The Preemption Doctrine and Nuclear Weapons

Iranian Nuclear Facilities

Center for Nonproliferation Studies

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

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)

Iraq

From: Military Spot

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

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).

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

Nations’ Responses to Perceived Threats

Self-defense (after being attacked) 1990: Iraq’s crossing of Kuwait’s border

Self-defense (last moment before attack)

Anticipatory self-defense (no moment for deliberation) 1967: Israel’s 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

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)

Iran’s Shahab-3

Launch of a Shahab-3B as shown on the Iranian TV. (Photo: IRIB)

Iran's Ballistic Missile Capabilities

Missile System Inventory Range PayloadCEP*Targeting 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 unknown3500m Germany/Turkey

*Circular Error ProbabilityIn part, from Sammy Salama and Karen Ruster, “A Preemptive Attack on Iran's Nuclear Facilities: Possible

Consequences,” Center for Nonproliferation Studies (September 9, 2004)

Iran Missile test (October 2006)

AFP -- Getty Images

Nuclear Weapons Programs

Nation Program NPT Terror Threat

India Known No Medium Activity

Iran Seeking Yes State Sponsor

Iraq Ended Yes High Activity

Israel Known No High Activity

Libya

North Korea

Pakistan

South Korea

Taiwan

From James C. Kraska,“Nuclear Capabilities and

Terrorism,” Am. U. Int'l L. Rev. 703, 730 (2005) (emphasis added)

*Signed prior to recognition of PRC

Ended

Known

Known

Ended

Ended

Yes

No

No

Yes

Yes*

Prior state sponsor

Prior state sponsor

High Activity

Minimal activity

Minimal activity

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

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)

Natanz Uranium Enrichment Facility

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

Natanz

DIGITALGLOBE/GETTY IMAGES

Arak Plutonium Facility

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

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

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)

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)

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

Comments

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