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A NEW STANDARD for PREEMPTIVE MILITARY ACTION AGAINST WMD THREATS Fred Wehling Version of Record First Published: 12 Jun 2012

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A NEW STANDARD for PREEMPTIVE MILITARY ACTION AGAINST WMD THREATS Fred Wehling Version of Record First Published: 12 Jun 2012 This article was downloaded by: [24.6.15.156] On: 02 July 2012, At: 22:53 Publisher: Routledge Informa Ltd Registered in England and Wales Registered Number: 1072954 Registered office: Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK The Nonproliferation Review Publication details, including instructions for authors and subscription information: http://www.tandfonline.com/loi/rnpr20 A NEW STANDARD FOR PREEMPTIVE MILITARY ACTION AGAINST WMD THREATS Fred Wehling Version of record first published: 12 Jun 2012 To cite this article: Fred Wehling (2012): A NEW STANDARD FOR PREEMPTIVE MILITARY ACTION AGAINST WMD THREATS, The Nonproliferation Review, 19:2, 313-325 To link to this article: http://dx.doi.org/10.1080/10736700.2012.691023 PLEASE SCROLL DOWN FOR ARTICLE Full terms and conditions of use: http://www.tandfonline.com/page/terms-and- conditions This article may be used for research, teaching, and private study purposes. Any substantial or systematic reproduction, redistribution, reselling, loan, sub-licensing, systematic supply, or distribution in any form to anyone is expressly forbidden. The publisher does not give any warranty express or implied or make any representation that the contents will be complete or accurate or up to date. The accuracy of any instructions, formulae, and drug doses should be independently verified with primary sources. The publisher shall not be liable for any loss, actions, claims, proceedings, demand, or costs or damages whatsoever or howsoever caused arising directly or indirectly in connection with or arising out of the use of this material. VIEWPOINT A NEW STANDARD FOR PREEMPTIVE MILITARY ACTION AGAINST WMD THREATS Fred Wehling 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 We no longer live in a world where only the actual firing of weapons represents a sufficient Downloaded by [24.6.15.156] at 22:53 02 July 2012 challenge to a nation’s security to constitute maximum peril. Nuclear weapons are so destructive, and ballistic missiles are so swift, that any substantially increased probability of their use or any sudden change in their deployment may well be regarded as a definite threat to peace. *President John F. Kennedy, October 22, 19621 We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries. Rogue states and terrorists do not seek to attack us using conventional means. They know such attacks would fail. Instead, they rely on acts of terror and, potentially, the use of weapons of mass destruction*weapons that can be easily concealed, delivered covertly, and used without warning. *2002 US National Security Strategy2 Nonproliferation Review, Vol. 19, No. 2, July 2012 ISSN 1073-6700 print/ISSN 1746-1766 online/12/020313-13 # 2012 Monterey Institute of International Studies, James Martin Center for Nonproliferation Studies http://dx.doi.org/10.1080/10736700.2012.691023 314 FRED WEHLING The right of states to use military force in self-defense is one of the most venerable principles of international law and ethics. The UN charter clearly recognizes that states possess an inherent right to self-defense and specifically mentions self-defense against an armed attack as a legitimate use of force that does not require authorization by the Security Council.3 Customary international law has long recognized, though not without controversy, that states faced with an ‘‘imminent threat’’ of armed attack need not wait to suffer an initial strike but may act preemptively to thwart an attack that appears about to occur, as evidenced by noticeable preparations for offensive military action.4 In contrast to preemption, preventive military action*that is, the use of force to forestall attacks that appear likely to occur, but not in the immediate future*has not been generally recognized as self-defense, and indeed was often condemned as little more than an excuse for offensive action.5 The need for states to respond, individually and collectively, to the intertwined threats of terrorism and weapons of mass destruction (WMD) has thrust the distinction between preemption and prevention, and the moral legitimacy of preventive war, into the forefront of legal, political, and ethical debate. The official incorporation of preventive action, or ‘‘anticipatory self-defense,’’ into US strategic doctrine in 2002 and the subsequent coalition military operations in Iraq in 2003 heightened the intensity of this debate, and recent calls for military action to prevent Iran from developing nuclear weapons demonstrate its urgency.6 Consequently, there is widespread agreement that new legal and ethical standards are required for defining preemptive action and/or determining when preventive war may be morally and legally permissible in cases of known or suspected possession of WMD. However, there is sharp disagreement on what those standards should be. This article first reviews noteworthy contributions to the controversy. Then it leaps into the fray by proposing that the possession of a weapon of mass destruction 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 merits, potential difficulties, and implications of adopting this standard*designed to enable effective enforcement of legally binding agreements for nonproliferation and control of WMD without giving states carte blanche to initiate war against potential enemies*will be considered with reference to historical and contemporary cases. Downloaded by [24.6.15.156] at 22:53 02 July 2012 Before proceeding it should be noted that the author, while a student of international ethics, makes no claim to be an expert in international law. However, considering the moral weight of the preemption question and the severity of the threats of WMD and terrorism, and with homage to Clemenceau, law is too important to be left to the lawyers. Traditional Definitions of Imminence and Preemption Ironically, the traditional criteria for defining imminent threat and preemptive use of force were articulated in the nineteenth century in response to an incident that involved allegations of US support for what today would be considered international terrorism. A NEW STANDARD FOR PREEMPTIVE MILITARY ACTION AGAINST WMD THREATS 315 On December 29, 1837, British troops in Canada boarded an American ship, the Caroline* anchored on the US side of the Niagara River*which they believed was assisting armed rebel groups in Canada. The British troops, claiming they were acting in self-defense, killed several US nationals, set the Caroline on fire, and sent it over Niagara Falls.7 US Secretary of State Daniel Webster sent strong protests to London, including two criteria that would have to be satisfied in order for the British claim of self-defense to be valid. The first criterion was temporal: ‘‘The necessity of self-defense is instant, overwhelming, and leaving no choice of means, and no moment of deliberation.’’8 The second was one of proportionality, an essential element of the just war tradition in Christian ethics.9 As Webster put it, ‘‘the act, justified by the necessity of self-defense, must be limited by that necessity, and kept clearly within it.’’ These two principles, which became known as the Webster criteria or the Caroline criteria, were generally accepted as defining an imminent threat and setting standards for permissible preemptive action. Mindful that many aspects of armed conflict have changed radically since the era of muskets, cannons, and sailing ships, twentieth-century scholarship has sought to critically evaluate and refine these traditional criteria. In Just and Unjust Wars, widely considered to be a definitive classic in modern international ethics, Princeton University professor Michael Walzer argues for three necessary conditions under which a threat, posed either by states or non-state actors, could be considered sufficient to justify preemptive action: 1. The threatening
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