Analysis from Israel

Two news items over the past two weeks provide timely reminders of why Israel’s willingness to take military action in its own neighborhood makes it an unparalleled strategic asset for the West – including those Westerners who deplore military action and prefer to rely exclusively on diplomacy. At first glance, neither report has anything to do with Israel. Yet both underscore its vital role in Western security.

The first was a New York Times report on the Islamic State’s efforts to obtain red mercury – a material that, “when detonated in combination with conventional high explosives,” is rumored to “create the city-flattening blast of a nuclear bomb.” Proliferation experts all say red mercury is a hoax, but it’s a hoax widely believed in many corners of the globe. The terrorist group was therefore willing to pay ‘‘whatever was asked’’ to procure it, as one Islamic State official told the arms dealer he tasked with the mission. Nor was this a passing fancy: The official “kept inquiring about red mercury for more than a year … pressing for results” until he disappeared (presumably because he was killed).

What the report shows is that while red mercury may be a hoax, the Islamic State’s efforts to obtain weapons of mass destruction are in deadly earnest. And had it not been for Israel, the group might well have succeeded – because its Syrian conquests include Al-Kibar, site of the secret nuclear facility Israel destroyed just before it went live in 2007. Granted, the Syrian government would presumably have invested more in Al-Kibar’s defense if the reactor hadn’t been destroyed, but it has lost many areas it genuinely strove to defend. Thus the possibility that Islamic State could have captured the facility, and thereby acquired raw material for a nuclear bomb, is far from unrealistic.

Obviously, nobody foresaw Syria’s collapse in 2007. But that’s precisely the point: Though Western countries presumably would have taken military action to keep the world’s most vicious terrorist group from obtaining nuclear weapons, none of them was willing to do so merely to prevent a vicious dictator from obtaining nukes; the West preferred negotiations with Damascus. And had Israel bowed to this preference, it would have been too late for military action by the time Islamic State rolled in. You can’t bomb a live reactor.

But Israel wasn’t willing to risk nuclear weapons in Syrian President Bashar Assad’s hands, so it acted when other Western countries wouldn’t. And therefore, the nightmare scenario of Islamic State with nuclear weapons was prevented.

The second news item was the International Atomic Energy Agency’s report on the history of Iran’s nuclear program, which gives ammunition to both sides in the debate over the nuclear deal with Iran. On one hand, the agency found no evidence that Iran’s work on nuclear weapons continued after 2009, which could indicate that it really ended – though only if you ignore the nontrivial possibility that Tehran simply managed to deceive the IAEA. On the other hand, the agency’s conclusion that Iran did work on weaponization prior to 2009 indicates that it lied about its program in the past, will probably lie in the future and may already have a shorter breakout time to a bomb than the agreement’s drafters assumed, making the deal’s ostensible safeguards less safe. But whichever view you favor, it underscores Israel’s strategic importance.

Though Israel vehemently opposed the agreement, supporters nevertheless owe it a vote of thanks, because the deal could never have been achieved without Israel’s proven record of willingness to use force. First, as I’ve explained before, the main impetus for the Western sanctions that ultimately brought Iran to the negotiating table was fear that Israel would bomb Iran if the West didn’t impose such sanctions; a senior French official stated this explicitly. In other words, absent a credible Israeli threat to bomb, there would have been no stringent sanctions, and hence, no deal.

But Israel was also crucial to obtaining the concession that experts consider one of the deal’s main achievements: the planned redesign of Iran’s heavy-water reactor at Arak so it won’t be able to produce plutonium. True, none of these experts actually gave Israel credit, but consider the following facts: First, Israel has never allowed a reactor capable of producing nuclear material to go live anywhere in the Mideast; it bombed such reactors in both Iraq and Syria shortly before they went online. Second, though Israeli defense officials were divided over whether Iran’s nuclear program was already advanced enough to warrant attacking despite Washington’s strident opposition, they all agreed Israel should attack if absolutely necessary to keep Iran from obtaining the bomb. Third, a plutonium-producing reactor can’t be bombed once it’s online, so preventing it from going online would have been absolutely necessary to preclude Iran from getting the bomb.

In other words, there’s no chance Israel would have let that reactor go live, and Iran almost certainly knew it; indeed, its own Intelligence Ministry recommended negotiations with the West explicitly to prevent the threat of a “Zionist” attack. Tehran was prepared to negotiate away that path to the bomb because it knew the Arak reactor was a dead end anyway.

So where does that leave opponents of the deal? For them, the lesson is even more obvious: That’s what happens when Israel capitulates to intense Western pressure and doesn’t play its usual role as the West’s forward defense. Nobody else will do the job, so you’re stuck hoping a dubious deal with Iran works better than the one with North Korea did – or else that Israel can somehow still take action before Iran cheats its way to the bomb.

Israel’s primary goal in taking military action is always to protect itself. But in protecting itself, it often ends up protecting the West, and in failing to protect itself, it often puts the rest of the West at risk. It’s too early to say which of those will prove true with regard to Iran. But it’s definitely past time for the West to say “thank you” to Israel for keeping Islamic State from getting the bomb.

Originally published in Commentary on December 4, 2015

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The International Criminal Court’s fundamental flaw

In my last column, I noted in passing that the International Criminal Court’s blatant anti-Israel bias is merely a symptom of a more fundamental flaw. That isn’t self-evident; court supporters would doubtless argue, just as many people do about the United Nations, that while the court’s anti-Israel bias is regrettable, it’s an isolated flaw that doesn’t outweigh the benefit of ending impunity for atrocities.

What convinced me both that the ICC is unredeemable and that the impunity problem has a better solution was actually a book by one of the court’s ardent supporters—Philippe Sands, a law professor and international lawyer who has worked on ICC cases. In East West Street, Sands traces the development of two key concepts in international law—crimes against humanity and genocide—to their respective culminations in the Nuremberg Trials of 1945 and the Genocide Convention of 1948. But for me, the real eye-opener was his description of the international wrangling that preceded the Nuremberg Trials.

Nuremberg is sometimes derided as victor’s justice. And in one sense, it obviously was: Four of the victors of World War II—America, Britain, Russia and France—decided to put senior officials of their vanquished foe on trial. But what was striking about Nuremberg was the massive degree of international concord required to hold those trials. Lawyers representing several very different legal systems and several very different systems of government nevertheless had to agree on every word and even every comma in the indictments. And since those lawyers were acting on their governments’ behalf, political approval by all four governments was also needed.

In contrast, the ICC needs no international buy-in at all to pursue a case. Granted, its prosecutors and judges come from many different countries, but they represent neither their home governments nor their home legal systems. Politically, they represent nobody but themselves. Legally, they represent one particular interpretation of international law—an interpretation popular with academics and “human rights” organizations, but less so with national governments.

At first glance, both of the above may sound like pluses. Prosecutorial and judicial independence are generally good things, whereas many governments and legal systems leave much to be desired when it comes to protecting human rights.

But the ICC’s version of prosecutorial and judicial independence is very different from the version found in most democracies because the latter is not completely unconstrained. In democracies, prosecutors and judges are constrained first of all by democratically enacted legislation, and usually by democratically enacted constitutions as well. They’re also constrained by the fact that they, too, are citizens of their country, and therefore share concerns important to most of their countrymen—for instance, national self-defense—but unimportant to judges and prosecutors from other countries (which those at the ICC almost always will be).

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