Crimes of War

August 20, 2002

Terence Taylor,
Deputy Director of the International Institute for Strategic Studies, and formerly a Chief Inspector for the UN Special Commission on Iraq

I think in a technical sense, the notion of pre-emptive self-defence against a possible attack by weapons of mass destruction can be justified within the current law. Let's put on one side for the moment perceptions about the threat posed by Iraq. Let's imagine that in an abstract way, a country is threatened by nuclear weapons, and from all the information available to those who have to make the decisions, they are convinced that their adversary is going to attack with a nuclear weapon. In self-defence I think they would be perfectly justified in eliminating that threat – in other words, preventing the nuclear weapon from being used. Of course I'm not advocating that course of action, necessarily, but I think any government would be justified in defending its citizens if it knew quite clearly that theywere going to be attacked in this way.

I think it would be easier to make the case in relation to nuclear weapons because of the devastating power of a nuclear weapon – not only killing people but widespread destruction, environmental damage, one knows well all the features of nuclear weapons, so in my view it would be an irresponsible government who would do nothing with this information available in these circumstances. In the case of a biological threat, I think the government and those taking the decisions would have to have a pretty convincing case that the threat to their citizens was of a magnitude that would merit pre-emptive action to prevent that from happening. With biological weapons, just in a purely technical and scientific sense it's a little bit more challenging but one could envisage circumstances where perhaps the state might have some aerial means of delivery, delivering it by aerosol spray which potentially by using the right agent could kill tens of thousands of citizens. If a state had this information available, again it would be in my view irresponsible for the state not to take action to prevent that delivery of that weapon from taking place.

Of course in both these cases the government is constrained by the obligation to take action which is proportionate in the sense, not that there’s some military advantage to be gained, but to prevent the weapon being used and so it should have that specific objective. There may be other following action and so on but I think that's a fundamental point.

In the case of chemical weapons it's hard to argue. I think we get into a difficult area whether it's in a technical sense a weapon of mass destruction at all, it has very local effects and I think it's more of a conventional military character in the sense of the geographical spread of its effect. Politically it's described as one of the three weapons of mass destruction but there are all sorts of historical and political reasons for that which I think in relation to an interpretation of the law and the circumstances we’re thinking about, carrying out pre-emptive action because of the fear of a substantial strike, whilst there would be quite significant psychological effects, the actual basic effects may be limited to local and certainly not on the scale of biological or nuclear weapons.

I think there is a kind of qualitative difference there but then perhaps if I reduce it right down, let's think of two states that border each other and one of them has very good information of conventional military forces being used against a major part of their territory, which if they lost it would be a serious damage to their national defence. That's a hard decision to take, whether they should pre-empt that action. They can take political action, issue warnings, deploy forces but deploying across the border into another state's territory, I think this is where it gets more challenging. There's no question in my mind if we're looking at nuclear weapons and I think in certain circumstances biological weapons, then it would be irresponsible of a state, provided the information is believed to be good and sound, not to take action, because of the very widespread and hugely devastating and catastrophic effect.

Q: In the situation that you are describing, you have credible evidence of an imminent attack. But what the Bush administration is attempting to lay out is something a little more far-reaching – they are saying that the mere possession of these weapons by either terrorist groups or regimes that are beyond the pale of law like Saddam Hussein constitutes a threat in itself that might justify pre-emptive action.

Well if you were to look at the UN Security Council summit of January 1992, its declaration said that the proliferation of weapons of mass destruction - in this case it means nuclear, biological and chemical - was a threat to international peace and security, so on those grounds, and if you were to take that as perhaps your more recent starting point, it is possible to justify military action. They don't need to refer back to the Security Council. This is what is used now in relation to Iraq. If you want to take action against Iraq, it is believed they do have weapons of mass destruction programmes, ready to use or not, then it would be justified to use military action, because it would be a threat not just to the United States in this case but neighbouring states and others. So I think there is a case to be made based on that UN Security Council declaration.

I would agree that it's easier if the use of the weapon is imminent, meaning there's a missile that has a warhead and one is ready to press the button and it’s ready to come, taking out that missile launch site would be a perfectly reasonable thing to do. It’s very hard to argue against that. Where it gets difficult is where you're preventing it getting to that stage, getting to be in a warhead and being put on a missile and so on – but there I think there is a strong case to be made. In 1992, in the immediate aftermath of the Gulf War, and the revelations over the Iraqi weapons of mass destruction programmes, at that moment there was unanimity in the Security Council that the proliferation of weapons of mass destruction was affecting international peace and security, therefore military action could be taken.

It didn't define the exact circumstances. It didn't say these weapons had to be ready to be used, it just referred to the proliferation of weapons of mass destruction – meaning all the facilities, all the technologies that go along with it in order to build weapons. I think that there is a case to argue that pre-emptive action does have a legal basis in these circumstances. I put on one side whether it's wise politically or not to do it, but certainly I think there is sound legal basis given that declaration in 1992.

Q: So you don’t think that they would need another resolution in the Security Council?

I think it would be politically wise to do it, but I think they have the legal basis to proceed and in my view that declaration has legal authority from January 1992. It wasn’t disputed, it was quite clear that Iraq had these weapons of mass destruction, some ready to use and some not ready to use at that time. The chemical weapons were ready to use, the biological weapons were ready to use, but the nuclear weapons were not at that time, yet still this there was this resolution, and to me that could be a sound legal basis for taking action. I think there's a great deal of wisdom in trying as it were to maintain that consensus in relation to the proliferation of weapons of mass destruction. I think it would be for those that subscribe to that resolution which has legal force, they can hardly turn round and say, well in certain circumstances having these weapons of mass destruction is now justified when it wasn't before.

I'm being in some ways simplistic, trying to reduce the legal case to its simple basics, and the difficulty of course in this context is being consistent. I just mean this as a point of hypothetical argument, but India and Pakistan have nuclear weapons capabilities, so would we say that this proliferation would justify in some circumstances military action against those two countries? Well I think it's completely unwise to embark on that, it's rightly not even being contemplated. But I think that one has to be careful. You can see how one could easily get into difficulties by too simplistic an interpretation.

But to states that are clearly threatening their neighbours and maybe in the longer range others, in the case of regimes such as Iraq, this is a very different circumstance.

Q: I mean it seems to me the justification that you are giving for possible American action against Iraq is that it would be in the general good, rather than something that poses particularly a threat to the US?

But that a judgement, that's their judgement to exercise. I think there are varying assessments of the threat that Iraq poses in these circumstances, and the Americans have a particular interpretation, let's see why. This Iraqi regime has already used weapons of mass destruction – they’ve used them against the Iranians, they’ve used them against their own people. And so here is proof of use, proof of extensive programmes, very worrying extensive programmes. They’ve already invaded a neighbouring state and the track record is not very promising to say the least. So the Americans, in my view rightly, believe that military action is justified – and it's not only the Americans, I think the United Kingdom might take a similar view, although they might think about whether military action is wise or not but that's another matter.

Whether you can do it, whether you have got the forces available and all these other factors come into play -- even though it may be legally justified, it doesn't mean necessarily that we will do it. But I think a stated intention which stresses the reinforcement of a norm, reinforces a Security Council resolution, and sends a signal to the Iraqi regime that their weapons of mass destruction programmes are seen as a sufficient threat that we’re even ready to go to the extent of military action – I think that is a very good way of reinforcing a norm.

Q: Would you be happy with this law being applied universally? Some people would say that if it becomes a general principle of international law,, then a lot of what's been achieved in the international system since 1945 could be swept away.

I disagree. I don't believe it will be swept away. I view it more as a case of reinforcing norms. And there are other ways of trying to deal with these illegal weapons programmes, and you can see that happening in the case of the Korean peninsula, where there is a different approach being taken. We all know that President Bush declared North Korea to be part of the "axis of evil" which is expressing a very strong view about the North Korean missile programmes and the proliferation of the technology that can deliver weapons of mass destruction – and they’re thought to have weapons of mass destruction, anyway a putative nuclear programme at least. But a different approach is being taken, I think military force being used against North Korea is a remote possibility, and I think that each case has to be judged on its circumstances.

Iraq is an extreme case – the state has actually used the weapons, has developed capabilities, has invaded a neighbouring state and I think we have to judge the exercise of the rights under this principle by each individual case, and I think that Iraq is an extreme case. It's very hard to find another case. India and Pakistan have a confrontation over a particular issue, over Jammu and Kashmir and cross-border terrorism, so that's a bilateral confrontation. Nuclear weapons are the background but I think that’s not the same case at all.

You can't rule out even in that case pre-emptive action for example by India to prevent cross-border infiltration, but I think, again, many would argue that's politically unwise to do it and I don’t think it would achieve their objective. On the other hand, the Indians have a point, many would say, with some justification. I'm not advocating that India should take military action. I mean it would be an unwise move but I think you have to think of extreme circumstances under which the legal right or the norm, whichever way you want to put it, to carry out military action to prevent your country from being attacked by a weapon of mass destruction, as long as that evidence is good and sound and you believe it to be the case, then it could apply to anyone. I think the Americans would think that was OK too and I don't think that is a regression.