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(anti)Social Engineer's avatar

I think this question doubly doesn't matter because it's not actually a question of international law as such but rather a pseudo-legalistic framing on what is actually a moral and prudential question: should Israel have attacked Iran's nuclear sites, rather than can Israel do so under international law. Preemption and prevention are questions of jus ad bellum or "right to war." Iran and Israel were already at war on June 12/13. That threshold had already been crossed.

The war between Israel and Iran began, arguably, On October 8, 2023 when Hezbollah joined in the attacks in Israel. There is, as yet, no hard evidence Iran knew what Hamas was planning on October 7th but they certainly had a hand in Hezbollah's subsequent involvement, an act of war to which Israel, at least arguably, had a right to respond. One can debate the prudence of escalation by directly striking Iran when it is acting through proxies but even that argument fell by the wayside after Iran attacked Israel from its own soil on October 1 of last year. The two states have very clearly been in a state of war since then, at least. Thus, the question of preemption vs prevention, which is fundamentally a jus ad bellum question, does not come into play here. It is merely an attempt to lend a veneer of legalistic credibility to an argument over whether Israel should have taken this particular action in a war it was already engaged in.

If we take international law seriously at all then we are in the realm of jus in bello, or the 'law of war' where the proper questions to ask are about military necessity, distinction, proportionality etc. These too are terms of art that often get abused in public discourse to lend a false sense of legal credibility to what are really moral and prudential arguments, but I digress.... I think we need to acknowledge that the answers to questions like this can't always turn on the minutiae of some minor point of law like the distinction between prevention and preemption. In the Wisdom of Crowds tradition, we need to dig deeper and interrogate first principles rather than appealing to misapplied legal frameworks that (at least) a significant portion of WoC doesn't believe in anyway.

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George Scialabba's avatar

Before breezily dismissing international law, it would be nice if. you demonstrated some awareness of its woeful history. There was no preening in 1945 when the UN Charter was formulated. It derived from a very sober understanding that the anarchic great-power system that had nearly destroyed Europe twice, along with much of Asia, was simply too irrational and dangerous to be allowed to persist, especially in a world of nuclear weapons. The resulting Charter was very sensible and efficient, though fatally flawed from the outset by the unwillingness of the great powers to give up their veto in the Security Council, to allow their crimes to be referred to the Council for debate and judgment, or to abide by resolutions of the General Assembly (even, in the case of the US and Israel, unanimous ones). As Soviet, American, and Israeli crimes mounted in utter indifference to international condemnation, hopes for a law-abiding world -- always stronger among the weak, for obvious reasons -- guttered out. The last stage of the process is First World intellectuals professing contempt for the very idea of a world of equals under law, in apparent ignorance of what destroyed the possibility.

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