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PREEMPTIVE STRIKE ON A BIOLOGICAL
TARGET: CHOICES AND CONSEQUENCES
Virginia Harris
Department of Molecular and
Microbiology, Biodefense Program, George Mason University, Fairfax,
Virginia
| Introduction
For the United States, participation in International Nonproliferation
efforts carries the requirement to adhere to the same standard
it applies to everyone. But what if the US knew that an entity
(state or nonstate) planned to use a biological agent against
its citizens? Does the United States have the right to destroy
the facility where the supposed agent resides? What notification
does it owe the international community? What are the considerations
the US should make before such a decision is finalized?
Background
Left on its own, nature can permit biological agents to cause
devastating death and destruction. History is replete with examples
of these inherently dangerous entities killing millions. However,
in today’s political environment, we have to face the reality
that these same agents may be used as emissaries for a purported
enemy’s message. Transnational organizations such as Aum Shinrinkyo
and al Qaida have expressed such intentions and demonstrated some
level of capability to execute such missions.
The simple answer is to limit who has access to these and other
weapons of mass destruction. But, unlike other WMD agents, biological
weapons have the added difficulty of possessing a dual-use nature.
Countries can justify a biological industry or defensive program
with legitimate purpose excuses and then run an offensive weapons
program. By gathering the necessary equipment, and the proper
personnel, a rogue
State can secretly amass a significant biological weapons program
without raising suspicion. Even if the international community
does have concerns, a State can easily hide the offensive research
under legitimate programs, or simply suspend the offensive program
until suspicion has lessoned and monitoring is reduced.
This was demonstrated by the Soviet Union when it ran an extensive
biological weapons |
program for years without the
knowledge of other nations. It hid its offensive military research
within legitimate civilian programs, often hiding a program’s true
nature from its own workers.(unsigned 1992) Although the U.S. had
suspicions, it wasn’t until Boris Yeltsin admitted to the offensive
biological program in 1992 that those suspicions were validated.
The international community is faced with the potential for
a similar subterfuge in the current political environment. To
minimize this potential, it is necessary to identify a means to
keep the door open to legitimate States as they pursue defensive
scientific investigations while closing the door to terrorist
organizations pursuing biological weapons programs.
Changing Strategies in a Changing World
Unlike conventional armament, biological agents can reach beyond
the usual targeted military to unsuspecting civilian. And much
like nuclear weapons pushed nations to develop a new approach
to defense policy, biological weapons are re-defining military
strategy development as well.
The Proliferation Continuum
Figure 1: The Proliferation Continuum. Nonproliferation efforts
are heaviest at the early stages, but continue from Decision all
the way to Employment. Counterproliferation ranges from the beginning
to Employment, but is more focused on the stages of Infrastructure
and Development to Deployment. Consequence management is used
after WMD employment. Source: Joint Chiefs of Staff, Joint Doctrine
for Combating Weapons of Mass Destruction, 2004.
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The 2001 National Strategy to Combat
Weapons of Mass Destruction recognizes the threat posed by biological
weapons and other WMD, and lays out a three pillar strategy of
nonproliferation, counterproliferation and consequence management
to counter that threat.(Bush 2002) Ideally, nonproliferation measures,
such as diplomacy and control regimes would eliminate the need
for counterproliferation and consequence management. However,
nonproliferation measures are not always successful. The U.S.
must therefore employ a strategy that acknowledges the proliferation
continuum (Figure 1) to navigate the pitfalls inherent in a path
filled with unpredictable and uncontrollable threats. (Staff 2004)
Nonproliferation
The continuum recognizes the importance of prevention and the
U.S. nonproliferation strategy relies heavily on multilateral
export control regimes and U.S. export laws to introduce a modicum
of prevention. These measures target the decision and infrastructure
and expertise development portion of the proliferation continuum.
Control regimes such as the Wassenaar Arrangement and the Australia
Group seek to provide guidance to member nations on export controls
for biological, nuclear, missile-based delivery systems, or other
WMD technologies. While the goals of these regimes are excellent,
many effectiveness gaps exist. The most significant is enforcement.
These non-binding and voluntary multilateral control agreements
offer consensus control lists and export guidelines with enforcement
dependent on the individual nations. If export procedures could
be modified to require all regime members to approve each export
license for technology listed on the control lists or to states
of concern, the overall effectiveness of the regime could be strengthened.
Penalties for member states that violate the organization’s guidelines
could also assist in assuring compliance with regime procedures.
Enforcement of timely reporting requirements would also assist
in regime effectiveness. It would strengthen the no-undercut policy,
reduce states shopping around for technology, and aid in the monitoring
of technology buildups.(Office 2002) While these control regimes
have had limited success in slowing or preventing the proliferation
of some technologies, they are inadequate for biological weapons
technology based on its dual-use nature. However, strengthening
the regimes where possible could serve to slow biological proliferation.
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Legality of a Preemptive Strike
Based on customary international law regarding preemptive strike,
a nation’s participation in strong nonproliferation efforts, including
export control regimes, is essential to its role as a responsible
member of the international community. Preemptive action should
not be undertaken until all attempts have been made to eliminate
the threat through other means. (Webster 1841) This includes exhausting
avenues available through organizations such as the UN.
Webster also argued that the threat must be imminent. The definition
of imminent becomes critical and it is often under contention
in the international community. For Israel the threat from Egypt
was seen as imminent before it began the 6 Day War, whereas the
threat from Iraq’s nuclear reactor was not viewed as imminent
and therefore no action was initiated. Through his national defense
guidance documents, President Bush argues that the changing threat
requires we redefine the concept of imminence. Using UN Article
51 as a reference, a nation must actually endure an attack before
it can invoke self-defense. Given the potential devastation of
biological agents, nations can ill afford to wait until they are
attacked. U.S. defense documents recognize this and define a preemptive
option against WMD targets if U.S. interests are threatened.
International Response
The International Court of Justice has weighed in on some aspects
of preemptive strike. Under a variety of cases, the Justices have
both enforced the responsibility of a State to be forthcoming
with information, and at the same time, protected it from acts
of retribution or invasion in the name of self-defense. (Justice
1986)
The International Court of Justice also enforced a self-defense
interpretation of Article 51 in response to a case regarding the
legality of threatening to use or using nuclear weapons, the court
did acknowledge there was no specific prohibition against self-defense
activities. While it has historically taken a conservative approach
to interpreting the right of self-defense, the court has left
the option open for preemptive strikes in very specific cases.
However, international courts have issued no clear and decisive
directive for deciding when a preemptive strike is acceptable
and legal.
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| Past and Present Preemptive Policy
President Kennedy considered a preemptive strike against Cuba
when Soviet missiles were being assembled there. Based on recommendations
from advisors he chose to employ a blockade against Cuba instead
of risking military escalation. Even the blockade was a form of
preemptive action, since it was enacted in the absence of an actual
offensive from Russia or Cuba. In 1998 President Clinton used
a preemptive strike to degrade and reduce the WMD threat from
Iraq.
This is not to say that leaders have a blank check for use of
force. While U.S. leaders have taken actions they deemed necessary
to protect the nation, they have not and should not do so without
a full understanding of the consequences, and without involving
the international community as much as possible. The presence
of the preemptive strike option in the U.S. strategy in no way
negates the necessity and usefulness of the other elements.
A preemptive strike against a biological target is not a tool
that should be considered lightly. Even if the action is taken
in self-defense, such a preemptive strike may have far reaching
effects. For one thing, the U.S. must consider the local and global
health impact that a strike on a biological target would cause.
In a worst case scenario, a deadly agent such as Smallpox could
be released onto an urban population, touching off the potential
for a world-wide epidemic. And while it may be advantageous to
strike first to remove the threat of biological weapons from the
battlefield altogether, both scenarios require careful consideration
of the collateral effects resulting from a strike.
Preemptive Strike as a National Security Tool
Although the emphasis of the U.S.’ overall strategy to counter
WMD is weighted toward nonproliferation actions, it is clear that
gaps in nonproliferation capabilities, require that a preemptive
strike remain an option. This, along with the need for a nation
to defend itself, makes it imperative that the President and the
military retain access to all options available to them. If intelligence
indicates that al Qaida has identified a specific target and the
opportunity is right, a preemptive strike may be the correct action
to remove the threat. But each instance will have to be considered
after weighing the benefits of the strike against the potential
consequences
Bush, G. W. (2002). National Strategy to Combat Weapons of Mass
Destruction, The White House
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Claire, R. (2005). Raid on the
Sun, Broadway Books.
Justice, I. C. o. Corfu Channel Case (Merits): Case Summaries, International
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Justice, I. C. o. (1986). Case Concerning the Military and Paramilitary
Activities
in and Against Nicaragua (Nicaragua v. United States of America),
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Office, G. A. (2002). Nonproliferation: Strategy Needed to Strengthen
Multilateral Export Control Regimes. G. A. Office.
Schneider, B. R. (2004). Counterforce Targeting Capabilities and
Challenges. The Counterproliferation Papers Future Warfare Series,
USAF Counterproliferation Center.
Staff, J. C. o. (2004). Joint Doctrine for Combatting Weapons of
Mass Destruction, Joint Publication 3-40, Joint Chiefs of Staff.
unsigned (1992). Memorandum re Soviet Biological Weapons Programs.
State Department FOIA Database, State Department
Webster, D. (1841). Enclosure 1 - Extract from note of April 24,1841
L. Ashburton, Yale Law School: Letter from Mr. Daniel Webster to
Lord Ashburton regarding the sinking of the Caroline.
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