The Preemption Doctrine and Nuclear Weapons

1. The Preemption Doctrine and Nuclear Weapons

2. Iranian Nuclear Facilities Center for Nonproliferation Studies

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).

8. 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

9. 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

10. 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)

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

12. Iran's Ballistic Missile Capabilities Missile System Inventory Range Payload CEP* 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 unknown 3500m Germany/Turkey *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)

13. Iran Missile test (October 2006) AFP -- Getty Images

14. Nuclear Weapons Programs

15. 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

16. 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)

17. 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

19. Arak Plutonium Facility

21. 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

22. 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

23. 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)

24. 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)

25. 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

26. Comments

27. 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