ANU Preemption of Nuclear Weapons

The Preemption of Nuclear Weapons

I. Introduction a. Danger: nuclear weapons development and the commission of grave crimes b. Self-defense is inadequate to protect nations c. Second justification for the use of force is nuclear preemption

II. Issues a. Factual i. Is Iran developing nuclear weapons? ii. Will Iran use nuclear weapons offensively? iii. Will Iran give nuclear weapons to terrorists? iv. Will terrorists use nuclear weapons? b. Legal i. What kinds of force does self-defense authorize? ii. Is there another basis for the use of force? iii. What is that basis? What is the theory? What are the elements of the theory?

III. Joint Criminal Enterprise/Common Plan/Conspiracy: liability for the acts of another a. Same criminal intention b. Knowledge of and participation in a system of repression (concentration camp) c. Criminal acts outside a common design—foreseeable acts of accomplices in some crime (intent to remove ethnic members of a town with the consequence that one of them is killed) [Rome Statute: the defendant is responsible if he or she “commits, orders, or aids and abets the crime, or in any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose."]

IV. Necessary presumptions absent a nuclear preemption doctrine a. Iran or a similar nation will: i. Never use nuclear weapons ii. Never transfer nuclear weapons to terrorists b. Terrorists will never develop or use nuclear weapons c. All entities that possess nuclear weapons can always be deterred Or d. Accept that some nation or nations will be attacked with nuclear weapons

V. Further information a. “Pre-empting Nuclear Catastrophe: Checking the threat posed by Iran with a doctrine of nuclear preemption,” 28 (5) Harvard International Review xx (forthcoming summer 2007). b. “The Preemption of Nuclear Weapons,” Military Review xx (forthcoming fall 2007) c. Contact Information: Tim Bakken; Professor of Law; United States Military Academy; West Point, New York 10996; [email protected]; (845) 938- 5544