The Case for Forcible Counter-Proliferation
The debate on the preemptive doctrine has dominated international law since the Bush Administration's National Security Strategy was published in autumn 2002. So far the discussion has been unhelpfully polarized, between those who defend the legal status-quo at all costs and those who contend that the law is outdated since the challenges of our era make preemption a necessity. The time is now ripe for a reassessment of these arguments.
Preemption is, in itself, neither irrational nor immoral. As already observed by Henry Kissinger in 1959, the strategic incentive to preempt the enemy has been intensified by technological change that has made a surprise attack more feasible and infinitely more destructive than in the past. At the same time, of course, the preemptive incentive is a potential danger for two main reasons. Firstly, the consequences of a mistake would be disastrous. Secondly, it can be easily exploited as a pretext for aggression. Ever since nuclear weapons were invented, national security strategists have had to deal with these conflicting considerations: the rationality of the incentive to act preemptively, and the dangers inherent to preemption.
In the days of the Cold War, the preemptive incentive was offset by a synergy of political doctrines and legal instruments. The most powerful device proved to be what Philip Bobbit calls an ‘intellectual creation': the doctrine of deterrence and its corollary, the notion of mutually assured destruction. Deterrence was the pivotal element in the system, but legal principles and instruments buttressed it. Firstly, central to the legal regulation of the use of force is its prohibition in article 2 (4) of the UN Charter, which places the surprise attacker squarely outside the boundaries of legality. Secondly, various bilateral agreements, most importantly strategic arms reduction treaties, were concluded between the Soviet Union and the US, in order to reduce the risk of nuclear war as a result of ‘accident, miscalculation or surprise attack'. Thirdly, the legal regime on non-proliferation played an important role. Since the 1970s, its main instruments have been the Nuclear Non-Proliferation Treaty (NPT) and the Biological Weapons Convention (BWC), with the addition of the Chemical Weapons Convention (CWC) in the 1990s. Moreover, various portions of territory - including the South Pacific, Latin America, Antarctica, outer space and the moon - have been declared nuclear weapons-free in other treaties.
The starting point for a critical analysis of the preemptive doctrine should be the crisis of this system based on deterrence. Deterrence is, to some extent, a victim of its own success. During the Cold War decades, the system worked well to avoid a nuclear conflict between the two blocs. Nowadays, although it would be far-fetched to say that deterrence is obsolete, its role in the avoidance of conflict between the two major nuclear powers has changed - one of the considerations that probably caused the Bush administration to withdraw from the Anti-Ballistic Missile Treaty.
But the system of deterrence shows its limits, especially vis-à-vis terrorist groups, in respect of which legal and political means of coercion and persuasion are not effective. Terrorists are not subject to inspection and arms control, and their aim is precisely to launch as devastating a surprise attack against civilians as possible. Moreover, the terrorists' attempt to obtain weapons of mass destruction (WMD) has given their non-deterrability an altogether new dimension. The preemptive doctrine is therefore a response to this new phenomenon in a context in which proliferation of WMD technology has gained momentum, with some 35 countries capable at present of developing nuclear weapons according to the International Atomic Energy Agency (IAEA). The central argument in the National Security Strategy was based precisely on the need to adapt the law to a changed reality.
The real challenge is therefore to identify ways of dealing with this threat that are effective from a national security point of view and that can counterbalance the strategic need for preemption. As mentioned, there is a close link between, on the one hand, proliferation of WMDs and the consequent increase in the risk of terrorist groups obtaining them, and, on the other, the resurgence of preemption in the national security strategy of those states that are the most likely targets of the terrorists. The non-proliferation regime is at present beleaguered by weak enforcement mechanisms. Compliance of state parties to the NPT, for example, is based on the implementation of the safeguards agreements, which state parties have to conclude with the IAEA. The limits of this system have been shown by the recent crises with North Korea and Iran. In the case of the CWC, monitoring occurs mainly through inspections, although the Conference of State Parties ‘may recommend collective measures… in conformity with international law'. The Biological Weapons Convention does not yet have even a proper verification system in place.