Preemption’s Legal Troubles
If we don’t have the right to destroy Iran’s nuclear program, we need new rules.

Defense Secretary Leon Panetta on 60 Minutes, January 29, 2012 (CBS News)


Mario Loyola

Secretary of Defense Leon Panetta recently delivered the Obama administration’s clearest warning yet on Iran’s nuclear program. In a 60 Minutes interview he said: “If they proceed and we get intelligence that they’re proceeding with developing a nuclear weapon, then we will take whatever steps are necessary to stop it. . . . There are no options that are off the table.” As welcome as this clear warning may seem, it rests on legal grounds that are ultimately untenable — and potentially catastrophic.

The Iraq war roundly discredited the notion that inferential intelligence assessments are a valid basis for preemptive military action against a WMD threat. Tehran has helped remediate the problem by uniting the West, lending some degree of legitimacy-by-consensus to possible strikes. But that does not remove the obstacle that generally accepted principles of international law nowadays pose for any effective regime of counter-proliferation.

The “general principle” for preemptive self-defense is that you can preempt an “imminent attack” but nothing more. That rule is ridiculous, and will sooner or later prove suicidal. Because of the instantly deliverable nature of nuclear weapons, waiting for firm intelligence of an imminent threat is a reckless game of chicken in which the claimed right of preemption is triggered only when it is almost too late to make any difference.

The deterrent value of a preemptive threat is greatest when it can be interposed early, long before an attack is “imminent.” In the run-up to the Iraq War, the debate over whether Saddam’s WMD posed an “imminent” threat was highly misguided, but it nonetheless derailed our diplomacy, showing the practical importance of having international law on your side.

The right of early preemption against threats like Iran’s nuclear program must become an international norm of general acceptance if preemptive threats are to have any deterrent value. Current norms — and the diplomatic strategies derived from them — have only incentivized Iran to sprint toward nuclear weapons. The strategy of increasingly onerous sanctions may be painful for Iran, but it implies that military strikes are off the table as long as further sanctions are in prospect. Thus, starting with the first Security Council sanctions in 2006, Iran knew that it had several risk-free years ahead of it to develop WMD.

The only principle that can justify early preemption against a WMD threat is one that calls on dangerous regimes to be transparent in their dispositions. What you could call “regime transparency” is the key. This is the cardinal principle that was all along missing in the Bush administration’s justification for war against Iraq. The burden of proof should have been on Saddam to demonstrate the non-threatening nature of his weapons programs. In the long run, such a burden could be met only by a regime that was itself essentially transparent, in which the business of government was conducted in an orderly and law-abiding way.

Alas, neither international norms nor U.N. Security Council Resolution 1448 imposed any such obligation. The diplomatic debacle in the Security Council in the weeks before the Iraq War was thus foreordained — and it cost us dearly in strategic terms, nearly enough to jeopardize the entire war effort.