Jan 3, 2008

international law and "anticipatory self-defense"

In "National self-defense, international law, and weapons of mass destruction," in the Chicago Journal of International Law, Spring 2003, Thomas Graham Jr. declares that the Bush Doctrine of preemption isn't justified under international law. In a key passage, he analyzes Israel's attack on the Osirak reactor, which succeeded at largely thwarting Saddam's nuclear ambitions. Though strongly condemned as a violation of international law, did its success merit the action? Even adopting consequentialist logic, Graham argues it would not.
However, this hindsight view is not a sound basis for a rule of law. Otherwise, nations around the world will seek nuclear weapons, claiming self-defense, on the basis of the propensity of some nations to engage in preemptive attacks allegedly justified under international law, and will thereby destroy the Nuclear Non-Proliferation Treaty ("NPT") regime that is essential to world peace and security. Such nations would heed some variation of the statement, perhaps apocryphal, but sometimes attributed to George Fernandez, the Indian Defense Minister, that "before one challenges the United States, one must first acquire nuclear weapons." It would be deeply contrary to the interests of the United States, as well as the interests of the world community, to encourage such a psychology. Also, there is the question of how to respond to a threat emanating from within a country but not from its government-for example, a country too weak to suppress a highly sophisticated terrorist organization operating within its territory. Could international law countenance an act of anticipatory self-defense, otherwise justified, against the territory of such a state and over the wishes of the government on the ground that the government in question was not in control of its own territory? This presents a difficult issue.
For those inclined to see the current Iraq conflict as a "test case" for the Bush Doctrine, or for debaters looking for a different angle on the current resolution, Graham's article is worth reading in its entirety.


LD n00b said...

There seems to be a logical fallacy in his arguments. To say that Israel's prevention of Iraq's aquisition of nuclear weapons sets a precident for every country to aquire nuclear weapons as a defence against other state's militarization is naive. Iraq had attacked Israel in at least 3 wars of agression in less than 40 years ('48, '67, '73, and I think I'm still missing a few) and did not even officially recognize its right to exist. These exceptional circumstances mean arguing that it sets a precident for other states is rediculous!

Israel's circumstances are much different from the United State's, and while the US definitly has commited to preserving Israel's security as the only properly-functioning middle eastern democracy, (the "threat" in the resolution doesn't have to be directed to the US itself, as you pointed out earlier," Israel is by no means a good model for any other state's nuclear non-prolifitory situation, expecially not this ones.

-LD n00b

Jim Anderson said...

I see where my summary has slightly confused the issue. This should clarify:

The Osirak attack was strongly condemned in the international community, even though the results were, in hindsight, positive. Graham is arguing that using the logic of hindsight to change international law to allow preemption for all is what starts the slippery slope. In effect, he's saying Osirak is only a precedent if we make it one.

Furthermore, it's not such a stretch to say that one reason Iran has been seeking nukes is to defend itself against the United States, which has its own history of aggression--and preemption--in the region.

alana said...

do you know where i could find the full article online?

LD n00b said...

I get what you're saying. But I am confused about why nations would try to aquire nuclear weapons in order to prevent strikes intended to stop them from getting nuclear weapons, since trying to get them is what provokes the strikes in the first place! If Saddam had come clean and iven full access to the UN inspectors, then he'd still be alive.

Also, how is setting such a precedent neccasarily bad for the united staes? Wouldn't it be wiser to encourage proliferation amoung naitons that don't interfear with otu interests? After all, no two nuclear powers have ever gone to war. Look at the US and Russia in the cold war, or better yet India and pakistan before and after they each aquired nuclear weapons.

-LD n00b

Jim Anderson said...

To your first point, North Korea has successfully acquired nuclear weapons, yet has not been invaded by the U.S., and are not likely to be invaded anytime soon--because they have nukes. So that argument empirically fails.

To your second point, nations change alliances all the time. The United States supplied weapons to Saddam Hussein to help him fight off the Iranians. There is no guarantee that allowing a "friendly" nation to proliferate will mean that the nation will remain friendly.

Also, "friendly" nations with weak governments are at risk of nuclear theft. Russia, for example, is not doing such a great job of protecting its nuclear stockpiles. It may just be a matter of time before a terrorist group steals a nuclear device.

LD n00b said...

Yes, but North Korea provoked hte potential for an invasion when it developed them. And there is a slight chance the US might use military action if it saw an opportunity to take them all out in one blow, though I admit it's unlikely. However, North Korea NEVER have been at risk of being invaded to prevent it from aquiring nuclear weapons.

It's alot like saying "The government has started invading people's homes to confiscate illegally owned heavy machineguns, so I should buy illegal heavy machineguns to defend myself against AFT agents. The easier solution is just not to buy any illegal machineguns and not make the government want to invade your home!

It's an "a" does "b" but i should do "a" to prevent "b" from happining falicy.

True, I was being an unnsuccesful devil's advocate with that second point, but it hinges on the first point anyway.

However, this conversation has inspired me for another NEG argument: It is in the interests of (universal) justice for every country to have nuclear weapons, because there will then be no war (beetween states) which will be good for the global economy, save lives, and ecourage political change for the better, since dictators often control countries on a fear-based "siege" mentality.
That would be a fun one to run!

-LD n00b

PS addressing the point of stealing weapons: Even though it doesn't apply in this conversation, the issues of terrorists aquiring weapons proubably will come up in some debates. I recently read in a magazine (ieee spectrum, an electrical engineering magazine, i think, or maybe the more mainstreem TIME-- im sure google can dig it up either way, though.) that the smaller and easier to transport a nuclear weapon is (like the kind a terorrist would need), the higher maintanence it is because it requires more detailed circutry and the cuircitry erodes faster because it has to be kept close to the radiation source in a more compact device, and radiation damges electronics. Basicly, if an aff runs a suitcase-nuke-aphobe on you, you can retaliate wit the fact suitcase nukes are higher maintanance then the kind you would put in an ICBM.

Jim Anderson said...

Presumed in your argument is that the nation pre-emptively attacking is doing so rightly. To use your example, since the police were allowed to use "no-knock" SWAT-style raids, more and more innocent people have been killed or injured in the process--when they raid the wrong house, or just used excessive force. You're essentially saying that it's wrong for people to defend themselves against the police.

To sum it up, if we lower the bar to allow preemption within a framework of international law, states will seek nuclear weapons, whether the response is rational or not, and the risks of proliferation will multiply. Simply because we think that they shouldn't, or it's fallacious if they do, won't stop them from trying. Nations (and people) do logically fallacious things all the time.

LD n00b said...

But wouldn't not doing anytihng give them a green-light to do so as a defence against other agression?
I understand what you're saying about an illogical reaciton, but how do you prove someone will have a specific illogical reactioin?

I thought of a good question through this discussion, though. If the US invaded under the false idea that they were developing nuclear weapons, is that "using military force to prevent the aquisiion of nuclear weapons?" It wouldn't actually be preventing the aquisition, but that was its intent. I could see that coming up in many debates, so what do u think? Perhaps it is neccasary to define "to."