Weapons of Mass Destruction and Preemptive Self Defense

January 29, 2010

Admitting that a state can use preemptive self defense in cases of traditional terrorism[1] would equal to accept the death of international law and jus ad bellum, thus transforming an exceptional rule of international law into a permanent one. Further, admitting that a state is entitled to use preemptive self defense in cases of terrorism attempting to use weapons of mass destruction (WMD) is a statement based on false premises.[2]

It is obvious that as an internal policy matter a state should exercise preemptive self defense if its citizens are under a real threat of imminent attack with WMD by terrorists. Notwithstanding the advantages that invoking a preemptive self defense strategy can have for a state from a realist and power politics perspective, I believe, however, that an attack of the nature it supposedly aims to prevent is very unlikely to occur for two basic reasons: motives and capability.

First, with regard to the motives, it is unlikely that a terrorist attack with a WMD fits the purposes, objectives, goals and motivations of a terrorist group. I believe that a terrorist organization thinks more in tactical terms than in highest-destruction-possible terms. Total destruction projects are too costly and misleading with regard to the aims of such organizations. Terrorist organizations don’t simply kill people; they kill people with a purpose, no matter how stupid that purpose might be.

Second, it doesn’t seem plausible that a terrorist group can build and detonate a WMD. Several challenges lay ahead them, such as obtaining enriched uranium, plutonium, or any other required materials. Also, it is not likely that a terrorist group will count with the human capital necessary to build such type of device. Further, it is not possible to learn to fabric nuclear bombs in magazines. Access to that type of information is difficult, and requires a huge effort. I think that terrorists’ utterances declaring their intention to acquire WMD are more likely part of their verbal terrorist warfare, than a real and imminent threat.

It can be argued, contrary to my analysis, that a terrorist attack is almost inevitable, and that sooner or later it will come. Notwithstanding the unlikeliness of that possibility, it is, nevertheless, possible. If that is the case, what are we going to do about it? Going to war with any particular country will not prevent the attack, unless it is absolutely clear that a rogue state is sponsoring a terrorist organization in the construction of WMD. If that were proven with evidence beyond reasonable doubt, then it is the United Nations’ Security Council who should act, and not a particular state invoking article 51, as there is no extreme necessity situation in that case, and as, the Security Council could act within its powers in the pursuit of the disarmament of the rogue state.

Therefore, I think that the White House defense of the right of preemptive self defense is flawed and cannot be enforced without a fundamental violation of international law.

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[1] By this I mean terrorism without a threat of using WMD.

[2] A different case is a situation where an imminent attack can trigger the self-defense right under the anticipatory self-defense doctrine. Preemptive self-defense and anticipatory self-defense must not be confused. Preemptive self-defense does not require the imminence element that anticipatory self-defense does require.