The Preemption Doctrine and Nuclear Weapons

1
The Preemption Doctrine and Nuclear Weapons
2
Iranian Nuclear Facilities
3
Nuclear Preemption

• Objective is to prevent future offensive use of
  nuclear weapons
• Elements of nuclear preemption are based on
  present conditions, not on what might happen in
  the future

4
Domestic Preemption Focuses on Preventing Future
Harm

• Criminal
• Attempt
• Solicitation
• Conspiracy
• Civil
• Injunctions (to prevent irreparable harm)
• Speech limitations (to prevent violence)
• Civil commitment (of insane persons, mentally ill
  persons, and sex offenders)
• Bail denials (to prevent defendants from
  attacking witnesses)

5
Iraq

• From Military Spot

6
Iran and Israel

• Iran President
• Hezbollah shattered the myth that Israel is
  undefeatable. Now Israel has no reason to
  exist. Mahmoud Ahmadinejad, N. Y. Times,
  October 20, 2006
• "Iran has succeeded in development to attain
  production of nuclear fuel at an industrial
  level." Mahmoud Ahmadinejad, CNN, April 9, 2007
• Iran might have 3000 centrifuges by the end of
  2007, N.Y. Times, May 15, 2007
• Israel Deputy Defense Minister
• I am not advocating an Israeli preemptive
  military action against Iran, and I am aware of
  all of its possible repercussions. I consider it
  a last resort. But even the last resort is
  sometimes the only resort.
• Ephraim Sneh, Jerusalem Post, November 10, 2006
• United States President
• If they Iran continue to move forward with the
  program, there has to be a consequence.
• George Bush, N.Y. Times, November 13, 2006

7
Charter of the United Nations

• Article 2(4)
• All Members shall refrain in their international
  relations from the threat or use of force against
  the territorial integrity or political
  independence of any state, or in any other manner
  inconsistent with the Purposes of the United
  Nations.
• Article 51
• Nothing in the present Charter shall impair the
  inherent right of individual or collective
  self-defence if an armed attack occurs against a
  Member of the United Nations, until the Security
  Council has taken measures necessary to maintain
  international peace and security (emphasis added).

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When to Act to Prevent Future Harm

• Self-defense (after being attacked) (UN Article
  51)
• Self-defense (last moment before being attacked)
  (domestic)
• Anticipatory self-defense (Caroline incident
  "Necessity of that self-defence is instant,
  overwhelming, and leaving no choice of means, and
  no moment for deliberation")
• Preventive action
• Preemptive action

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Nations Responses to Perceived Threats

• Self-defense (after being attacked)
• 1990 Iraqs crossing of Kuwaits border
• Self-defense (last moment before attack)
• Anticipatory self-defense (no moment for
  deliberation)
• 1967 Israels attack on Egypt
• Preventive action
• 1962 U.S. blockade of Cuba and Soviet nuclear
  missiles
• Preemptive action
• 1981 Israel attack on Osiraq nuclear reactor in
  Iraq
• 2003 U.S. attack on Iraq regarding nuclear
  development

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Self-defense against Nuclear Weapons

• Missiles
• In silos or underground
• Speed to 15,000 mph/24,110 kph
• Range to 9,000 miles/14,484 kilometers
• Tehran to Tel Aviv (993 miles/1,598 kilometers)
• UN Charter self-defense principles are
  inapplicable in a modern era
• Retreat from a nuclear missile is not possible
• Imminence of an attack cannot be known because of
  missile capabilities
• Proportionate nuclear attack in defense is not
  possible (because of scope of blast, heat, and
  radiation damage)

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Irans Shahab-3
Launch of a Shahab-3B as shown on the
Iranian TV. (Photo IRIB)
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Iran's Ballistic Missile Capabilities

• Missile System Inventory Range Payload CEP Target
  ing range
• Shehab-1 200-300 300km 985kg 450m U.S.
  bases/Middle East
• Shehab-2 100-250 500km 700kg 50m U.S.
  bases/Middle East
• Shehab-3 25-100 2200km 700kg 190m Israel
• Shehab-4 unknown 2-3000km unknown 3500m Germany/T
  urkey
• Circular Error Probability
• In part, from Sammy Salama and Karen Ruster, A
  Preemptive Attack on Iran's Nuclear Facilities
  Possible Consequences, Center for
  Nonproliferation Studies (September 9, 2004)

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Iran Missile test (October 2006)
AFP -- Getty Images
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Nuclear Weapons Programs
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Iranian Nuclear Weapons Program

• Creation of first nuclear weapon
• 2007 (Iran) 2009 (Israel and Bulletin of Atomic
  Scientists) 2011 (United States)
• 3000 centrifuges by end of 2007 (2-3 nuclear
  weapons per year)
• 10 kiloton bomb (10,000 tons of TNT) (U.S./Japan
  20 kilotons)
• Possible use of nuclear weapons
• "As the Imam said, Israel must be wiped off the
  map," said President Mahmoud Ahmadinejad,
  referring to Iran's revolutionary leader Ayat
  Allah Khomeini. Aljazeera.net, October 26, 2005
• Possible transfer of nuclear weapons or material
  to
• Hezbollah, Hamas, Islamic Jihad, al-Aksa Martyrs,
  Palestinian Islamic Jihad, al Qaeda, Kurdistan
  Workers Party, Hamas

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Indicators of Nuclear Weapons Development

• Highly enriched uranium (Natanz)
• Currently 5 purity
• Could convert to 90 purity (weapons grade) in
  4-5 months
• Plutonium (Arak)
• Centrifuges (3000 by end of 2007 2-3 bombs per
  year)

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Natanz Uranium Enrichment Facility
Satellite image by GeoEye on Tuesday, Aug.
22, 2006 purports to Show the Natanz nuclear
facility in IranPhoto AP
18
Natanz

• DIGITALGLOBE/GETTY IMAGES

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Arak Plutonium Facility
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(No Transcript)
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Theories of Nuclear Preemption

• Violation of Treaty on Non-Proliferation of
  Nuclear Weapons
• Violation of Security Council Resolution 1737
  (continuing enrichment)
• Violation of Article 2(4) (threatening force
  against Israel)
• Armed attack under Article 51 (self-defense)
• Anticipatory self-defense (imminent attack)
• Conspiracy to commit grave crimes

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Elements of Nuclear Preemption

• 1. Production of highly enriched uranium (U-235)
  or plutonium, and
• 2. Planning or conspiring to commit, and
• 3. Aggression, crimes against humanity, genocide,
  or war crimes (grave crimes), and
• 4. Against another state, and
• 5. Providing continuing material support for the
  intended grave crime

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Conspiracy Liability

• Nuremberg (International Military Tribunal)
• Conspiracy to commit a crime against peace
  (aggressive war)
• Crime of membership in a criminal organization
• Convention on the Prevention and Punishment of
  Genocide (conspiracy)
• International Criminal Tribunal for the Former
  Yugoslavia
• Joint criminal enterprise basis of liability for
  war crimes
• Conspiracy to commit genocide
• East Timor Special Panel for Serious Crimes
  (common purpose)
• Special Court for Sierra Leone
• Statute (planning)
• Indictments (common plan and group membership)
• International Criminal Court (aids, abets,
  assists, or contributes)

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Assumptions in Nuclear Preemption

• Cost of preemption is less than the risk of
  nuclear proliferation
• Deterrence is less effective or ineffective
  against
• Doctrines promoting suicidal attacks
• Nations/terrorists that commit grave crimes
• High risk of terrorists receiving and using
  nuclear weapons or material (radiological weapon)
  

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Consequences of Nuclear Preemption

• Disadvantages
• Force could be used earlier
• Grave crimes might not be reliable indicators of
  a nuclear attack
• Iran does not really believe Israel should not
  exist
• Iran might not use or transfer nuclear materials
  to terrorists
• Advantages
• Ambiguity about preemption lessened
• Measure present intention and support for grave
  crimes
• No need to predict future intentions
• Preemption limited to nuclear weapons
• More nuclear weapons unneeded to deter nuclear
  proliferation

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Comments
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Necessary Presumptions Absent a Nuclear
Preemption Doctrine

• Iran or a similar nation will
• Never use nuclear weapons and
• Never transfer nuclear weapons to terrorists,
• and
• Terrorists will never develop or use nuclear
  weapons,
• Or
• All entities that possess of nuclear weapons can
  always be deterred,
• Or
• Accept that some nation or nations will be
  attacked with a nuclear weapon