A NEW STANDARD FOR PREEMPTIVE MILITARY ACTION AGAINST WMD THREATS

Abstract

International law clearly requires an imminent threat of attack as a justification for the preemptive use of military force. However, the standard definition of an imminent threat was derived centuries before the development of nuclear, chemical, or biological weapons or ballistic missiles and other delivery systems that can reach their targets in a matter of minutes. Any use of force to alleviate threats posed by weapons of mass destruction (WMD) prior to tactical warning of the actual launch of such weapons falls into the legally and ethically controversial category of “anticipatory self-defense,” leaving decision makers potentially liable to prosecution for war crimes. Effective and ethical enforcement of nonproliferation therefore demands a standard for imminence of threat broad enough to allow military action as a last resort but sufficiently restrictive to prohibit indiscriminate action against suspected WMD programs. Following a critical review of selected literature and cases on preemption, the author proposes a new standard for preemptive military action: the existence of operational WMD, or a clandestine program to develop WMD, in contravention of international law. The author discusses the implications of this new proposed standard, which at the time of writing would permit preemptive attack against WMD-armed terrorist groups but prohibit it against all states except Iran and possibly North Korea.

Keywords:

• Weapons of mass destruction
• preemption
• international law
• international ethics

Notes

1. Kennedy's speech on the Cuban Missile Crisis, quoted in Theodore C. Sorensen, Kennedy (New York: Bantam, 1966), p. 789. Sorenson writes that Kennedy drafted that wording himself.

2. “The National Security Strategy of the United States of America,” White House, September 2002 (hereafter NSS 2002), p. 15.

3. UN Charter, Article 51, <www.un.org/aboutun/charter>.

4. For an excellent introduction and discussion of the concept of preemption, see Henry Shue and David Rodin, eds., Preemption: Military Action and Moral Justification (New York: Oxford, 2010).

5. See Suzanne Uniacke, “On Getting One's Retaliation in First,” in Shue and Rodin, eds., Preemption, pp. 69–88; and David Rodin, “The Problem with Prevention,” in Shue and Rodin, eds., Preemption, pp. 143–70.

6. NSS 2002, pp. 13–16. The Obama administration's 2010 National Security Strategy studiously avoids mentioning either preemption or prevention, stating only that, “The United States must reserve the right to act unilaterally if necessary to defend our nation and our interests, yet we will also seek to adhere to standards that govern the use of force.” “National Security Strategy,” White House, May 2010, p. 20. Arguments for and against military action against Iran's alleged nuclear weapons program can be found on the Foreign Affairs website, “The Iran Debate: To Strike or Not to Strike,” <www.foreignaffairs.com/features/collections/the-iran-debate-to-strike-or-not-to-strike>.

7. Anthony Clark Arend offers a concise analysis of the Caroline incident in “International Law and the Preemptive Use of Military Force,” Washington Quarterly 26 (Spring 2003), pp. 89–103.

8. This and the subsequent quotation from Webster are collected in Lori F. Darmosch et al., International Law: Cases and Materials (2001), p. 923.

9. Outstanding among many introductions to the just war ethical tradition are Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York: Basic Books, 1977); Jean Bethke Elshtain, Just War Against Terror: The Burden of American Power in a Violent World (New York: Basic Books, 2003); and Helen Frowe, The Ethics of War and Peace: An Introduction (New York: Routledge, 2011).

10. Walzer, Just and Unjust Wars, p. 81.

11. See, for example, Richard K. Betts, “Striking First: A History of Thankfully Lost Opportunities,” Ethics and International Affairs 17 (Spring 2003), p. 22; and Jeffrey Record, “Nuclear Deterrence, Preventive War, and Counterproliferation,” Cato Institute Policy Analysis No. 519, July 8, 2004.

12. Essential discussions of humanitarian intervention include United States Institute of Peace, The Ethics of Armed Humanitarian Intervention (Washington: USIP, August 2002); Cristina G. Badescu, Humanitarian Intervention and the Responsibility to Protect: Security and Human Rights (New York: Taylor and Francis, 2010); and Aidan Hehir, Humanitarian Intervention: An Introduction (London: Palgrave MacMillan, 2010).

13. NSS 2002, p. 15.

14. Henry Shue and David Rodin, “Introduction,” in Shue and Rodin, eds., Preemption, pp. 1–21.

15. With particular reference to WMD and proliferation enforcement, see Arend, “International Law and the Preemptive Use of Military Force,” James J. Wirtz and James A. Russell, “U.S. Policy on Preventive War and Preemption,” Nonproliferation Review 10 (Fall 2003), pp. 113–23; and Marc Trachtenberg, “Preventive War and U.S. Foreign Policy,” in Shue and Rodin, Preemption, pp. 40–68.

16. Arend, “International Law and the Preemptive Use of Military Force,” p. 101. See also Thomas M. Franck, Recourse to Force: State Action and Threats Against Armed Attacks (Cambridge, UK: Cambridge University Press, 2002).

17. Mark L. Rockefeller, “The ‘Imminent Threat’ Requirement for the Use of Preemptive Military Force: Is it Time for a Non-Temporal Standard?,” Denver Journal of Law and Policy 33 (Winter 2004), pp. 131–49.

18. George P. Fletcher and Jens David Ohlin, Defending Humanity: When Force is Justified and Why (New York: Oxford, 2008), p. 169.

19. George P. Fletcher and Jens David Ohlin, Defending Humanity: When Force is Justified and Why (New York: Oxford, 2008), p. 169.

20. Joschka Fischer, “'I Am Not Convinced’: Joschka Fischer on Germany's No to the Iraq War,” Der Spiegel, February 7, 2011, <www.spiegel.de/international/germany/0,1518,745901,00.html>.

21. David Luban, “Preventive War,” Philosophy and Public Affairs 32 (Summer 2004), pp. 207–48; and “Preventive War and Human Rights,” in Shue and Rodin, eds., Preemption, pp. 171–201.

22. Luban, “Preventive War,” pp. 230–31.

23. Luban, “Preventive War,” pp. 230–31.

24. Uniacke, “On Getting One's Retaliation in First,” in Shue and Rodin, eds., Preemption, pp. 69–88; and Rodin, “The Problem with Prevention,” in Shue and Rodin, eds., Preemption, pp. 143–70.

25. Uniacke, “On Getting One's Retaliation in First,” in Shue and Rodin, eds., Preemption, pp. 69–88; and Rodin, “The Problem with Prevention,” in Shue and Rodin, eds., Preemption, 196–99.

26. Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and Their Destruction (hereafter CWC), Article II, para. 1, April 29, 1997 (entry into force), <cns.miis.edu/inventory/pdfs/aptcwc.pdf>.

27. Amy E. Smithson offers an excellent exploration of the problems inherent in determining whether or not states are pursuing BW in Germ Gambits: The Bioweapons Dilemma, Iraq and Beyond (Stanford, CA: Stanford University Press, 2011).

28. Leading studies of the Cuban Missile Crisis include James G. Blight and David Welch, On the Brink (New York: Hill & Wang, 1989); Aleksandr Fursenko and Timothy Naftali, “One Hell of a Gamble”: Khrushchev, Castro, and Kennedy, 1958–1964: The Secret History of the Cuban Missile Crisis (New York: Norton, 1998); Sheldon M. Stern, The Week the World Stood Still: Inside the Secret Cuban Missile Crisis (Stanford, CA: Stanford, 2005); and Michael Dobbs, One Minute to Midnight: Kennedy, Khrushchev, and Castro on the Brink of Nuclear War (New York: Knopf, 2008).

29. “Regime change” in the context of preventive war is discussed by Neta C. Crawford, “The False Promise of Preventive War: The ‘New Security Consensus’ and a More Insecure World,” in Shue and Rodin, eds., Preemption, pp. 89–126; and Henry Shue, “What Would a Justified Preventive Military Attack Look Like?” in Shue and Rodin, eds., Preemption, pp. 222–46.

30. See the Center for Nonproliferation Studies overview of the Treaty on the Non-Proliferation of Nuclear Weapons, <cns.miis.edu/inventory/pdfs/npt.pdf>.

31. See the Center for Nonproliferation Studies overview of the Treaty on the Non-Proliferation of Nuclear Weapons, <cns.miis.edu/inventory/pdfs/npt.pdf>.

32. For thorough discussions of the attack, see Israel's Attack on Osiraq: A Model for Future Preventive Strikes? (Colorado Springs: USAF Institute for National Security Studies, 2005); and Målfrid Braut-Hegghammer, “Revisiting Osirak: Preventive Attacks and Nuclear Proliferation Risks,” International Security 36 (Summer 2011), pp. 101–32.

33. “Iraq Nuclear Chronology,” James Martin Center for Nonproliferation Studies/Nuclear Threat Initiative, February 2009, <www.nti.org/media/pdfs/iraq_nuclear.pdf>.

34. Anthony H. Cordesman, “The Israeli Nuclear Reactor Strike and Syrian Weapons of Mass Destruction: A Background Analysis,” Center for Strategic and International Studies, October 24, 2007, <csis.org/publication/israeli-nuclear-reactor-strike-and-syrian-weapons-mass-destruction>; Board of Governors, International Atomic Energy Agency (IAEA), “Resolution Adopted by the Board of Governors on 9 June 2011: Implementation of the NPT Safeguards Agreement in the Syrian Arab Republic,” GOV/41/2011, June 9, 2011.

35. See most recently Board of Governors, IAEA, “Report by the Director General: Implementation of the NPT Safeguards Agreement and Relevant Provisions of Security Council Resolutions in the Islamic Republic of Iran,” GOV/2011/65, November 8, 2011.

36. Protocol for the Prohibition of Use in War of Asphyxiating, Poisonous, or Other Gases, and of Bacteriological Methods of Warfare (Geneva Protocol), February 8, 1928 (entry into force), <www.state.gov/t/isn/4784.htm>.

37. For a survey of Iraq's use of CW, see Jonathan B. Tucker, War of Nerves: Chemical Warfare from World War I to Al-Qaeda (New York: Pantheon, 2006); and Dilip Hiro, The Longest War: The Iran-Iraq Military Conflict (London: Routledge, 1990).

38. See Ruth Wedgwood, “The Enforcement of Security Council Resolution 687: The Threat of Force Against Iraq's Weapons of Mass Destruction,” American Journal of International Law 92 (1998) pp. 724–28; Central Intelligence Agency, “Comprehensive Report of the Special Advisor to the DCI on Iraq's WMD” (commonly known as the Iraq Survey Group, or Duelfer, Report), Vol. 3, September 30, 2004; and Smithson, Germ Gambits.

39. Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, <www.cwc.gov/cwc_treaty.html>.

40. Michael Barletta, “Chemical Weapons in the Sudan: Allegations and Evidence,” Nonproliferation Review 6 (Fall 1998), pp. 115–36; Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction, “Report to the President of the United States,” March 31, 2005, <www.fas.org/irp/offdocs/wmdcomm.html>, p. 254; Tucker, War of Nerves, p. 376.

41. Jez Littlewood, The Biological Weapons Convention: A Failed Revolution (Surrey, UK: Ashgate, 2005); Kathryn McLaughlin and Kathryn Nixdorff, BWPP Biological Weapons Reader (Geneva: BioWeapons Prevention Project, 2009). For an illustrative case study, see Jonathan B. Tucker, “The ‘Yellow Rain’ Controversy: Lessons for Arms Control Compliance,” Nonproliferation Review 8 (Spring 2001), pp. 25–42.

42. Central Intelligence Agency, “Comprehensive Report of the Special Advisor to the DCI on Iraq's WMD,” Vol. III, Part 2, “Biological Warfare,” pp. 1–59; Smithson, Germ Gambits.

43. BW accusations are discussed in Jeanne Guillemin, Biological Weapons (New York: Columbia University Press, 2005).

44. Milton Leitenberg and Raymond R. Zilinskas, eds., The Soviet Biological Weapons Program: A History (Cambridge, MA: Harvard University Press, forthcoming).

45. See for example Jeremy Tamsett, “The Israeli Bombing of Iraq Reconsidered: Successful Counterproliferation?,” Nonproliferation Review 11 (Fall/Winter 2004), pp. 70–85; and Braut-Hegghammer, “Revisiting Osirak.”