positions that are casually invented or re-invented from one beleaguering national
security crisis to the next.
In principle, fashioning Israeli strategic doctrine should never consist of
disjointed or ad hoc calculations. Any purposeful loosening of Israeli nuclear
ambiguity would need to be subtle, nuanced, more-or-less indirect, and visibly
incremental. Contrary to the often parodied views of any such prospective
disclosure that may be found in popular news stories or on television, this
loosening would not have to take the expressly provocative form of openly
forthright or otherwise official Israeli policy pronouncements. Instead, it could
be allowed to “leak out” or “spill out” on its own, thereby allowing a crucial point
to be made without precipitating any immediate sense of crisis or misfortune.
Among other things, formal doctrine, consistent with law, would represent
the vital framework from which any gainfully pragmatic Israeli nuclear policy of
ambiguity or disclosure could most suitably be extrapolated. In all military
institutions and traditions, such doctrine must describe the tactical or operational

BOOKS ON THE DUTY OF MAN AND CITIZEN ACCORDING TO NATURAL LAW 32 (Frank Gardner
Moore, trans., 1927) (1682).
39. The actual security benefits to Israel of any explicit reductions in nuclear secrecy would
remain dependent, more or less, upon Clausewitzian “friction.” This refers to the inherently
unpredictable effects of errors in knowledge and information concerning intra-Israel (IDF/MOD)
strategic uncertainties; on Israeli and Iranian under-estimations or over-estimations of relative
power position; and on the unalterably vast and largely irremediable differences between theories
of deterrence, and enemy intent “as it actually is.” See CLAUSEWITZ, supra note 26.
2021] ISRAELI NUCLEAR DETERRENCE AND 339
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manner in which designated national forces ought to fight in various plausible

combat situations, the prescribed “order of battle,” and all manner of corollary
operations. Appropriately, the literal definition of “doctrine” derives from Middle
English, from the Latin doctrina, which means “teaching, learning, and
instruction.”40
Furthermore, the central importance of codified Israeli military doctrine lies
not only in the particular way it can animate, unify and optimize national military
forces, but also in the expectedly efficient manner it can transmit desired
“messages” to an enemy state, enemy states, sub-state proxies or state-sub-state
“hybrids.”41 Understood in terms of Israel’s strategic nuclear policy, any
indiscriminate, across-the-board ambiguity could prove net-injurious to the
country’s national security. In this regard, it could unwittingly jeopardize certain
protective functions of international law.4 2 This is likely the case because any
truly effective deterrence and defense could sometimes call for a military doctrine
that is at least partially recognizable by adversary states and by certain sub-state
insurgent/terrorist group foes.
In any routine military planning by Israel, having available options for
strategic surprise could prove helpful (if not fully prerequisite) to successful
combat operations. Successful deterrence, however, is another matter entirely. In
order to persuade would-be adversaries not to strike first in these circumstances,
a manifestly complex effort of dissuasion such as projecting too much secrecy
could (at least on occasion) prove counterproductive.
In the matter of Israel and its enemies, both new and historic, optimal military
success must lie in credible deterrence, not in any actual war-fighting.43 Examined
in terms of ancient Chinese military thought offered by Sun-Tzu in The Art of
War, “Supreme excellence consists of breaking the enemy’s resistance without
fighting.” For Israel, there are times when successful deterrence policies could

40. Melyn, “Doctrina” Latin to English Translation, LATIN MEANING (Mar. 3, 2015),
http://latinmeaning.com/doctrina-latin-to-english-translation/) [https://perma.cc/2FEV-VS78].
41. See EHUD EILAM , ISRAEL’S MILITARY DOCTRINE (2018).
42. No state on earth, including Israel, is under any per se legal obligation to renounce access
to nuclear weapons; in certain distinctly residual circumstances, moreover, the actual resort to such
weapons could still be lawful. See generally The Legality of the Threat or Use of Force of Nuclear
Weapons, Advisory Opinion, 1997 I.C.J. (July 8). The final paragraph of this Opinion, concludes,
inter alia:
The threat or use of nuclear weapons would generally be contrary to the rules of
international law applicable in armed conflict, and in particular the principles and rules
of humanitarian law. However, in view of the current state of international law, and of
the elements of fact at its disposal, the Court cannot conclude definitively whether the
threat or use of nuclear weapons would be lawful or unlawful in an extreme
circumstance of self-defense, in which the very survival of a State would be at stake.
43. This was a major conclusion of this author’s Project Daniel Report (2003) to then Prime
Minister Sharon. See Louis R. Beres, Israel’s Strategic Future, NATIV ONLINE (Apr. 2004),
http://www.acpr.org.il/ENGLISH-NATIV/03-ISSUE/daniel-3.htm [https://perma.cc/8WTT-NR8X].
340 INDIANA INT’L & COMP. LAW REVIEW [Vol. 31:329

require the deliberate “loosening” of information that had formerly been tightly
held with this worthy dictum in mind. In essence, such information would
concern Israel’s capabilities, its intentions, or both of these complex qualities
taken together.
Looking to Cold War II, such information would also need to be rendered
compatible with Jerusalem’s preferred and specific superpower alignments. More
than likely, these alignments will still favor ties to Washington over Moscow, but
it is no longer inconceivable that a U.S.-generated incoherence within relevant
American foreign policy arenas could sometimes temper (or perhaps even
reverse) this usual preference.44
Back to basics: strategic truth may be counterintuitive. There are, after all,
foreseeable circumstances wherein ordinary secrecy could be too much secrecy,
thereby undermining any particular country’s national security.
In this connection, we may recall, a popular Cold War I-era movie in which
Dr. Strangelove—an “eccentric” strategic advisor to the American President (and
also the name of the film)—to his horror discovers that the existence of America’s
“doomsday machine” had not been made known in advance to the Soviets. “The
whole point of the doomsday machine is lost,” complains Dr. Strangelove, “if you
keep it a secret.” To have been suitably deterred, the film then instructs, and not
too subtly, that the Soviets ought to have been given sufficient prior warnings of
the “doomsday machine.” This device had been designed to ensure the perceived
automaticity of America’s nuclear retaliatory response. Remembering the
commonly-held strategic posture known as MAD, this response would have been
instantly recognizable to the Kremlin as “massive” and “assuredly destructive.”
It follows from all this, and the more general expectations of the laws of war,
Israel’s nuclear weapons must remain oriented to deterrence ex ante, not to war-
fighting or revenge ex post. As designated instruments of a law-based deterrence
system, nuclear weapons can succeed only in their prolonged non-use. Once they
have been employed for any tangible “battle,” deterrence, by definition, will have
failed.45

44. See Louis R. Beres, Surviving Donald Trump: Israel’s Strategic Options, BESA CENTER
(Feb. 2018), https://besacenter.org/wp-content/uploads/2018/02/144-Monograph-Beres-Surviving-
Donald-Trump-cover-and-text.pdf [https://perma.cc/WKA5-DQMT].
45. There could also be attendant and possibly unprecedented crimes of war. Moreover,
criminal responsibility of leaders under international law is not limited to direct personal action or
limited by official position. On this peremptory principle of “command responsibility,” or
respondeat superior, see generally In re Yamashita, 327 U.S. 1 (1945); The U.N. War Crimes
Comm., The Trial of Wilhelm von Leeb, 12 L. REP. OF TRIALS OF WAR CRIMS. 1 (1949). See also
William Parks, Command Responsibility for War Crimes, 62 MIL L. REV.1 (1973); William
O’Brien, The Law of War, Command Responsibility and Vietnam, 60 GEO. L. J. 605 (1972); U.S.
DEP’T OF ARMY, FIELD MANUAL 6-27, THE COMMANDER’S HANDBOOK ON THE LAW OF LAND
WARFARE (Aug. 2019). The direct individual responsibility of leaders is also unambiguous in view
of the London Agreement, which denies defendants the protection of the act of state defense.
See Agreement for the Prosecution and Punishment of the Major War Criminals of the European
Axis art. 7, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 280.
2021] ISRAELI NUCLEAR DETERRENCE AND 341
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Also worth noting, once nuclear weapons are used, any traditional meanings
of “victory” instantly become moot.46
Cold War I is over, and Israel’s emerging deterrence relationship to a
prospectively nuclear Iran is not reasonably analogous or comparable to the
historic American-Soviet “Balance-of-Terror.”47 Still, there are crucial elements
of Cold War II superpower antagonisms that will necessarily and substantially
impact Israel’s nuclear strategic choices. In other words, Israel should never
construct its own nuclear strategic doctrine and policy apart from various
comparative assessments of U.S.-Russian relations.48
There are certain Cold War I deterrence lessons to be learned and adapted by
the Jewish State during Cold War II. More precisely, any unmodified continuance
of total nuclear ambiguity concerning Israel’s (a) strategic targeting doctrine; (b)
secure basing modes; and (c) capacity to penetrate a designated enemy’s active
air defenses, which could cause a newly-nuclearizing or still-nuclearizing enemy
state (e.g., Iran) to critically underestimate Israel’s retaliatory capacity or resolve.
As a subsidiary but still urgent nuclear concern, Israeli planners will need to
continually assess the capability and intentions of Pakistan, an already-nuclear
Islamic state and one that has openly declared a “nuclear war fighting” concept
of national nuclear deterrence. Returning to the formative lexicon of Cold War
I, this non-Arab Islamic state has already undertaken a formal shift from “mutual
assured destruction” to “nuclear utilization theory.” This represents an overt shift
from mutual assured destruction (“MAD”) to nuclear utilization theory (“NUT”)
in the specialized discourse and parlance of all orthodox nuclear strategic
theory.49 Any such shift, by definition, could have profound legal consequences

46. On “victory” in a nuclear war, see Louis R. Beres, Who is “Victorious?”: Transformed
American Meanings of War and Power, OXFORD UNIV. PRESS BLOG (Apr. 21, 2016), https://blog.
oup.com/2016/04/war-political-victories/ [https://perma.cc/86CM-RGWP]; Louis R. Beres, Seeking
American Victories via Escalation Dominance, ISRAEL DEF. (Mar. 21, 2017), https://www.
israeldefense.co.il/en/node/28931 [https://perma.cc/A7YN-B5PZ].
47. Recalling the Roman Stoic philosopher and statesman, Marcus Cicero said, “For what
can be done against force, without force?” MARCUS CICERO, LETTERS TO HIS FRIENDS (1468).
During the nuclear age, the traditional term, “balance of power” has sometimes been replaced with
a more technologically appropriate “balance of terror.” For the conceptual origins of this historic
replacement, see Albert Wohlstetter, The Delicate Balance of Terror, 37 FOREIGN AFFS. 211-34
(1959).
48. In this connection, Jerusalem must always ensure that it does not enter into any
agreements that might threaten its overall physical survival. Thomas Jefferson, third president of
the United States, wrote about this core obligation as generic for all nations. Writing in his Opinion
on the French Treaties (April 28, 1793), Jefferson opined: “The nation itself, bound necessarily to
whatever it’s preservation and safety require, cannot enter into engagements contrary to its
indispensable obligations.” MERRILL D. PETERSON, THE POLITICAL WRITINGS OF THOMAS
JEFFERSON 115 (1993).
49. Several of this author’‘s earlier books deal expressly with the pertinent distinctions. See
e.g., LOUIS R. BERES, THE MANAGEMENT OF WORLD POWER: A THEORETICAL ANALYSIS (1973);
342 INDIANA INT’L & COMP. LAW REVIEW [Vol. 31:329

concerning both the presumed likelihood of a nuclear conflict (probability) and

the presumed injuriousness of such a conflict (disutility).
Going forward during Cold War II, various uncertainties surrounding the
presumed components of Israel’s nuclear arsenal could lead enemy states to reach
the “wrong” conclusion. In part, this is because Israel’s willingness to make good
on any threatened nuclear retaliation could then be seen, widely perhaps, as
inversely related to weapon system destructiveness. Ironically, if Israel’s nuclear
weapons were sometimes believed to be too destructive, too apocalyptic,50 they
might not credibly deter. In these cases, and more or less unwittingly, such beliefs
would underscore various basic expectations of humanitarian international law
or the law of armed conflict. These are the core expectations of discrimination
(aka distinction), proportionality, and military necessity.
In the future, any continuing Israeli policy of complete ambiguity could cause
an already nuclear enemy state to overestimate the first-strike vulnerability of
Israel’s nuclear forces. In part, at least, this overestimation could be the result of
a too-complete silence concerning measures of protection that had been deployed
to safeguard Israeli nuclear weapons and launch platforms. Such silence, in turn,
could be the product of Israel’s perceived alignments with one or the other
current superpower by any then-relevant regional foe.
A related problem could represent the product of certain Israeli doctrinal
obfuscations regarding the country’s defense potential, a silence that enemy states
could mistakenly take as an indication of inadequate Israeli Ballistic Missile
Defense (“BMD”). To be maximally useful, certain relevant strengths and
capabilities of Arrow3 and other interrelated and multi-layered elements of active
defense would need to be revealed, perhaps in previously unimaginable contours
of operational detail.
Going forward, some aspects of strategic truth—especially in such wholly
unprecedented contextual circumstances—could prove counterintuitive.
The then-prevailing conditions of Cold War II could expect to have specific,
distinctly meaningful impacts upon any such considered revelations.
Furthermore, to best understand the utility and legal content of Israeli
strategic nuclear doctrine and posture, analysts must first clearly identify for

LOUIS R. BERES, APOCALYPSE: NUCLEAR CATASTROPHE IN WORLD POLITICS (2nd ed. 1982); LOUIS
R. BERES, REASON AND REALPOLITICK : US FOREIGN POLICY AND THE WORLD ORDER (1984);
LOUIS R. BERES, MIMICKING SISYPHUS: AMERICA’S COUNTERVAILING NUCLEAR STRATEGY (1983);
LOUIS R. BERES, SECURITY OR ARMAGEDDON: ISRAEL’S NUCLEAR STRATEGY (1986); LOUIS R.
BERES & BARRY R. MCCAFFREY, ISRAEL’S NUCLEAR STRATEGY AND US NATIONAL SECURITY
(2016).
50. The underlying idea here of some palpable apocalypse seems to have been born in ancient
Iran (Persia), specifically, with the Manichaeism of the Zoroastrians. Interestingly, at least one of
these documents, The War of the Sons of Light Against the Sons of Darkness, found in a Qumran
cave, is a comprehensive description of Jewish military tactics and regulations at the end of the
Second Commonwealth. In essence, the “Sons of Light” were expected to prevail in battle against
the “Sons of Darkness” before the “end of days,” and the later fight at Masada was widely
interpreted as an apocalyptic struggle between a saintly few and the wicked many.
2021] ISRAELI NUCLEAR DETERRENCE AND 343
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themselves the various core foundations of Israeli nuclear deterrence. These

foundations concern prospective attackers’ perceptions of Israel’s nuclear
capability, and any selective telegraphing of Israel’s strategic nuclear doctrine
could potentially enhance Israel’s nuclear deterrence posture and thereby support
both peace and international law. It would accomplish this enhancement by
heightening enemy state perceptions of Israel’s capable nuclear forces and by its
announced willingness to use these forces in reprisal for certain designated first-
strike or retaliatory attacks.
To deter an enemy attack, or a post-preemption retaliation against Israel,51
Jerusalem/Tel-Aviv must always prevent a rational aggressor, by the threat of an
unacceptably damaging retaliation or counter-retaliation, from deciding to strike.
Here, Israel’s national security would be sought by convincing the potential
rational attacker (irrational state enemies could, of course, pose an altogether
different and possibly insurmountable problem) that the costs of any considered
attack will always exceed the expected benefits. Assuming that Israel’s state
enemies (1) value self-preservation most highly and (2) choose rationally between
all alternative options, they will necessarily refrain from any attack on an Israel
that is believed both willing and able to deliver an unacceptably destructive
response.
These enemy states might also be deterred by the plausible prospect of a more
limited Israeli attack, one that would be directed only at national leaders. In the
usual parlance adopted by military and intelligence communities, this particular
prospect refers to more-or-less credible threats of “regime targeting.” Whether
credible or incredible, any such threats could be severely problematic in
specifically legal terms.52
Two factors must combine to communicate such potentially essential beliefs.
First, there are two critical components in terms of capability: payload and
delivery system. It must be successfully communicated to any calculating attacker
that Israel’s firepower and available means of delivering that firepower are
invariably capable of inflicting unacceptable levels of destruction. Israel’s
retaliatory or counter-retaliatory forces must always appear sufficiently
invulnerable to enemy first-strikes and aptly elusive to penetrate the prospective
attacker’s active and civil defenses. It may or may not need to be communicated
to a potential attacker that such firepower and delivery vehicles are in any way
superior to those of the relevant adversary.

51. Regarding preemption, the obvious Israeli precedents for any such defensive moves
would be Operation Opera directed against the Osiraq (Iraqi) nuclear reactor on June 7, 1981, and
later (though lesser known) Operation Orchard against Syria on September 6, 2007. In April 2011,
the U.N.’s International Atomic Energy Agency (the “I.A.E.A.”) confirmed that the bombed Syrian
site in the Deir ez-Zoe region of Syria had indeed been a developing nuclear reactor. In this writer’s
judgment, both preemptions were lawful assertions of Israel’s “Begin Doctrine.”
52. Louis R. Beres, Assassination and Targeted Killing: A Timely Jurisprudential Brief,
JEWISH BUS. NEWS (Jan. 30, 2019), https://jewishbusinessnews.com/2019/01/30/assassination-and-
targeted-killing-a-timely-jurisprudential-brief/ [https://perma.cc/QEB7-SY7B].
344 INDIANA INT’L & COMP. LAW REVIEW [Vol. 31:329

Israel’s planners must continuously bear in mind that deterrence is never

about “victory.” Significantly, the capacity to deter may or may not be as great
as the capacity to “win.”53 As a suitable current example, Israeli planners could
think about North Korea and the United States. In this increasingly problematic
dyad of international adversaries, the Americans are superior in all of the usual
expressions of hardware and battle-readiness. However, the North Koreans could
still bring terrible harm to U.S. armed forces and potentially to portions of the
American mainland. This is to say nothing about parallel or corollary damages
that might be visited upon U.S. allies in South Korea or Japan.
Israel’s strategic nuclear forces and doctrine sometimes conclude, rightly or
wrongly, that a first-strike attack or post-preemption reprisal would be cost-
effective. Nevertheless, where relevant, Israeli doctrine made more plainly
obvious to enemy states contemplating an attack—evident in that Israel’s nuclear
assets seemingly met both its indispensable payload and delivery system
objectives—Israel’s nuclear forces could then better serve their existential
security functions.
The second factor of nuclear doctrine for Israel concerns willingness. How
may Israel convince any potential nuclear attackers that it possesses the resolve
to deliver an appropriately destructive retaliation or counter retaliation? Again,
the answer to this question lies largely in doctrine, that is, in Israel’s
demonstrated strength of commitment to carry out such an attack and in the
nuclear ordnance that would presumably be made available to its forces. Here, too
continued ambiguity over nuclear doctrine could wrongfully create the
impression of an unwilling Israel. Conversely, any doctrinal movement toward
some as-yet-undetermined level of disclosure could meaningfully heighten the
impression that Israel was, in fact, willing to follow through on its now explicit
nuclear threats.
There are determinedly persuasive connections between any incrementally
more “open” or disclosed Israeli strategic nuclear doctrine and certain enemy
state perceptions of Israeli nuclear deterrence. One such connection centers on the
expected relationship between prospectively greater openness and the perceived
vulnerability of Israeli strategic nuclear forces to preemptive destruction. Another
such connection concerns the relation between greater openness and the perceived
capacity of Israel’s nuclear forces to penetrate the offending state’s active
defenses reliably.
To be deterred by Israel, a newly-nuclear Iran54 or any other newly nuclear
adversary (i.e., potentially, one of the major Sunni Arab states also worried about

53. See Louis R. Beres, An American President’s Perilous Misunderstanding of War,

Strategy and Survival, JURIST (Jun. 26, 2020, 2:42 PM), https://www.jurist.org/commentary/
2020/06/louis-beres-winning-war/ [https://perma.cc/3FGT-LY7E].
54. See Louis R. Beres & John T. Chain, Could Israel Safely Deter a Nuclear Iran?, THE
ATLANTIC (Aug. 9, 2012), https://www.theatlantic.com/international/archive/2012/08/could-israel-
safely-deter-a-nuclear-iran/260947/ [https://perma.cc/8RMN-8W3B]; Louis R. Beres & John. T.
Chain, Israel and Iran at the Eleventh Hour, OXFORD UNIV. PRESS (Feb. 23, 2012), https://blog.
oup.com/2012/02/israel-iran-nuclear/ [https://perma.cc/8DEV-P7XX].
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Iran) would need to believe that at least a critical number of Israel’s retaliatory
forces would successfully survive any enemy first-strike and that these forces
could not subsequently be stopped from hitting their pre-designated targets in Iran
or elsewhere. Regarding the “presumed survivability” component of such an
adversarial belief, Israel’s reliable sea-basing (submarines) could prove a relevant
case in point.
Carefully articulated, expanding doctrinal openness or partial nuclear
disclosure could represent a distinctly rational option for Israel, at least to the
extent that pertinent enemy states were made appropriately aware of Israel’s
nuclear capabilities. The presumed operational benefits of any such expanding
doctrinal openness would accrue from deliberate flows of information about
various matters of dispersion, multiplication, and hardening of its strategic
nuclear weapon systems and about other technical features of these systems. Most
important, doctrinally controlled and orderly flows of information could serve to
remove any lingering enemy state doubts about Israel’s strategic nuclear force
capabilities and plausible intentions. Left unchallenged, such doubts could
literally and lethally undermine Israeli nuclear deterrence and, correspondingly,
certain war-avoiding elements of pertinent international law.
A key problem in purposefully refining Israeli strategic nuclear policy on
deliberate ambiguity issues has to do with what the Prussian military thinker, Carl
von Clausewitz, famously calls “friction.” No military doctrine can ever fully
anticipate the actual pace of combat activity or, as a corollary, the precise
reactions of individual human commanders under fire. It follows that Israel’s
nuclear doctrine must somehow be encouraged to combine adequate tactical
flexibility with a selective doctrinal openness. To understand how such seemingly
contradictory objectives can be reconciled, Jerusalem and Tel-Aviv now present
a distinctly primary intellectual challenge to Israel’s national command
authority.55
In the end, Israeli planners must think about plausible paths to a nuclear war
that also include relevant risks of inadvertent or accidental nuclear war. It is
entirely possible (even plausible) that risks of any deliberate nuclear war
involving Israel would be minimal, but that the Jewish State might still be
vulnerable to such a war occasioned by a mechanical, electrical, or computer
malfunction on one side or another and by assorted decisional errors in related
reasoning (e.g., miscalculation).

RECOMMENDATION
To properly assess the different but intersecting risks between a deliberate
nuclear war and an inadvertent or accidental nuclear war should now be regarded
in Jerusalem/Tel Aviv as an overriding obligation. These risks, including various

55. See GUILLAUME APOLLINAIRE, THE NEW SPIRIT AND THE POETS (1917) (“It must not be
forgotten . . . that it is perhaps more dangerous for a nation to allow itself to be conquered
intellectually than by arms.”).
346 INDIANA INT’L & COMP. LAW REVIEW [Vol. 31:329

corollary legal implications, could exist independently of one another or could be

impacted in various ways by Cold War II alignments. Moreover, like the much
larger United States, Israel must continuously prepare to deal with issues of
cyber-attack and cyber-war. Such bewildering issues should now be considered
together with the unpredictably destabilizing advent of “digital mercenaries.”
There is one more core conceptual distinction that warrants mention at this
concluding point of assessment. This distinction references the difference
between inadvertent and accidental nuclear war. By definition, any accidental
nuclear war would need to be inadvertent. Conversely, however, an inadvertent
nuclear war would not necessarily be accidental. False warnings, for example,
which could be generated by various types of technical malfunction or sparked
by third-party hacking/digital mercenary interference—that might or might not
have something to do with the dynamics of Cold War II—would not be included
under causes of an unintentional or inadvertent nuclear war. Instead, they would
represent cautionary narratives of an accidental nuclear war.
Most critical among the plausible causes of any inadvertent nuclear war
would be errors in calculation by one or both (or several) sides. The most blatant
example would involve misjudgments of either enemy intent or enemy capacity
that would emerge and propagate as any particular crisis would escalate. Such
consequential misjudgments could stem from an understandably amplified desire
by one or several parties to achieve “escalation dominance.”
As always, in any such projected crisis condition, all rational sides would
likely strive for calculable advantage without too severely risking total or near-
total destruction. Where one or several adversaries would not be rational, all of
the usual deterrence “bets” would immediately be “off.” Where one or several
sides would not be identified as rational by Israel, Jerusalem would then need to
input various unorthodox sorts of security options, including some that could
derive in whole or in part from certain prevailing Cold War II alignments.
Still, other causes of an inadvertent nuclear war involving Israel could
include (1) flawed interpretations of computer-generated nuclear attack warnings;
(2) an unequal willingness among adversaries to risk catastrophic war; (3)
overconfidence in deterrence and defense capabilities on one or several sides
(including Israel); (4) adversarial regime changes; (5) outright revolution or coup
d’état among adversaries; and (6) poorly-conceived pre-delegations of nuclear
launch authority among apparent foes.
Markedly severe overconfidence problems could be aggravated by successful
tests of a nation’s missile defense operations, whether by Israel itself or by any
of its relevant adversaries. These problems could also be encouraged by too-
optimistic assessments of Cold War II alliance guarantees. An example might be
an intra-crisis judgment in Jerusalem that Washington stands firmly behind its
every move during an ongoing crisis, up to and including certain forms of reprisal
that are more plausibly imagined than genuine.
Reciprocally, an enemy of Israel could similarly mistake the seriousness and
commitment of its own preferred Cold War II guarantor (whether Russian or
American).
A potential source of inadvertent nuclear war during Cold War II could be the
“backfire” effect from strategies of “pretended irrationality.” A rational enemy
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of Israel that had managed to convince Jerusalem of its own decisional

irrationality could spark an otherwise avoidable Israeli military preemption.
Conversely, an enemy leadership that had begun to take seriously any hint of
decisional irrationality in Jerusalem could then be frightened into striking first.
Regarding this second scenario, it should also be remembered that many years
back, General Moshe Dayan, then Israel’s Minister of Defense, had argued that
“Israel must be seen as a mad dog, too dangerous to bother.”
Nightmare! According to the etymologists, the root is niht mare or niht
maere, the demon of the night. Dr. Johnson’s dictionary says this corresponds to
Nordic mythology—which regarded nightmares as the product of demons. This
would make it a play on, or a translation of, the Greek ephialtes or the Latin
incubus. In any event, in all such interpretations of “nightmare,” the non-rational
idea of demonic origin is central. The demons of nuclear strategy and nuclear war
would take very different forms. For the most part, their mien is not frightful but
(hopefully) “rational” and ordinary. If they are thought to be sinister, it is not
because their national leaders necessarily crave wanton bloodshed and carnage,
but because they seek maximum safety for their own nations amid a growing
cacophony of global chaos.

CONCLUSION
While the specific principle of “military necessity” has been defined
authoritatively as follows: “Only that degree and kind of force, not otherwise
prohibited by the law of armed conflict, required for the partial or complete
submission of the enemy with a minimum expenditure of time, life, and physical
resources may be applied.”56 The state of nations has always been in the “state of
nature,”57 at least since the seventeenth century and the Peace of Westphalia
(1648), current conditions of nuclear capacity and worldwide anarchy portend a
uniquely dangerous amalgam of law-violating circumstances.
Among other things, the reasons for such dire portents lie in the
indispensability of rational decision-making to operationally viable nuclear
deterrence. In the subtly interpenetrating fact, rational decision-making may
sometimes become subject to corrosive modifications or complete disappearance.
Although not readily discernible or predictable, these significant impacts upon
enemy rationality could be derived from the ever-changing dynamics of Cold
War II. A pertinent future example of what is being described here would be any
strategic nuclear decisions in Tehran based in whole or in part upon that enemy
country’s particular interpretations or assessments of Cold War II.

56. See U.S. DEP’T OF NAVY, THE COMMANDER’S HANDBOOK ON THE LAW OF NAVAL
OPERATIONS, NWP 1-14M 5-1 (Oct. 1995).
57. See HOBBES, supra note 27 (“But though there had never been any time wherein
particular men were in a condition of war one against another, yet in all times, Kings and Persons
of Sovereign Authority, because of their Independency, are in continual jealousies, and in the state
and posture of Gladiators, having their weapons pointing and their eyes fixed on one another.”).
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With still largely unpredictable enlargements of Cold War II, Israeli decision-
makers must systematically prepare for progressively “rough seas.” To avoid
being pushed “out to sea” altogether, they will first have to prepare capably for
unprecedented levels of world-systemic upheaval and transformation and,
correspondingly, for seemingly unfathomable levels of decisional complexity.
Moreover, in some cases, these decision-maker calculations will even have to
assume varying levels of enemy irrationality that could obtain among state, sub-
state, or “hybridized” adversaries.
Of necessity, for Israel, a country smaller than America’s Lake Michigan,
ultimate survival tasks will be profoundly intellectual and require utterly durable
victories of “mind over mind.”58 These analytic victories, in turn, will depend
upon prior capacities to fully understand the many-sided elements of Cold War
II. In principle, such prior capacities could sometimes lead Israel to consider
certain preemption options seriously. Any final decisions regarding such residual
options would be most properly based upon (a) expectations of enemy rationality
or irrationality; (b) expected likelihood of enemy first-strikes; (c) expected costs
or disutilities of enemy first-strikes; (d) expected schedule of enemy nuclear (or
biological) weapons deployments; (e) expected efficiencies of enemy active
defenses over time; (f) expected efficiencies of Israel’s active defenses over time;
(g) expected efficiencies of Israeli hard-target counterforce operations over time;
(h) expected reactions of unaffected regional enemies; and (i) expected US,
Russian and world community reactions to the Israeli preemptions.59
At some point, in Jerusalem and Tel Aviv, there will be “higher-waves”
pushing the Israeli ship of state “out to sea,” but these “oceanic” forces could
remain subject to purposeful national and law-based control. Among the many
qualities examined above, what will be most critically required of Israel is a
determined national willingness to face the bewildering complexities of world

58. FRANK EZRA ADCOCK, THE GREEK AND MACEDONIAN ART OF WAR (1957).
59. For early scholarly commentary by this author on anticipatory self-defense under
international law, with special reference to Israel, see generally Louis R. Beres & Yoash Tsiddon
Chatto, Reconsidering Israel’s Destruction of Iraq’s Osiraq Nuclear Reactor, 9 TEMPLE J. INT’L
& COMP. L. 437, 437-49 (1995); Louis R. Beres, Preserving the Third Temple: Israel’s Right of
Anticipatory Self-Defense Under International Law, 26 V.U. J. TRANSNAT . L. 111, 111-48 (1993);
Louis R. Beres, After the Gulf War: Israel, Preemption and Anticipatory Self-Defense, 13 HOUS .
J. INT ’L. L. 259, 259-80 (1991); Louis R. Beres, Striking First: Israel’s Post Gulf War Options
Under International Law, 14 LOY. L.A. J. INT ’L & COMP. L. 1-24 (Nov. 1991); Louis R. Beres,
Israel and Anticipatory Self-Defense, 8 ARIZ J. INT’L. & COMP. L. 89, 89-99 (1991); Louis R. Beres,
After the SCUD Attacks: Israel, Palestine, and Anticipatory Self-Defense, 6 EMORY INT ’L. L. REV.
71, 71-104 (1992). For an examination of assassination as a permissible form of anticipatory self-
defense by Israel, see Louis R. Beres, On Assassination as Anticipatory Self-Defense: The Case of
Israel, 20 HOFSTRA L. REV. 321, 321-40 (1991). For more general assessments of assassination as
anticipatory self-defense under international law by this author, see Louis R. Beres, The
Permissibility of State-Sponsored Assassination During Peace and War, 5 Temple J. INT ’L &
COMP. L. 231, 231-49 (1991); Louis R. Beres, Victims and Executioners: Atrocity, Assassination
and International Law, 7 CAM REV. INT ’L AFF. 1, 1-11 (1993).
2021] ISRAELI NUCLEAR DETERRENCE AND 349
INTERNATIONAL LAW

politics with more than just a perfunctory nod to Cold War II60 and/or to its
subsidiary or corollary impacts. Looking ahead to increasingly complex elements
of international relations and international law, including the largely
unpredictable factor of widening disease epidemic, this continuously resurrecting
expression of superpower bipolarity will incrementally define the systemic
context within which Israel’s evolving nuclear strategy must assume its
characteristic form.
In shaping this all-important strategy, Israel must strive systematically to
consider “many things” but also to understand these singular factors as
components or constituent parts of “one big thing.” In matters that are expressly
life or death, to be a “hedgehog” rather than a “fox,” Israel has a new and
unforeseen opportunity. I.e., to approach the continuing COVID-19 pandemic as
a valuable source of expanded international cooperation61 and not just another
regrettable focal point of belligerent nationalism.62 Indeed, though initially, any
such suggestion will be greeted with derision or even execration, nothing could
eventually prove to be more realistic.63
In the final analysis, all human beings—as this current COVID-19 “plague”
makes evident—are creatures of biology. To draw upon this universal
commonality as “Higher Law”64 could allow Israel to transform the proliferating

60. A long-studied passage in The Advancement of Learning by Francis Bacon explains that
earlier Scholastics were like spiders, weaving webs out of their own heads without any
consideration of surrounding facts. FRANCIS BACON, THE ADVANCEMENT OF LEARNING (1605).
While these webs were inherently admirable on account of their workmanship and “fineness of
thread,” they were nonetheless lacking in any true explanatory substance. Id. (I, iv., 5.) Presently,
in explaining Israel’s nuclear doctrine amid historical structural anarchy, it is important to construct
dialectical arguments upon well-reasoned analytic foundations, and not on any diaphanous
constructions of modern-day Scholastics.
61. See Louis R. Beres, Empathy and Survival in a Time of Plague, JURIST (Apr. 21, 2020,
1:05 AM), https://www.jurist.org/commentary/2020/04/louis-beres-trump-empathy/ [https://perma.
cc/DFJ9-A6SC].
62. Opting for such a misconceived focal point; i.e., for endlessly corrosive and competitive
nationalism, has been the conspicuous policy of US President Donald J. Trump. His decision to
detach America from the World Health Organization and remain committed to fully zero-sum
conceptions of world politics has contributed mightily to America’s grievously bad coronavirus
outcomes.
63. Or “more law-enforcing,” one might add here. See EMMERICH DE VATTEL, THE LAW OF
NATIONS (1758) (“The first general law, which is to be found in the very end of the society of
Nations, is that each Nation should contribute as far as it can to the happiness and advancement of
other Nations.”). The statement is not intended by the eighteenth century Swiss jurist to be a sign
of naive idealism or charitable disposition, but rather as a pragmatic path to maximizing a
commendable general interest.
64. Under international law, the idea of a Higher Law—drawn originally from the ancient
Greeks and ancient Hebrews—is contained, inter alia, within the principle of jus cogens or
peremptory norms. In the language of pertinent Vienna Convention on the Law of Treaties art. 53:
350 INDIANA INT’L & COMP. LAW REVIEW [Vol. 31:329

horrors of disease into blessings of reconciliation and an expanded legal

commitment to Reason.65 Perhaps because we are speaking expressly of Israel,
it is worth recalling the following passage from Talmud, which is itself a
component of a more conspicuously universalized Higher Law: “The dust from
which the first person was made was gathered in all four corners of the earth.”66

A peremptory norm of general international law . . . is a norm accepted and recognized

by the international community of States as a whole, as a norm from which no
derogation is permitted, and which can be modified only by a subsequent norm of
general international law having the same character.
Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, 8 I.L.M. 679
(entered into force Jan. 27, 1980).
65. The critical importance of Reason to all legal judgment was prefigured in ancient Israel,
which prominently accommodated the core concept within its special system of revealed law.
Jewish theory of law, insofar as it displays the evident markings of a foundational Higher Law,
offers a transcending order revealed by the divine word as interpreted by human reason. In the
words of ECCLESIASTICUS 32:23, 37:16, and 37:14: “Let reason go before every enterprise and
counsel before any action . . . And let the counsel of thine own heart stand . . . For a man’s mind
is sometimes wont to tell him more than seven watchmen that sit above in a high tower.”
66. The most fundamental principle of Jewish Law is that the revealed will of God is the only
proper source of justice. In the derivative Talmudic position, “Whatever a competent scholar will
yet derive from the Law, that was already given to Moses on Mount Sinai.” See JERUSALEM
TALMUD MEGILLAH IV, 74d.