In my just-published book "The Preventive State," I make the following case for a preemptive military strike against Iran’s nascent nuclear arsenal:
"If [diplomacy] fails and if it becomes likely that Iran is about to cross the threshold into making a deliverable nuclear weapon, the pressure on Israel to act, with or without the assistance and/or approval of the United States, will increase considerably . . .
"No democracy can afford to wait until such a threat against its civilian population is imminent. Both Israel and the United States should have the right under international law to protect their civilians and soldier from a threatened nuclear holocaust, and that right must include — if that is the only realistic option — preemptive military action of the sort taken by Israel against the Iraqi nuclear reactor at Osirak in 1981, especially if such action can again be taken without an unreasonable number of civilian casualties."
International law authorizes preemptive military action when reasonably necessary to prevent nuclear attacks on civilian populations.
Even if the number of likely casualties on both sides is high in the current war between Israel and Iran, there may be a cost-benefit case for preventive military action, because the cost of not taking such action may be far greater.
In some respects, Israel’s recent attack can be justified as reactive rather than preemptive of preventive. It was a legitimate response to Iran’s direct missile attacks during this past year, as well as its indirect attacks through its surrogates in Yemen, Lebanon, and Gaza.
In any event, preemptive action was necessary.
A prime example of the cost of the false negative of not taking preventive military action is provided by not-so-distant history.
In the mid-1930s, following Adolf Hitler's rise to power, he began building a military machine in violation of the Versailles Treaty, Britain, and France.
Those nations were strong militarily but war weary. They could have taken preventive military action against a still weak, but war hungry, Germany.
Joseph Goebbels, Hitler's propaganda minister, was surprised "they didn’t do it" — until it was too late. Tens of millions of innocent people died as a result of this "false negative" failure to act.
Had Israel failed to act against Iran by last week, such a "false negative" could have resulted in millions of deaths from a nuclear armed fanatical regime, that has pledged to destroy "the Zionist devil."
We'll never know for certain what harms Israel’s preemptive action may have prevented, because history is blind to the predictive future.
Had Great Britain and France decided to take preventive military action in the mid-1930s, and done so successfully, no one would ever know what was prevented.
If a leader, say Britain's Winston Churchill, had been able to act on his fear that Hitler would kill tens of millions of people unless he was stopped at that time by preventive military action, the leader would have been disbelieved, even mocked, as
George W. Bush was for taking military action against Iraq’s suspected nuclear arsenal in 2003.
Had Great Britain and France engaged in preventive military action in the 1930s that resulted in say, the deaths of 10,000 German and 5,000 British and French soldiers and civilians, the leaders who undertook such a military adventure would been condemned as warmongers, because no one would ever know how many deaths they prevented by the sacrifice of those 15,000 lives.
Ignorance of the hypothetical future is often the reason for failure to act in the present.
Had Great Britian and France acted, everyone would know about the 15,000 deaths their action caused, while no one would know about the tens of millions of lives their actions saved.
We know about the tens of millions of deaths these leaders indirectly caused — or at least made possible — by not taking preventive military action, but we don’t accuse them of actually causing these deaths, because inaction that indirectly leads to death is not generally blamed as much as action that directly and visibly produces a body count.
That is the dilemma of invisible false negatives in failing to take preventive military action.
A preventive attack would not have been cost free, and it was not undertaken, because the British and French did not accurately predict and assess the cost of not acting.
The result was a catastrophic false negative.
Benjamin Netanyahu has been faulted — largely by left-wing Democrats and radicals — on the grounds that he acted too quickly, failing to wait for the outcome of talks which might have resulted in a diplomatic resolution.
But a satisfactory deal that would have absolutely assured that Iran would never obtain nuclear weapons was never likely, because Iran insisted on its "right" to enrich, and enrichment is a path to weaponization.
It seems clear that Iran was using the negotiations to buy time to move toward a nuclear arsenal. Its goal was to get close enough to weaponization so as to make it too risky to attack its radioactive facilities.
So, Netanyahu was right, as a matter of law, morality, and diplomacy, to do what he did, when he did it.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law Emeritus at Harvard Law School and the author most recently of "The Case for Color Blind Equality in the Age of Identity Politics," and "The Case for Vaccine Mandates," Hot Books (2021). Read more of Alan Dershowitz''s reports — Here.
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