A Mutual Defense Treaty With the United States—A Complicated Proposition for Israel

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Amidst the chaos of U.S. and Israeli politics, it may be difficult to remember that less than four weeks ago President Trump tweeted that he had reached an agreement with Prime Minister Benjamin Netanyahu to discuss a mutual defense treaty between the United States and Israel. The idea of such a treaty has come up time and again over the years. The U.S. has primarily dangled the treaty as an incentive for Israel to agree to peace agreements with other entities in the region, which would entail security risks for Israel. The prospect of a treaty is an important issue, and one worthy of serious public debate and not just superficial conversations as a part of election campaigns in Israel and the U.S.

Supporters of such a treaty claim that a public and legal commitment from the United States to come to Israel’s defense in the case of an attack will bolster Israel’s capacity for deterrence. Opponents of the treaty, however, fear that it would constrain Israel’s freedom of action by requiring it to coordinate all its military activities with the United States and by perhaps even compelling Israel to provide forces for U.S. military operations in other parts of the world.

Yet, a closer look at the issue reveals that it is more complex than meets the eye: A mutual defense treaty is not a straightforward “off-the-shelf” product with a specific predefined form. Like any other international treaty, it is the result of an agreement between two or more countries, which, subject to binding international norms such as the ban on international aggression, have the freedom to shape it according to their interests. Thus, weighing the benefits to Israel of a hypothetical U.S.-Israel agreement is complicated. In reality, the value of a U.S.-Israel treaty for Israelis will come down to the particular details of the treaty. A closer examination of certain aspects of the defense treaties to which the United States has already committed offers some helpful lessons.

The United States’s most important and well-known defense treaty established NATO (the North Atlantic Treaty Organization), which today has 29 member countries. The North Atlantic Treaty’s articles include a provision that would likely be comforting to those Israelis worried that a mutual defense treaty with the U.S. would lead to Israeli forces being sucked into American conflicts across the world. Per Articles 5 and 6, the treaty’s scope is limited to Europe (and Turkish territory in Asia) and North America. Any attack on a NATO member country in these areas will require the others to come to its aid. A treaty between Israel and the United States could replicate this model and be limited in scope to a particular geographic area, which would allay fears of Israel Defense Forces (IDF) soldiers being sent to Afghanistan and other places where U.S. forces are engaged. In theory, a treaty could also be limited to specific threats—for example, attacks from Iran but not from Hamas—though I am not aware of any precedents for such an arrangement.

However, while a well-drafted treaty could limit the operations for which Israel would be obligated to assist its American partners, it is not clear whether creating restrictions to particular regions or threats would preserve Israel’s freedom of action and autonomy in its own operations. Mutual defense treaties usually contain clauses mandating coordination among the parties to the treaty. Article 4 of the North Atlantic Treaty, for example, states that the parties to the treaty “will consult together whenever, in the opinion of any of them, the territorial integrity, political independence or security of any of the Parties is threatened.” The reality of modern conflict is that fighting frequently spills out of the geographic zone where the first shot is fired and quickly implicates a wide collection of actors. This makes circumscribing the boundaries of coordination requirements in a mutual defense treaty quite difficult.

We see this problem in the wording of Article 4, which leaves unclear whether the requirement to consult is restricted to the geographic areas in which the treaty applies. In reality, events in regions far beyond NATO’s mutual defense boundaries might “threaten” the “territorial integrity, political independence or security” of NATO members. For example, should Turkey have consulted with other European NATO partners before attacking Kurdish forces in Syria because a more powerful Islamic State (a possible result of Turkey’s assault on the Kurds) would threaten the “security” of countries in Western Europe?

The same dynamic could play out in conflicts involving Israel. For example, a military action by Israel against Hezbollah in Lebanon may inflict casualties on the Iranian Revolutionary Guard Corps and draw Iranian retaliation. Even if a U.S.-Israel treaty were to be limited to threats from Iran, it would make sense for the United States to demand coordination with Israel for any operation the Israelis undertake against Iran’s allies in Lebanon. The requirement to consult does not obligate the country under attack to accept its ally’s recommendation, but acting against this recommendation might well undermine its ally’s commitment to extending aid. So, a U.S.-Israel treaty might impose a significant limit on Israel’s functional operational autonomy.

Also often overlooked is the fact that defense treaties do not always guarantee significant military aid in the event of an attack. Again, the North Atlantic Treaty offers an instructive example of this dynamic. Article 5 of the treaty states that member states are to view an attack on one of them as an attack against all and are to agree that, in such a situation, each member state will assist the attacked country by taking “such action as it deems necessary, including the use of armed force.” The “such action it deems as necessary” wording represents a compromise arrived at because the United States was unwilling, in part due to internal constitutional considerations, to sign the treaty if it required the “automatic” use of military force in response to the attack on an allied nation. If a treaty allows signatories to choose not to extend an offer to use military force in response to an attack, then what is the treaty’s real value? Of course, it is possible to formulate clauses that are more concrete and more binding, but it is not at all certain that the United States would agree to them.

Even if the articles of a U.S.-Israel treaty were favorable to Israel, there is still one inherent vulnerability to mutual defense treaties that Israelis should keep in mind: the necessary reliance of such treaties on political goodwill. Moving beyond NATO, the 1979 demise of a U.S. bilateral mutual defense treaty with Taiwan demonstrates this problem. For more than 20 years, the U.S. maintained a treaty agreement with Taiwan, but the Carter administration unilaterally terminated the accord after the U.S. restored diplomatic relations with China. It is theoretically possible for a treaty to place limitations in advance on the parties’ ability to unilaterally withdraw from the agreement. Including a condition requiring considerable advance notice before terminating the treaty could help the other party to adjust and preserve its deterrence by other means. But the United States’s termination of the treaty with Taiwan is a reminder of the fact that defense treaties, despite representing a legal commitment, offer security only as long as there is sufficient political will to uphold them. And, of course, the reverse is also true: If the political will is there, assistance can be provided even without the existence of a formal defense treaty—as demonstrated by the extensive military aid given to Israel by the United States today. But, the Taiwan precedent offers a warning that any U.S.-Israel treaty would not necessarily be a stable long-term guarantor of American military support.

In light of these examples, instead of asking whether a mutual defense treaty would be categorically good or bad for Israel, it would be better to focus on the specific elements of such a treaty—the territory and threats to which it will apply, the requirements for prior consultation, and the level of mandatory assistance. To the extent that it would be possible to come close in negotiations with the United States to drafting a treaty that would provide Israel with the greatest possible benefit while minimizing the restrictions on its freedom of action, and perhaps also limiting the possibility of unilateral termination of the treaty, signing such a treaty could become an important pillar in ensuring Israel’s security.

The article was published on Lawfare.