A Murky Standard with High Stakes
In “A New Standard for Preemptive Military Action Against WMD Threats” (19.2, July 2012, pp. 313–24), Fred Wehling addresses the question of whether and when attacks against suspected nuclear facilities are consistent with international law. This question is especially timely in light of near-daily rumors that Israel is planning to attack Iran's facilities.
It is also apt given that the United Nations Charter, as Secretary of State John Foster Dulles said, is a pre-atomic document. The principle of anticipatory self-defense that is embedded in the Charter as Article 51 permits states to undertake military action in the event of an imminent attack against them. Interpreting this principle in light of an imminent conventional attack is relatively straightforward, e.g., an adversary amassing troops at the border. Hence, Michael Walzer suggests that Israel was justified in launching a preemptive attack that started the Six-Day War; the Arabs had amassed troops at Israel's border and were poised for an imminent attack.
In the era of nuclear weapons, the issue of imminence becomes murky, and what is justified under international law therefore becomes trickier. If Iran, for example, were to acquire nuclear weapons, then the time between the nuclear-tipped missiles leaving their silos and hitting Tel Aviv is a matter of minutes. By what standards do we judge imminence and, consequently, by what standards is the use of force justified as a legitimate form of anticipatory self-defense?
Wehling seeks to provide an answer to that question and does a commendable job at defining and responding to this conundrum. The problem, however, is that the guidelines he gives raise more questions than they answer. Those guidelines are as follows: “the possession of a weapon of mass destruction (WMD) or a clandestine program to develop WMD by any state or non-state actor in contravention of international law should be considered an imminent threat to international peace and security and thereby a justification for preemptive military action by any state.”
The first part of the guidance finds that a state is culpable and a potential target if it possesses a weapon of mass destruction or a clandestine program. This criterion, which undergirds the analysis, is highly problematic. Most fundamentally, if it is a clandestine program, how do we know about it? This requires intelligence capabilities that have proven faulty in a number of analogous cases: in the 1991 Persian Gulf War, Iraq had many more WMD facilities than the United States had identified; in the 2003 war, it had none of the facilities the United States had identified.
Recognizing that this is a troublesome criterion, Wehling proposes that “efforts to conceal information relevant to the determination of compliance with nonproliferation agreements from the agencies tasked with monitoring compliance, such as the International Atomic Energy Agency” would constitute evidence of a clandestine program. However, we know from the experience with Iraq that it had consistently withheld information and access from inspectors. With Security Council Resolution 1441, the UN Security Council ruled that Iraq was “in ‘material breach’ of its obligations under previous resolutions.” If acting as though a state has a clandestine program is evidence of one, then we would certainly end up with “false positives”—states that appear to have a clandestine program but do not—with Iraq in 2003 being the case in point. Such a standard discounts the incentives states have to misrepresent themselves to international inspectors, such as to shore up domestic support by appearing resolute in the face of adversaries.
Even determining the status of a declared nuclear program, such as Iran's, is no easy task. One factor that makes this a dubious proposition is the dual-use nature of nuclear technology. Enrichment for the purposes of peaceful nuclear energy is accomplished through similar processes and facilities as for nuclear weapons; only the degree of enrichment is different. Nothing in the Treaty on the Non-Proliferation of Nuclear Weapons precludes uranium enrichment; it does however, preclude converting a peaceful, legitimate program into a military, illegitimate one. Contrary to Wehling's assertion that there is a bright line “between legitimate possession of WMD … and illegitimate possession of such weapons,” the nub of the problem with Iran's nuclear program is precisely that: the dual-use problem makes that line almost unknowable. How do we ascertain whether Iran's fissile material production is for nuclear weapons—which are not allowed under international law—or for nuclear energy—which is allowed?
Wehling tacitly concedes the difficulty of judging this “known unknown”—that is, whether the programs we think exist actually do exist and in what manner—when he states that “in almost all cases, determinations of whether a suspected WMD program in fact existed before preemptive action will have to be made post facto.” States would certainly relinquish the element of surprise by broadcasting their intentions to attack. Further, ex ante evidence can be of dubious quality, since, if states are not letting in inspectors, they may also be hermetically sealed in terms of on-the-ground intelligence sources. But given the stakes—an armed attack against another state—it seems that post facto evidence is a flimsy burden of proof to impose on an attacker.
Setting aside the question of whether a state has a WMD or clandestine program, the question of alternate strategies seems relevant but overlooked in Wehling's discussion. Just war theory, which forms the basis of modern international law, stipulates that the use of force is only justified after every other peaceful instrument has been exhausted. Certainly there are “bolt from the blue” cases, such as Israel's attacks against Iraq in 1981 and Syria in 2007, but the case on readers' minds is likely to be Iran's program, which has been the subject of extensive diplomatic and economic sanctions. The question then becomes, when can the attacking state reasonably say that these peaceful instruments have run their course? In a world of existential nuclear threats, it may be that might makes right and states do not have to appeal to the court of public opinion.
But even the United States, criticized for its unilateral invasion of Iraq, went to great lengths to be seen as acting in a way that was consistent with international legal principles. To the extent that these states want to be seen as acting in such a way, is there any obligation to exhaust peaceful negative sanctions before turning to the use of force? Or, once one state has reason to believe that another state has crossed the line between legitimate and illegitimate possession of nuclear materials, can it resort immediately to an attack?
In short, Wehling's effort to sharpen the principles of self-defense embedded in the UN Charter to bring it in line with the atomic era is both ambitious and praiseworthy. It has advanced the discussion about when an attack on suspected nuclear facilities is consistent with international law. But given the questions it raises, it is unlikely to be the last word on the subject.
Sarah E. Kreps
Assistant Professor of Government
Cornell University
Ithaca, New York
Fred Wehling responds
I am grateful to Sarah Kreps for her thoughtful comments. Her remarks usefully illustrate some of the practical challenges the international community could face in applying the standard I proposed for determining when possession of WMD or a clandestine program to develop WMD would constitute an imminent threat to international peace and security. I would like to respond to some of her key points.
First, states will certainly require intelligence capabilities in order to determine the existence of a clandestine program to develop WMD. However, imminent conventional threats may also be clandestine—the examples of Pearl Harbor and the September 11, 2001 attacks show how states or non-state actors can successfully conceal preparations to attack. The risk of responding to a “false positive” can never be eliminated, but must be balanced against the risk of failing to respond to a “false negative.” States seeking to forestall conventional attacks are under no obligation to present their case publicly before taking preemptive action in self-defense, but must face the possibility of international sanctions and the court of global public opinion afterwards. I would argue that the same obligations should apply to states attempting to preempt WMD.
Second, Professor Kreps is right to point out that the mere possession of dual-use technology or conduct of research with both peaceful and military applications should not be considered sufficient evidence of a clandestine WMD program. The dual-use problem is particularly acute when considering biological weapons, where offensive and defensive research may be indistinguishable. Establishing the existence of a clandestine WMD program should therefore require evidence of weaponization—for example, design or testing of explosive components for nuclear weapons or munitions especially designed to deliver biological or chemical weapons—or the intention to weaponize, such as a decision by national leaders to proceed with WMD development. Establishing that a state or non-state actor possesses a design for a nuclear weapon or code for simulation of nuclear explosions would not be sufficient in the absence of other evidence of intentions or capabilities. A holistic approach taking political, technical, economic, and strategic factors into account (similar to the International Atomic Energy Agency's state-level concept for safeguards analysis, but equally applicable to non-state actors) is required. The “smoking gun” will not be the same in all cases, but the bar should always be set high.
Third, it is quite appropriate to apply the just war criterion of “last resort” to any use of force, but this criterion is inherently problematic. Determining when all peaceful means of alleviating a threat have been exhausted is a practical impossibility; one can never rule out the chance that one more démarche, one more negotiation, or one more round of sanctions may produce the desired effect. The problem is especially acute when considering imminent threats, which, as defined in the Caroline criteria noted in my article, leave “no moment for deliberation.” An adversary caught in the act of preparing to attack may vociferously deny any aggressive intentions and stand down, then proceed to attack the next day. The point at which nonviolent options are no longer viable must always be a matter of prudential judgment and can only be determined on a case-by-case basis. In my view, the contention that all peaceful means for compelling Iran to halt and disclose any activities related to development of nuclear weapons have been exhausted is very strong. However, arguments that Israel fulfilled the criterion of last resort before taking action against Iraq in 1981 or Syria in 2007 are considerably weaker.
Further discussion of these and related issues is clearly required. In any event, I believe Professor Kreps and I are fully in agreement that development of international legal and ethical standards for nonproliferation enforcement is a serious and increasingly urgent issue and an essential step toward the achievement of a world free of weapons of mass destruction.
Gas Centrifuges and Today's Article IV Debates
Thank you for publishing John Krige's fascinating essay (“The Proliferation Risks of Gas Centrifuge Enrichment at the Dawn of the NPT: Shedding Light on the Negotiating History,” 19.2, July 2012, pp. 219–27). I suppose it isn't much fun at this point for British nonproliferation experts to tell Washington “I told you so,” but Krige's account suggests that they could. To my eye, it seems quite clear that UK assessments were indeed much sharper than American ones during the 1960s when it came to the proliferation risks of uranium enrichment technology, and about the feasibility of imposing adequate safeguards upon such technology as it spread around the world. Unfortunately for all concerned, the experts in London—fearing that “once the possibilities of centrifuge enrichment were widely known, clandestine production would render safeguards meaningless as a security guarantee and would reduce the NPT to a ‘dead letter’”—seem to have been disturbingly close to the mark.
This, however, was not the main point of Krige's article. In the specifics of his argument, he questions my own analysis of the NPT's negotiating history, contending that I am wrong to have suggested in 2009 that technology-possessors at the time of the NPT's negotiation did not fear uranium enrichment proliferation as much as plutonium production because the former technology was assumed to be technologically or financially out of reach of all but a few major international players. To the contrary, Krige recounts, it was becoming known to both US and British officials by the mid-1960s that gas centrifuge technology would make it increasingly possible to construct small and potentially concealable uranium enrichment plants.
And this may well be so. My analysis was based largely upon declassified US National Intelligence Estimates (NIEs) from the 1950s and 1960s, which seemed to show American proliferation assessments revolving principally around scenarios of “concealed diversion of plutonium from inspected power plants.” Other methods of fissile material production, however, “particularly … production of [uranium]-235,” were assessed to be so difficult and expensive that only a few countries could “by themselves achieve such a program over the next decade.”Footnote1 I see no reason to question my conclusion that US intelligence at that time was indeed focused principally upon plutonium risks. Krige's research, however, suggests that by the mid-1960s, the US Atomic Energy Commission (AEC) had come to understand the proliferation possibilities entailed by the emerging technology of gas centrifuge uranium enrichment.
I am thus happy to accept Krige's correction, though it is interesting to speculate about whose analysis held more weight for top-level American leaders as they approved the NPT—the AEC's more technologically-informed understandings about uranium, or the intelligence community's apparently plutonium-focused conclusions. (As Krige himself recounts, the British found President Richard Nixon to be “not at all in the picture” about the subject of “do-it-yourself [centrifuge] plants capable … of being set up ‘in a garage or a cellar.’” Perhaps Nixon and his predecessor read NIEs with more assiduousness?) Nevertheless, in light of Krige's investigations, my conclusion of an across-the-board focus upon plutonium proliferation needs to be modified, and I thank him for his careful attention to a topic that most commentators today treat as an occasion more for political polemics than for historical and legal analysis.
But Krige's disagreement with my plutonium conclusion is only a small part of the value of his essay. Much more importantly, from the perspective of today's ongoing debates over the meaning and implications of Article IV of the NPT, his scholarship gives us an important window into contemporaneous understandings of the treaty. In so doing, it highlights the stark differences between the treaty negotiators’ understandings and the wild and tendentious assertions that are now so commonplace about how it is every country's “inalienable right” to have as much fissile material production technology as it likes, so long as the International Atomic Energy Agency (IAEA) comes to check on things from time to time.
The issue of the degree to which “safeguardability” must necessarily condition how we interpret Article IV vis-à-vis enrichment technology, and indeed any dual-use nuclear technology, is something of a hobbyhorse issue for me. I hope readers of this journal are familiar with my long-running battle against the modern conventional wisdom—as articulated not only by self-interested Iranian diplomats but now also by some Western academics such as Daniel Joyner of the University of Alabama—that threatens to turn Article IV into a tool for dismantling the nonproliferation regime by facilitating the worldwide development of “virtual” nuclear weapon capabilities. (If readers want to learn more about this, my work is easily available online.Footnote2)
Krige's article is an important contribution to these ongoing debates, for his scholarship offers a fascinating glimpse into how the NPT was understood by two major players at the time of its negotiation—including one of the two co-drafters of the text that was used as the basis for negotiations in Geneva. At first glance, Krige's conclusions might seem to undermine my arguments against a proliferation-facilitating reading of Article IV. After all, Krige says that neither British nor American officials at the time believed the NPT to contain a per se prohibition on enrichment technology, and that they “accepted that the NPT did not prohibit signatories from building enrichment plants alone or with others.”
But that's just where the analysis starts to get interesting, for Krige also explains that these same officials did not think that states had a right under the NPT to pursue enrichment technology. The casual reader can be forgiven for wondering what this means. How can the NPT both not prohibit something and yet simultaneously not give a right to it?
As one can see from Krige's analysis, the answer appears to lie in the concept of “safeguardability.” In his account of the quiet Anglo-American technical discussions that went on in the background of the NPT negotiations, the key point of disagreement—on which the Americans ultimately prevailed because the British opted to swallow their concerns rather than risk derailing the treaty by asking for textual changes—was the degree to which IAEA safeguards could be relied upon to prevent the proliferation of enrichment technology from undermining the nonproliferation regime. For their part, the British had become “extremely alarmed by the proliferation risks posed by the new technology, especially the possibility of the clandestine production of enriched uranium.” They felt that under IAEA safeguards, a country with access to centrifuge technology would have—as the UK's chief scientific advisor on the topic put it— “a good chance of being able to enrich uranium clandestinely without being found out.”
Washington, however, had much more faith in the ability of safeguards to contain the problem, and the United States duly took the position that the NPT would present no obstacle to enrichment provided that such enrichment were adequately safeguarded. AEC officials, as Krige recounts, were confident that safeguards could be made “sufficiently robust” that the spread of this dual-use technology would not be a problem. And this is the critical point, for as Krige summarizes, “effective safeguardability” thus emerged as “the sine qua non of a non-nuclear weapon state developing a centrifuge enrichment plant within the framework of the NPT.”
This interpretation is quite consistent with the Article IV position I've been arguing for years: the NPT does not take a per se position on the permissibility for non-nuclear weapon states of enrichment technology or any other dual-use technology, but rather must be viewed as addressing these questions through the prism of whether or not the possession of such technology can be adequately safeguarded against abuse. If something is genuinely safeguardable, its development is permitted by Article IV; if not, not. The legal analysis piggybacks upon a factual analysis informed by the best available understanding of safeguards technology and of the opportunities that exist for deception or evasion.
And it is indeed precisely on this issue where Krige recounts Washington and London disagreeing during the NPT's drafting: the Americans felt that enrichment was effectively safeguardable, and the British thought it wasn't. The United Kingdom eventually threw in the towel in this debate over the factual issue of “safeguardability,” but it would appear that both governments actually agreed on the legal standard—namely, that this very question of safeguardability is indeed the critical point.
This is why I think Krige's article contributes so importantly to today's Article IV debates, and why it has significant policy implications. Since the effective safeguardability of dual-use technology is indeed the legal standard for assessing permissibility under Article IV, we should focus our attention on this factual question as we struggle with NPT issues today. Specifically, we need to remember that the issue of “safeguardability” is a factual issue, and that the answer to the question of safeguardability may vary over time. As technologies change, for instance, we might come to see that what was once safeguardable is no longer so—or we might realize that there are now ways to secure things that we previously felt were too dangerous to permit to spread. In either case, it is possible to realize that our previous understandings were faulty, one way or the other. The right answer is not fixed; it warrants ongoing reexamination.
Krige's analysis, therefore, highlights the need to reexamine the very factual issues debated between Washington and London in the 1960s. If the debate over gas centrifuges were held today, who would be right? Are they effectively safeguardable, as AEC analysts concluded back then? Or is the spread of centrifuge technology, as the British felt at the time, an “irreversible threat to … the Treaty”? On the answer to this question will hang the merits of today's ongoing diplomatic squabbles over the real meaning and implications of Article IV.
My kudos to John Krige for helping to highlight these important matters. He has written a very interesting and significant essay.
Christopher A. Ford
Senior Fellow
Hudson Institute
Washington, DC
John Krige responds
I thank Christopher Ford for his generous comment on my article and for highlighting safeguardability as the sine qua non for the exercise of the “inalienable right” to enrich material under Article IV of the NPT (and hence as a potentially more productive site for diplomacy than wrangling over “rights”). It is worth emphasizing again that, for the British, the “factual issue of safeguardability” raised important questions regarding the scope of safeguards.
The report prepared for the Prime Minister's Cabinet in March 1968 by the chief scientific adviser to the British government, Solly Zuckerman (cited in note 25 in the essay), emphasized that a weakness of the IAEA's system and of the text of the NPT was that “safeguards will be applied only to special fissionable material and not to equipment as such.” This was one reason why a country that built its own centrifuges “stood a good chance of being able to enrich uranium clandestinely without being found out”—it could surreptitiously feed a concealed cascade with unsafeguarded material.Footnote3 In other words, centrifuges were only “genuinely” or “effectively safeguardable” if inspectors (or their technological surrogates) could actually enter plants rather than be restricted to monitoring the flow of nuclear material. The British were right again, as confirmed by ongoing efforts to make safeguards increasingly intrusive, particularly since Iraq's nuclear weapons program was detected in 1991.Footnote4
Ford concludes that “effective safeguardability of dual use technology is indeed the legal standard for assessing permissibility under Article IV.” He notes that the factual question of whether a nuclear facility is safeguardable changes over time. Another point emphasized by the debate described in my essay is that effective safeguardability requires far more than nuclear material accountancy, and must be adapted to the specific possibilities for evasion that are associated with each type of installation.
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Erratum
In the July 2012 issue, a misquote of an archival document incorrectly characterized a 1968 British estimate of the potential output of a hypothetical nuclear centrifuge plant (pp. 222–23). The correct figure is 50 kilograms. We regret the error.
Notes
1 Director of Central Intelligence, “Nuclear Weapons Production in Fourth Countries - Likelihood and Consequences,” National Intelligence Estimate 100-6-57, June 18, 1957, pp. 1–3, <www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB155/prolif-2.pdf>.
2 See Christopher A. Ford, “Nuclear Technology Rights and Wrongs: The NPT, Article IV, and Nonproliferation,” Hudson Institute, June 1, 2009, < www.hudson.org/files/publications/20090601-Ford-NuclearRightsAndWrongs.pdf>; Christopher A. Ford, “Misinterpreting the NPT,” New Paradigms Forum, October 24, 2011, <www.newparadigmsforum.com/NPFtestsite/?p=1100>.
3 Report by the Chairman of the Working Party on Cooperation with Europe in Nuclear Energy, MISC 183(68)1, March 14, 1968, FCO55/111, The National Archives, London.
4 Wolfgang Fischer and Gotthard Stein, “On-Site Inspections: Experiences from Nuclear Safeguarding,” Disarmament Forum, 3 (1999), pp. 45–54, <http://unidir.org/html/en/disarmament_forum.php>.