The Newport Papers 

Eleventh in the Series 

The International Lgal Ramifications 

of 

United States 

Counter-Proliferation Strategy 

Problems and Prospects 

Frank Gibson Goldman 

NAVAL WAR COLLEGE NEWPORT, RHODE ISLAND 
© 1997 Frank Gibson Goldman 

Printed in the United States of America 
Contents 

Foreword ..... 

Acknowledgments 

l Counter-Proliferation: Reconsidering the Traditional 

· Vll 

· lX 

U.S. Approach to Nuclear Nonproliferation . . . . 1 

IT. The Traditional U.S. Approach to Nonproliferation. . . . .. 5 

ITl Counter-Proliferation: Defining the Issues . 9 

JrV. Intervention and Counter-Proliferation ... .11 

v. Counter-Proliferation and the Concept of Anticipatory 

S elf-Defense .... ........ ....... . 21 

Vl Counter-Proliferation and the Concept of Reprisal 39 

VH. Counter-Proliferation and War .... .45 

V][][!. Conclusions and Recommendations . . .63 

Notes .67 

About the Author .79 

Index of Newport Papers · 81 
Foreword 

In this Newport Paper, Frank G. Goldman questions the adequacy of 

traditional nonproliferation strategies to deter the spread of nuclear weapons. 

While the subject is sensitive and the proposed solution perhaps radical, Mr. 

Goldman's argument is one that merits discussion. He examines counter-proliferation as an alternative, supplemental strategy-a potentially valuable 

approach which the nation should not dismiss. Acknowledging the severe 

obstacles in the way of its employment, he contends that counter-proliferation 

offers a way to fill an important policy void. 

Mr. Goldman's careful and responsible exploration of the international 

legal aspects of counter-proliferation makes this work especially valuable. 

Its publication should stimulate productive thought and generate insight 

on a su bj ect vi tal to the securi ty communi ty, precisely the goals of the Naval 

War College's Newport Papers . 

. R. S ark 

Rear Admiral, U.S. Navy 

President, Naval War College 
Acknowledgments 

I would like to express my gratitude to the individuals without whose 

help this project could not have been completed. First, the guidance of Dr. 

Joseph Pilat of the Center for National Security Studies at the Los Alamos 

Nuclear Laboratory was crucial to the production of this paper. Dr. Pilat 

provided advice on the study's framework, analysis, and conclusions. 

Professor David Wippman of Cornell Law School was extremely helpful 

in directing me toward the sources of international law that play a role in 

the counter-proliferation equation. Professor Jeremy A. Rabkin of the 

Government Department at Cornell University provided commonsense 

advice throughout the project, as did Dr. Mitchell Reiss of the Woodrow 

Wilson Center. Dr. Bruce Blair of the Brookings Insti tu tion also furnished 

direction as the project approached completion. Thank you to Dr. 

Lawrence Scheinman of the U.S. Arms Control and Disarmament Agency 

for sparking my initial interest in the area of nonproliferation during my 

undergraduate days at Cornell University. 

Of course, any flaws in this study, either factual or analytical, are solely 

those of the author. 

I would also like to thank the following individuals for their support 

throughout this sometimes tortuous process: Lynne Wurzburg, Esq., Dr. 

William G.D. Frederick, Roland Young, Esq., Ms. Maria Kelly, and Sarah 

A. Wagman, Esq. I also must express my deepest gratitude to Mrs. Geralyn 

Frederick, whose strength throughout her son's academic career has been 

an inspiration. 

This study is dedicated to Henry Goldman, M.D. 
I 

Counter-Proliferation: Reconsidering the Traditional 

U.S. Approach to Nuclear Nonproliferation 

F

OR NEARLY THREE DECADES the United States, in cooperation with 

many nations, has sought to prevent the proliferation of nuclear 

weapons. The premise of this endeavor has been that this nation, its allies, 

and the entire international community are most stable when as few states 

as possible possess these weapons. By and large, nonproliferation efforts 

have proved successful inasmuch as only a handful of statesl have developed a nuclear capability since the signing of the Non-Proliferation of 

Nuclear Weapons Treaty (NYf). 2 The Clinton administration, as its predecessors, has promised to maintain this commitment. In a 1993 address to 

the United Nations, President Bill Clinton announced his intention to 

make nonproliferation a priority of the administration.

3 He reiterated this 

commitment to the nonfroliferation regime and the NPT in a foreign policy 

address in March 1995. 

However, with the conclusion of the Cold War and the dismantling of 

the political foundation that it provided, questions have surfaced about the 

continued viability of this "nonproliferation regime." Given the changes 

in the international political order, can the traditional nonproliferation 

strategies succeed? What alternatives or supplements to these traditional 

strategies may the United States and the world community implement as 

they attempt to fortify the nonproliferation regime? This paper explores 

the international legal ramifications of one suggested supplemental strategy: counter-proliferation. 
The Newport Papers 

Counter-proliferation may be defined as measures ranging from economic embargoes to military intervention designed to inhibit, restrain, or 

destroy the nuclear development programs of a potential proliferant.5 

These methods include passive measures such as export controls designed 

to delay the weapons design program of a potential proliferant. They also 

may include more aggressive techniques such as the surreptitious introduction of computer viruses designed to disrupt the proliferant's computing capacity. Most dramatically, counter-proliferation efforts include the 

use of military force against those nations or groups devoted to the development of a nuclear weapon. This study addresses all of these matters but 

focuses on this last, most aggressive form of counter-proliferation. 

The traditional nonproliferation regime concentrates on inspections 

and the accounting of fissionable material by the International Atomic 

Energy Agency (IAEA) in addition to the use of unilateral and multilateral 

export controls which are designed to limit the unregulated spread of 

nuclear materials. The traditional regime also relies upon the commitments of nonnuclear states, pursuant to the NPT, to forego the construction 

of nuclear weapons.6 In contrast to these relatively passive forms of nonproliferation, which require the cooperation of the nonnuclear states, 

counter-proliferation measures, if implemented, would be designed to 

prohibit directly the acquisition, development, manufacture, testing, and 

deployment of a nuclear weapon by the potential proliferant. 

A strategy of counter-proliferation would break with traditional U.S. 

nonproliferation efforts by aggressively seeking to prevent the development of nuclear weapons. U.S. policy makers currently are studying this 

strategy as an alternative or supplement to the present reliance on the 

traditional regime? The U.S. Department of Defense, through its CounterProliferation Initiative, is exploring what role counter-proliferation strategies and tactics will play in post-Cold War U.S. defense policy.8 

This study posi ts a three-part thesis. First, after an analysis of the current 

tenets of international law, the study argues that a unilateral U.S. application of an aggressive counter-proliferation strategy is inconsistent with 

current norms of international law. Second, despite this inconsistency, 

policy makers in the United States should not abandon the counter-proliferation strategy, because an occasion may arise when the United States will 

be unable to tolerate the imminent development of a nuclear weapon by an 

adversary with goals adverse to the vital interests of this nation. Third, 

however, the study contends that U.S. policy makers should not attempt 

to mold international law through diplomacy so that counter-proliferation 

2 
Counter-Proliferation Strategy 

becomes normatively acceptable throughout the international community. 

While such an endeavor is attractive at first blush, such a strategy, if 

successful, would be counterproductive to V.S. interests because it would 

permi t nations other than the V ni ted States to legi timately launch counterproliferation attacks, perhaps even against V.S. allies. While unilateral 

counter-proliferation efforts risk the condemnation of the international 

community, any attempt to legitimize counter-preliferation internationally might provide other states with the type of political cover needed to 

launch military attacks that are adverse to V.S. interests. 

3 

II 

The Traditional U.S. Approach to Nonproliferation 

B

EFORE COMMENCING a detailed examination of counter-proliferation, this paper must explain the workings of the traditional U.S. 

approach to nonproliferation and why this strategy, standing alone, may 

no longer be viable. 

U.S. Reliance on the Non-Proliferation of 

Nuclear Weapons Treaty (NPT) 

Two prongs comprise the traditional American approach to nonproliferation. The first relies on the NPT to ensure that signatory nations do not 

develop nuclear warheads. Nonnuclear states that submit to the NPT 

promise to forego the development of nuclear weapons.9 In exchange for 

this commitment, the nuclear states promise not to transfer nuclear 

weapons or assist other states in the manufacture of these weapons.lO The 

NPT also requires that parties submit to IAEA safeguards,

ll which take an 

accounting of the fissionable material possessed by each nonnuclear signatory state. The IAEA's task is to confirm that these states have not diverted 

fissionable material to a weapons development program. 

Generally, the NPf has been successful in achieving its goal that nonnuclear states will not clandestinely develop nuclear warheads. However, the 

record of the NPT regime has not been flawless. First, a few nations have 

not signed the Treaty and thus are outside its purview. India, which 

exploded a "nuclear device" in 1974, and Israel, which reportedly possesses 
The Newport Papers 

a small nuclear arsenal, have not signed the Treaty. Moreover, some states 

that have signed and ratified the NPT have resisted its provisions. Iraq 

clandestinely pursued a weapons development program during the 1980s. 

The IAEA only discovered the extent of this program in the aftermath of 

the 1991 Persian Gulf War. Iran, another NPT signatory, also has pursued 

a nuclear capability. 12 Most recently, North Korea has proven reluctant to 

abide by its NPT commitments, having prevented IAEA inspectors from 

thoroughly examining North Korean nuclear facilities to ensure that the 

North Koreans are not diverting fissionable material to a weapons development program. The United States, South Korea, and North Korea 

negotiated a framework to resolve this issue in October 1994. This agreement provided that North Korea would curtail its nuclear program in 

exchange for a $4 billion light-water nuclear reactor. The Korean Peninsula Energy Development Organization (KEDO), comprised of representatives from the United States, South Korea and Japan, was established 

to iron out the details of this agreement. Since its founding in March 1995, 

KEDO has grown to nine members, including Australia, New Zealand, 

Finland, Canada, Indonesia and Chile. Since its inception, KEDO has 

received over $87 million from its members, including $31.5 million from 

the United States Y 

In May 1995, the international community extended the NPT indefinitely. This extension represents a constructive development for the current nonproliferation regime. President Clinton noted that the indefinite 

extension "testifies to a deep and abiding international commitment to 

confront the dangers posed by nuclear weapons.,,14 While the NPT extension reinforces the current nonproliferation regime, the treaty's ability to 

contain the spread of nuclear weapons still is uncertain. Several nations 

remain outside its scope, most notably India and Israel. Several other states 

have skirted its provisions. Consequently, while the NPT is an important 

element in the international community's endeavors to control the spread 

of proliferation, it can not and will not guarantee that rogue nations will 

forego their pursuit of nuclear weapons. 

Export Controls 

The use of controls to limit the export of sensitive technologies which 

nations could employ in the production of nuclear weapons represents the 

second prong of the traditional U.S. nonproliferation strategy. The United 

States has implemented these controls both unilaterally through domestic 

6 
Counter-Proliferation Strategy 

legislation and multilaterally in cooperation with other states concerned 

about proliferation risks. An example of a multilateral organization that 

assists in the nonproliferation effort is the Nuclear Suppliers Group, which 

seeks to control the export of fissionable material to potential proliferants. 

Another multilateral organization that might have been employed to assist 

in the nonproliferation effort is the Coordinating Committee for Multilateral Export Controls (COCOM). Though this organization concentrated its 

efforts on limiting technological exports to the Soviet Bloc, its controls 

could have b een used against states pursuing the nuclear option. However, 

COCOM disbanded on 31 March 1995.15 Thus, controls on the export of 

dual-use technology have weakened. 16 In September 1995, negotiations for 

a replacement to COCOM were negotiated in Paris. This new organization, 

called the "New Forum," includes Russia among its memb ers. While 

Russian participation may be useful, doubts exist about that nation's 

commitment to the control of the spread of nuclear technology. "As the 

case of the Russian-Iranian reactor deal graphically demonstrates, Moscow 

has proven reluctant to deny its clients whatever hardware they want. At a 

minimum, Moscow can be expected to serve as the middleman for transfers 

of any technology that might yet be denied the likes of Iraq and North 

Korea but that can be sold to the former Soviet Union.,,17 China is not a 

member of the New Forum, due largely to U.S. concerns about its exports 

to Pakistan and Iran. The New Forum, while a useful organization, does 

not possess the means to enforce its provisions. 

The United States also takes unilateral measures in an attempt to control 

proliferation. For example, the Export Administration Act of 1979 establishes limi ts on the type and amount of sophisticated technology that V.S. 

manufacturers may export.18 Additionally, the Department of Commerce 

controls the export of sensitive nuclear technologies pursuant to the Nuclear Non-Proliferation Act of 1978.19 However, the Clinton administration, which has set the expansion of trade as one of its primary goals, has 

lifted export controls over certain sophisticated products. Furthermore, in 

1993, the standards that control the export of V.S. mainframe computers 

were eased to allow greater exports. Thus, the V.S. commitment to certain 

categories of export controls appears to be wavering. 

Moreover, two factors cast doubt on the ability of export controls to 

prevent the spread of sophisticated technology. First, many types of technologies are applicable to both civilian and military purposes. Preventing 

the export of such "dual use" items b ecause they might be used in a weapons 

development program is both difficul t and costly to V.S. business interests. 

7 
The Newport Papers 

Second, in an increasingly competitive global economic environment, 

exporters from other nations less concerned about proliferation risks might 

fill any void created by the unwillingness of the U.S. government to allow 

the export of sophisticated American technology. 

Weakening the Prongs 

The force of recent events has weakened both prongs of the traditional 

U.S. nonproliferation strategy. On the one hand, theNPT has not succeeded 

fully in calming fears of proliferation. On the other, the U ni ted States has 

eased its export control programs in order to enable a competitive trade 

policy. Given these realities and the fact that the geopolitical landscape 

differs markedly from the days of the Cold War, when both superpowers 

could influence their allies and client states on nonproliferation issues, the 

Clinton administration has identified a need to examine alternatives to 

traditional American nonproliferation approaches. Hence, the administration has decided to explore the area of counter-proliferation. On 7 December 1993, Secretary of Defense Les Aspin announced the Defense 

Counter-Proliferation Initiative. The Initiative explores the possibility of 

developing a more aggressive U.S. stance on nonproliferation.20 As part of 

this initiative, the Pentagon is to study new weapon s!Jstems specifically 

designed to destroy the assets of a potential proliferant. 1 For example, the 

Pentagon is researching weapon systems that could destroy hidden development sites.22 The Initiative also created an office within the Department 

of Defense to articulate and implement this strategy.23 

The current interest in counter-proliferation raises serious policy issues 

regarding both its status pursuant to international law and its political 

legitimacy in the post-Cold War world. These issues provide the framework for this study. This study will not address the likelihood of success 

of any U.S. counter-proliferation strike, for that question is beyond the 

scope of the paper, and research was not conducted on the likelihood of 

success or failure of such a strike. Rather, the paper concentrates on the 

international law aspects of counter-proliferation, assessing for those purposes whether a counter-proliferation strategy is advisable. Of course, U.S. 

policy makers must take into account the tactical and strategic as well as 

the legal particulars of any application of a counter-proliferation strategy. 

8 
III 

Counter-Proliferation: Defining the Issues 

The Legal Issues 

D

EFINED BY ONE SCHOLAR as "the body of rules and principles of 

action which are binding upon civilized states in their relations with 

one another,,,24 in ternational law is vi tal to the Uni ted States. This country, 

as a preeminent economic and military power, relies upon the rule of 

international law to provide a stable framework in which to conduct its 

international affairs. Without the existence of these rules, the United 

States, along with the other nations of the international community, could 

not conduct its affairs with any degree of certainty. The absence of such 

rules would create a chaotic environment in which nations would act 

without guidelines, and the possibility of violent conflicts would increase 

substantially. The existence of these legal norms creates a relatively stable 

environment in which members of the international community may 

conduct their affairs with some confidence. 

However, the implementation of a strategy of counter-proliferation 

would raise serious questions of international law, particularly in the public 

international law areas of intervention and self-defense, as well as in the 

area of the law of war and armed conflict. These questions include: 

• Would the world community recognize the counter-proliferation 

strategy as lawful? 

• If so, under what circumstances? 

• May an aggressive counter-proliferation policy exist in a world 

community predominantly based on the international legal norms 
The Newport Papers 

of sovereignty and nonintervention? Or have these norms deteriorated to the point where a counter-proliferation action would be 

legitimate under certain mitigating circumstances? 

• How are such measures addressed by international legal instruments, such as the Charter of the United Nations and the NPT? 

• What type of precedent would a coun ter-proliferation endeavor set 

for future acts of intervention conducted either unilaterally or 

multilaterally? 

• What recent precedents provide lessons for those nations considering the counter-proliferation strategy? 

The Realpolitik Questions 

Beyond these legal questions are several realpolitik issues which U.S. 

policy makers must address before implementing a counter-proliferation 

strategy. These questions include: 

• Would a counter-proliferation policy be desirable even if legally 

untenable? If legally tenable? 

• What ale the likely consequences of either exercising or announcing a counter-proliferation policy? 

• Should the United States implement a counter-proliferation strategy unilaterally, or should it attempt to b�d a multilateral coalition willing to undertake such endeavors? 

• More generally, what political costs are associated with counterproliferation? 

Without an understanding of the political dimensions of this issue, U.S. 

defense planners might develop a comprehensive counter-proliferation 

mili tary s tra tegy which, for practical poli tical reasons, would be impossib Ie 

to implement. 

10 
IV 

Intervention and Counter-Proliferation 

A

CTING SOLELY OR AS A MEMBER of a multilateral coalition, the 

United States may attempt to justify a counter-proliferation action 

on the international legal theories of justified intervention and preemptive 

self-defense. Broad international acceptance of these theories as applied to 

counter-proliferation might enable the United States or a multilateral 

coalition to emJ'loy these techniques without violating the norms of international law.2 Alternatively, if these theories are not accepted, broad 

international condemnation can be expected. Consequently, U.S. defense 

planners must address these critical legal issues if they are to make accurate 

assessments regarding the international acceptability of counter-proliferation. Moreover, the acceptability of counter-proliferation measures may 

depend on whether they are conducted unilaterally or multilaterally. Thus, 

it is important to analyze these legal questions from both perspectives. 

Intervention Generally 

International law generally prohibi ts intervention. As Lori Fisler Damrosch notes: 

International law has condemned and sought to constrain [intervention] because of a conviction that important values are served by 

allowing each polity to develop in its own way within internationally 

recognized boundaries. The legal rules against intervention are especially cherished by those who see them as essential safeguards for 
The Newport Papers 

sma1l7r states a��inst abuses at the hands of states that can wield vastly 

supenor power. 

Article 2(4) of the U.N. Charter28 reflects this conviction. It states, "All 

Members shall refrain in their international relations from the threat or 

use of force against the territorial integrity or political independence of any 

state, or in any other manner inconsistent with the Purposes of the United 

Nations.,,29 

Historically, intervention has not always been universally condemned 

despite its present status. Before World War I, when the Great Powers of 

Europe30 dominated the in ternationallandscape, a taci t sys tern existed that 

permitted each Great Power to intervene in conflicts outside of Europe so 

long as that Power conducted the action within its own imperial domain. 

In other words, intervention was permissible so long as one Great Power 

did not explicitly violate the interests of another.31 In exchange for the 

freedom to in tervene in their areas of national interest beyond Europe, each 

Power implicitly agreed to respect existing boundaries on the Continent 

itself. The system reflected the mutual interests of the elite states of Europe 

in dominating an undeveloped world through colonialism, while promoting continental stability. Intervention became a tool in the pre-First World 

War balance-of-power system. 

This system came crashing down around the Great Powers when they 

ceased to respect the established borders of Europe.

32 However, the existence of this bifurcated system permitting colonial intervention while 

prohibiting continental invasion demonstrates that the international community has not always accepted the current norm compelling universal 

nonintervention. "It is important to note . " that the present means of law 

enforcement available to states is considerably more restricted than that 

provided for in the classical period of international law.,,33 

The current norm is the product of a perceived need by post-World War 

II leaders to protect the principle of sovereignty. These leaders attributed 

the cause of World War II to the refusal of Germany and Japan to respect 

international borders. Following the war, leaders of the Allied nations 

recognized a need to construct international institutions that would prevent future erosion of sovereignty by making unilateral intervention illegitimate. Not surprisingly, the creators of the United Nations fashioned a 

legal system that could deal effectively with the type of problems, such as 

invasion, which sparked World War II; however, this system, with its 

emphasis on the principle of sovereignty, necessarily limits the ability of 

12 
Counter-Proliferation Strategy 

states to deal with different dilemmas, including the proliferation of 

nuclear weapons.34 As Jost Delbriick notes: 

The responsibility of states for the enforcement of international erga 

omnes norms and the responsibility of the community of states for the 

enforcement of international law protecting public international community interests do not provide a legal basis frr military enforcement 

measures outside the U.N. Charter's system. 3 

The U.N. Charter codifies this strategy. Article 2(1) states that "The 

Organization is based on the principle of the sovereign equality of all its 

Members.,,36 Given the fundamental premise that one state is neither 

better nor worse than another, and sovereignty is paramount, intervention 

becomes illegitimate. Article 2(4), quoted above, reflects this conviction. 

Article 2(7), which prohibits intervention by the United Nations, except 

in instances when the Securi ty Council deems necessary, further reinforces 

the prominence of sovereignty by generally permittinl governments to 

handle in ternal disputes wi thou t ou tside in terference. 3 

Consequently, when examined in historical terms, as Marc Trachtenberg points out, "intervention should generally be thought of as part of a 

system .... ,,38 That system, as codified by the U.N. Charter, traditionally 

has frowned upon intervention.39 However, just as the system prior to 

World War I became outdated by world events, the possibility exists that 

the present system has outlived its usefulness. The time may be ripe for the 

most powerful of the international community to consider whether intervention should become acceptable for limited purposes. 

Unilateral Intervention and Counter-Proliferation 

Under present tenets of international law, the world community likely 

would condemn an instance of unilateral intervention to destroy the 

weapons development programs of a potential proliferant. The one explicit 

example of the use of unilateral force to destroy the nuclear facilities of 

another state produced such a reaction.40 When Israeli F-16s destroyed the 

Osirak nuclear reactor under construction near Baghdad in June 1981, the 

international response was immediate, and the United Nations condemned 

the Israeli action.41 Despite the threat posed to the region by the nascent 

existence of an Iraqi nuclear program, the international community felt 

compelled to depict the Israeli action as violative of international law. 

While the status ofIsrae1 within the international community casts doubt 

13 
The N ewporl Papers 

upon the value of this precedent, at a minimum, the condemnation should 

give pause to any nation contemplating similar action. 

Given this precedent, the likelihood that a unilateral counter-proliferation effort would draw the ire of the international community is great. After 

all, the U.N. Charter explicitly condemns unilateral intervention. Nonintervention is the norm, and states, particularly those of the Third World, 

are unlikely to see the cause of strict nonproliferation, despite its importance to the industrialized world, as a justification for unilateral action. As 

Virginia Gamba explains, "[P]owerless states have come to view intervention with deep misgivings, either because they have been direct recipients 

of it or because they have had to condition their options so as to avoid it .... 

Intervention has become associated with the loss of freedom.,,42 Forced to 

make the choice between conceding a portion of their sovereignty or 

sacrificing a strict nonproliferation regime, less powerful states dependent 

upon the present norm are likely to opt for the latter. A unilateral counterproliferation effort initiated by the United States, for example, would create 

a precedent that many developing, less powerful states might find unacceptable. 

One must bear in mind that the ospect of proliferation chiefly concerns the current nuclear powers. 3 These nations in particular have 

classified proliferation as a threat to international peace and securitl' 

While the possibility of proliferation also concerns less developed states, 4 

the poorer nations are unlikely to surrender a portion of their sovereignty 

solely for the sake of the current order upon which the present nuclear 

powers depend.4S The developed states, particularly those which possess 

nuclear weapons, have a greater interest in maintaining the nonproliferation regime. First, states equipped with nuclear weapons are thought to be 

less subject to pressure from states without a nuclear capability. Second, 

while the developed states, by and large, are less subject to pressure by the 

international community, smaller states employ the concept of sovereignty 

as a shield from pressures placed upon them by the industrialized world. 

These smaller states-greatly in the majority of the General Assembly-are unlikely to accede to a weakening of the sovereignty concept. 

For the United States, these priorities mean that the international 

community likely would condemn unilateral counter-proliferation efforts 

involving U.S. military forces for which the United States does not have 

U.N. authorization. In conducting a counter-proliferation attack, the 

United States would be in prima facie violation of several provisions of the 

U.N. Charter, including Article 2(3),46 Article 2(4), and Article 33(1), 

14 
Counter-Proliferation Strategy 

which demands that parties attempt to settle their disputes peacefully.47 

The fact that the United States has a veto in the U.N. Security Council 

would do little to change the perception in the world community that the 

counter-proliferation act was de facto illegal. Unilateral intervention designed to save an imperfect nonproliferation regime, despi te laudable goals, 

is incompatible with current international law. 

Multilateral Intervention and Counter-Proliferation 

If U.S. policy makers deem unilateral intervention unacceptable, one 

alternative they might pursue in their quest to prevent proliferation would 

be to expand the scope of any counter-proliferation effort from a unilateral 

endeavor to a multilateral one. The approval and participation of the 

international community would enhance the legitimacy of any intervention designed to prevent proliferation. As Robert Pastor observes, "Just as 

congressional consent for a U.S. military action gives the president a 

cushion of support, collective action is, in the long term, more effective 

than unilateral action in forging an international community.,,48 

Currently, the legitimacy of multilateral intervention for any pUr.R0se is 

being debated widely among international lawyers and scholars. 9 The 

protection of human rights, for example, is often proposed as a basis that 

would justify multilateral intervention. The entrance of forces sanctioned 

by the United Nations into Somalia in 1992 was predicated upon the need 

for humanitarian assistance to its threatened civilian populace.So However, 

multiple legal barriers, including many of those standing in the path of 

unilateral intervention, exist in the pursuance of a workable multilateral 

strategy. 

The first such obstacle is the U.N. Charter itself, which, as noted 

above, rests upon a presumption prohibiting intervention. Chapter VII 

of the Charter does provide for U.N. intervention in limited circumstances. Specifically, Article 42 states, "Should the Security Council 

consider that measures provided for in Article 41 [measures not involving the use of force] would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be 

necessary to maintain or restore international peace and security."Sl 

The United Nations has employed this power sparingly, generally due 

to the fact that the United States and the Soviet Union were at odds in 

many of the disputes in which the United Nations might have played a 

15 
The Newport Papers 

role. Each superpower either utilized a veto or threatened to utilize one to 

block collective U.N. initiatives. 

However, with the collapse of bipolarity, the United Nations has taken 

a more active role in the use of i ts intervention powers. The support by the 

United Nations of the U.S.-led coalition which ousted Iraqi forces from 

Kuwait in 1991 provides an example of this increased willingness to 

support intervention. As part of the action to free Kuwait, a coalition of 

military forces led by the United States and supported by the United 

Nations attacked Iraqi nuclear assets. Thus, counter-proliferation became 

one of the elements employed to justify coalition action against Iraq.S2 

Overall, the ability of the United Nations to exercise its intervention 

powers appears to be growing.S3 Perhaps someday the Security Council will 

have the ability to call on its own dedicated forces pursuant to Article 43 

of the Charter to intercede against potential proliferants.S4 Still, legal 

restraints on the use of U.N. forces continue to frustrate U.N. measures. 

For example, even if multilateral, intervention carries with it an element 

of imperialism. As Marc Trachtenberg states, "[T]he powerful states at the 

cen ter of the system will never themselves be the target of in terventions of 

this sort. ,,55 

It remains to be seen whether the United Nations could exercise these 

powers to prevent the proliferation of nuclear weapons. First, the political 

problems of building multilateral coalitions to take military action are 

substantial. One need only examine the difficulty in building a coalition 

to intervene in the hostilities in the Balkans to understand the political 

difficulties inherent in coalition construction. Even the U.S.-led coalition 

against Iraq had limited objectives.S6 While the United States considered 

expanding the goals of the coalition to include the ouster oflraqi President 

Saddam Hussein, U.S. leaders ultimately decided not to initiate such an 

action, and Hussein remains in office. 

Moreover, a multilateral endeavor often does not accomplish its tasks as 

efficiently as a unilateral effort. Coalition-building requires compromises 

which may prevent optimal counter-proliferation operations. An examination of the effort against Iraq is illustrative, as the U.S.-led coalition ceased 

offensive operations before ousting Saddam Hussein in order to ensure the 

political continuity of its multilateral force.S7 President George Bush and 

his advisors believed that marching to Baghdad would have gone beyond 

the Security Council's specific authorization, jeopardizing the coalition's 

integrity, particularly among its Arab partners which might not have 

accepted a wider mandate against Iraq. 

16 
Counter-Proliferation Strategy 

Alternatives 

Since unilateral acts of counter-proliferation cannot lawfully exist 

within the current international framework, and acts of multilateral intervention, which themselves have legal difficulties, often fail to accomplish 

their objectives, the question arises as to what options U.S. defense planners possess when confronted with a rogue state on the verge of acquiring 

or developing a nuclear weapon. When faced with this scenario, policy 

makers are left with three alternatives, none of which is without flaws. The 

first is to abandon the strategy of counter-proliferation entirely, due to its 

apparent illegality. The second option is to pursue the strategy in spite of 

the present norm against unilateral intervention and the barriers to multilateral intervention. The third choice is to attempt to forge an updated 

norm creating an alternative legal framework which would permit the 

strategy, whether implemented unilaterally or multilaterally, to coexist 

with present international legal rules. Each alternative possesses potential 

costs and benefits. This section analyzes the strategy's respective strengths 

and weaknesses, attempting to define and sharpen the legal issues so that 

policy makers will be able to make informed decisions which will further 

U.S. nonproliferation goals. 

Abandoning the Counter-Proliferation Strategy. Abandoning the coun terproliferation strategy offers the first alternative to U.S. planners. The chief 

legal advantage of this approach is that it would provide the United States 

with an avenue to avoid the legal consequences that could result from 

intervention generally and counter-proliferation specifically. Among the 

possible adverse consequences facing the United States if it were to stage a 

counter-proliferation attack are that it risks international condemnation, 

alliance strain, threatens the nonproliferation regime and the NPT and, in 

its most extreme form, risks the initiation of war. If the United States 

desires to avoid these risks, then dismissing the counter-proliferation 

option would be the easiest course. The United States and its allies have a 

great deal invested in the current international legal order and the nonproliferation regime. Taking measures, such as the most aggressive form of 

counter-proliferation, that could jeopardize the canons of international law 

would create substantial dangers for those nations most dependent upon 

that system's survival. 

On the other hand, if the United States were to abandon the counterproliferation strategy, it would incur costs, including accepting the fact that 

17 
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it would be unable to prevent the development of a nuclear weapon by a 

rogue state. For example, despite the recent fragile agreement between 

North Korea and the United States, at some point the United States, along 

with its allies in the region, mifht be forced to accept the existence of a 

North Korean nuclear weapon.5 U.S. leaders may be willing to accept this 

result as the price for maintaining the current international legal order. Of 

course, the United States also might attempt to enforce the traditional 

norms against nonproliferation by imposing sanctions against the potential proliferant and urging other states to do the same. However, as noted 

earlier, the traditional nonproliferation strategies may not be adequate to 

the task of preventing the truly dedicated proliferant from producing a 

nuclear weapon. 

Ignoring the Legal Consequences o/Counter-Proli/eration. The legal advantages (as opposed to any political or national security advantages) of 

ignoring the current international legal prohibition on intervention are 

difficult to detect. For reasons of national security, U.S. decision makers 

migh t be willing to make this sacrifice to halt pro liferation. However, since 

the application of unilateral counter-proliferation measures is aprima/acie 

violation of the U.N. Charter, no immediate legal advantage would result. 

One potential long-term legal advantage, if one b elieves a policy of 

counter-proliferation is desirable, is that it would set the precedent for 

future counter-proliferation effons. Basically, the first U.S. counter-proliferation strike would set the stage for future effons, making them easier to 

justify. Such a counter-proliferation strike also might deter states considering the development of weapons of mass destruction from initiating a 

program. Finally, by demonstrating its willingness to use counter-proliferation, the United States might force potential proliferants to move their 

programs underground, thereby increasing developmental costs and extending the time needed to produce a nuclear weapon. 

The costs of violating the norm would appear to be high. The international community likely would condemn the United States for violations 

of the U.N. Chaner. Moreover, the counter-proliferation action would 

undermine, perhaps fatally, the nonproliferation regime by demonstrating 

that the NPT had failed, at least wi th respect to the nation subjected to the 

counter-proliferation strike. Despite these consequences, the United States 

might absorb the costs, which also might include alliance strain-and 

possibly war-if it firmly believed that the alternative of a nuclearequipped rogue state is unacceptable. 

18 
Counter-Proliferation StrateftY 

Creating a Norm Permitting Counter-Proliferation. The third alternative 

involves an attempt by the United States to assist in the development of a 

new international legal norm permitting intervention for the specific 

purpose of destroying the weapons development programs of potential 

proliferants. The establishment of this new norm thereby would justify 

U.S. counter-proliferation activities. Intervention for these limited purposes would no longer violate international law. In undertaking this effort, 

the United States would have to maintain that the legal standards that have 

existed since the conclusion of World War II have become antiquated wi th 

the end of the Cold War. Consequently, the international community must 

develop updated norms addressing the problems of the post-Cold War era. 

Limited intervention to prevent the spread of nuclear weapons would 

become one component of this new system. 

The benefi ts of the successful adoption of this strategy are that it would 

permit the United States to engage in necessary counter-proliferation 

activities without drawing the ire of the international community. Of 

course, convincing this community that counter-proliferation should become a norm in the international legal system would not be easy. The 

diplomatic task would be enormous, perhaps impossible, requiring a radical expansion in the interpretation of the U.N. Charter. In effect, an 

exception would have to be crafted into the Charter, allowing for unilateral 

intervention for the purpose of preventing nuclear proliferation. At a 

minimum, the U.N. Security Council would need to authorize a counterproliferation strike, through some approval mechanism, presumably on a 

case by case basis. However, such authorization might be impossible to 

obtain in those circumstances when a permanent Securi ty Council member 

protects the potential proliferant through the use of a veto. Thus, the 

Security Council might be able to authorize counter-proliferation actions 

against only the most isolated pariah states. 

Even if the international community were to adopt this proposal, costs 

would still accrue. Its adoption also would demonstrate the failings of the 

nonproliferation regime's current dependence on the NPT. Moreover, the 

adoption of this scheme would drive a wedge between the nuclear "haves" 

and "have-nots." To a large extent, the scheme would resemble the system 

that existed in the international community prior to World War I, with the 

nuclear powers cast in the role of the Great Powers of Europe. Not without 

some justification, smaller, nonnuclear states could label this new system 

"nuclear imperialism." 

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Additionally, if a counter-proliferation exception to the prohibition 

against intervention were to exist for the United States, it would be difficult 

to condemn similar activities conducted by another state which felt compelled to take action against an adversary's weapons development program. 

Finally, the danger exists that counter-proliferation could become a convenient excuse for all types of intervention, whether justified or not. Taken 

together, these obstacles might prove too difficult to overcome to permit 

the creation of a counter-proliferation exception. The international community, believing that the potential costs of this updated system would 

outweigh any possible benefits, simply may be unwilling to expand the 

present tenets of international law to permit a strategy of counter-proliferation. If this conclusion proves true, then the United States (or any other 

state contemplating the adoption of a counter-proliferation strategy) either 

will have to accept the costs such a strategy entails or discover another 

justification for its actions. 

20 
v 

Counter-Proliferation and the Concept of 

Anticipatory Self-Defense 

�� JHILE THE CONCEPT OF INTERVENTION provides one avenue to 

'0/ '0/ explore in this examination of counter-proliferation, another legal 

concept meriting discussion is the doctrine of self-defense. Specifically, a 

nation facing the prospect that its historic adversary may develop a nuclear 

warhead in the near future may feel compelled to respond militarily to its 

adversary's nuclear program. The question becomes whether the international doctrine of self-defense justifies such a response. The following 

section analyzes the legal principles of self-defense to develop an answer. 

The Hypothetical Case 

Imagine that at some future time State X becomes concerned about the 

nuclear program of its historic adversary, State Y. While State Y claims 

that its program exists solely for peaceful purposes, State X, as well as much 

of the international community, is skeptical. Intelligence reports suggest 

that State Y is clandestinely developing the capacity to enrich uranium and 

reprocess plutonium. Furthermore, State Y is importing dual-use technology that can assist in the construction of a nuclear warhead. State X has 

expressed its concerns to the international community through the SecurityCouncil of the United Nations, but due to political considerations, the 

United Nations has taken no action. While the Security Council has 
The Newport Papers 

threatened to impose token sanctions, extensive measures that would prove 

effective are unlikely to be forthcoming. 

Given these facts and perceiving a need to counter State V's pending 

proliferation, State X feels compelled for reasons of national security to 

address the situation unilaterally. Fearing the development of nuclear 

weapons by State Y, State X attacks the nuclear facilities of State Y, 

destroying those facilities that it believes are integral components of an 

ongoing weapons development program. State X believes that its action is 

justified as an act of anticipatory self-defense. It reasons that the threat 

presented by State V's nuclear program was unacceptable. A nuclear-armed 

State Y, in the opinion of the leaders of State X, would have attacked State 

X. Fearing this scenario, State X decides that it cannot afford to wait any 

longer to protect itself. Furthermore, given the mild efforts by the international community to stem State V's activities, State X feels it cannot 

afford to await effective international sanctions. 

International reaction to the news of the destruction of State V's nuclear 

facili ties is swift. The international community roundly criticizes State X. 

The Security Council censures State X for violating the V.N. Charter and 

threatens sanctions against State X. Many nations believe the attack threatens the nonproliferation regime, whose members renewed the NPT in 1995. 

The international community rejects StateX's self-defense arguments, and 

the Security Council passes a resolution condemning State X for violating 

Article 2(3) and Article 2(4) of the Charter, as well as for endangering the 

integri ty of the NPT. 

A Question of Self-Defense 

Although in this hypothetical scenario the international community 

condemns State X's action, one should inquire whether the preemptive 

attack truly was illegal pursuant to current norms of international law. 

When may a state re� on the concept of anticipatory self-defense to justify 

a preemptive strike? Does the V.N. Charter prohibit anticipatory self-defense entirely? If not, under what circumstances may a state resort to 

anticipatory self-defense to solve a perceived risk to its national security? 

If international law does prohibit the use of unilateral anticipatory self-defense, is this ban sound in an era of heightened proliferation concerns? Or 

may a state justify its act of counter-proliferation on the basis of anticipatory self-defense? These questions are the focus of this section. 

22 
Counter-Proliferation Strategy 

U.S. defense planners may feel compelled to take mili tary action against 

a potential proliferant. If the concept of anticipatory self-defense justifies 

i ts action, the United States may be able to avoid international condemnation for violations of international law. Moreover, if the international 

community accepts a future claim of counter-proliferation as anticipatory 

self-defense, later acts may prove easier to justify, both for the U nited S tates 

and other nations considering counter-proliferation strikes. 

Analytical Method 

This portion of the paper analyzes whether the international law of 

anticipatory self-defense or the related concept of reprisal would support a 

U.S. strategy of counter-proliferation. First, it explores the current state of 

international law in the area of anticipatory self-defense. Two bodies of 

law, cus tomary international law and the Charter of the United Nations, 

influence thought on anticipatory self-defense. Following this examination of the law, the 198 1 Israeli attack on the Iraqi nuclear reactor known 

as Tarnuz I near Baghdad is analyzed in an attempt to discover whether 

international condemnation following that attack was warranted. Another 

question examined is whether policy makers in the United States may 

utilize the concept of an ticipatory self-defense as a tool to support a s trategy 

of counter-proliferation. The potential barriers U.S. leaders would face in 

attempting to justify the strategy on this basis are described. 

In Chapter VI the international legal concept of reprisal is analyzed, 

examining how this concept fits into the counter-proliferation framework. 

Although the international community generally denounces p eacetime 

military reprisal s, the community may need to reexamine their validity 

in an era when the perceived dangers of proliferation are increasing. 

Chapter VII studies counter-proliferation operations during war. Finally, 

Chapter VIII offers recommendations which the members of the international community might consider as they address the threat of nuclear 

proliferation. International legal norms need to be reconsidered if the 

nonproliferation regime is to meet its forthcoming challenges. The international community must decide which is more critical, maintaining the 

existing international legal norm on self-defense, although the problems 

of proliferation will tax it, or developing updated norms that will address 

proliferation concerns but which also might give nations greater license to 

take otherwise illegal offensive military action, thereby challenging the 

legitimacy of the U.N. Charter. 

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International Law and Anticipatory Self-Defense 

The Definition of Self-Defense . Although seemingly obvious, the definition of self-defense is not necessarily clear. Self-defense, contrary to what 

some might b elieve, is not designed to punish an aggressor. Punishment 

is accomplished through repri sal, discussed below. Rather, as Richard J. 

Erickson explains : 

The purpose of self-defense is to preserve the status quo .... Self-defense does not seek the biblical eye for an eye; rather it seeks to preserve 

world public order which is threatened by permitting the use of force 

as an emergency measure "strictly confined to the removal of the 

danger." Thus, a nation acting in self-defense wil apply force in a 

restricted fashion that is regulated in scope and objective. Methods and 

means, as well as targets, will be carefully selected to achieve the narrow 

preventative purpose of self-defense ang will not be directed in such a 

manner as to be punitive in character .6 

Unfortunately, the line between that which is defensive and that which 

is punitive is rarely bright. Nations often frame punitive actions in the 

guise of self-defense, and frequently the international communi ty labels 

acts of self-defense as punitive because the community tends to prefer the 

avoidance of conflict to the implementation of i usti ce.61 To reduce this 

confusion, the history of in ternational law on self-defense and i ts influence 

in shaping current views on the acceptance of anticipatory self-defense 

must be understood. 

Customary lntenuztional Law: The Caroline Case. Any discussion of a 

right to anticipatory self-defense should begin wi th an analysis of the 

Caroline case of 1 837.62 This case involved a dispute between the U nited 

States and Great Bri tain over the activities of British forces in the Canadian 

province of Ontario. An insurrection against British rule had occurred in 

Ontario, and Bri tish forces were attempting to eradicate it when an expeditionary patrol of the Briti sh army destroyed the privately owned U .S. 

vessel Caroline, which had been supplying the rebels with arms, in the 

American waters of Lake Ontario. The U ni ted S tates protes ted the British 

action, and the British government defended it on the ground that i ts forces 

were acting in self-defense. 

In 1842, in a subsequent diplomatic exchange between the parties, U.S. 

S ecretary of State Daniel Webster enunciated a doctrine designed to 

determine when an act of anticipatory self-defense would become acceptable. Recent commentators observe : 

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Counter-Proliferation Strategy 

This fonnulation, known as the Caroline doctrine, asserts that use of 

force by one nation against another is permissible as a self-defense 

action only if force is both necessary and proportionate. The first of 

these conditions, necessity, means that resort to force in response to 

an armed attack, or the imminent threat ofan armed attack, is allowed 

only when an alternative means of redress is lacking. The second 

condition, proportionality, is linked closely to necessity in requiring 

that a use of force in self-d$fense must not exceed in manner or aim 

the necessity provoking it.6 

Th rough international acceptance of this standard, an ticipatory self-defense became legal in certain limited circumstances . In Webster's words, 

the threat of attack had to be "instant, overwhelming, and leaving no choice 

of means, and no moment for deliberation. '

.64 

For much of the nineteenth and twentieth centuries the international 

legal regime accepted Webster's test. If a nation reasonably believed that 

an attack from an adversary was looming, it could preempt that attack so 

long as i ts use of force was reasonable. However, this standard was subject 

to abuse. Nations often defended patently offensive military actions with 

self-defense justifications. For example, the United States attributed i ts 

decision to i nvade Mexico in the 1 846 Mexican-American War partially on 

grounds of self-defense. This "self-defensive" action led to the annexation 

of the modern states of the U.S. Southwest, induding California. 

The League of Nations and the Kellogg-Briand Pact. In the aftermath of 

the First World War, the international community sought to codify international law on the use of force. However, neither the 1918 Covenant of 

the League ofN ations65 nor the Kellogg-Briand Pact of 1 928,66 which were 

products of these efforts, altered the cus tomary international law on selfdefense. Both maintained the cus tomary right, induding the right to 

anticipatory self-defense when the threat was imminent and the response 

proportionate. While the League of Nations was designed to give nations 

a forum in which to discuss their disputes, and the Kellogg-Briand Pact 

was designed to prohibit resort to war "as an instrument of national 

policy,'.67 neither document was designed to prevent states under duress 

from taking effective defensive action to preempt an adversary's mili tary 

aggression. Thus, through World War II, Webster's concept ofanticipatory 

self-defense survived. However, the language of the U.N. Charter has 

clouded the concept's previous clarity. 

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The United Nations Charter 

Article 51. Much of the controversy surrounding the right of a nation 

to engage in anticipatory self-defense centers on the language of Article 51 

of the U.N. Charter, which states : 

Nothing in the present Charter shall impair the inherent right of 

individual or collective self-defense if an aned attack occurs against 

a Member of the United Nations, until the Security Council has taken 

measures necessary to maintain international peace and security. 

Measures taken by Members in the exercise of this right of self-defense 

shall be immediately reponed to the Security Council and shall not in 

any way affect the authority and responsibility of the Security Council 

under the present Charter to take at any time such action as it deems 

necessary in order to maintain or restore international peace and 

· 68 secunty. 

Two conflicting views of this language have provoked a debate regarding 

a nation's right to act in anticipatory self-defense.69 One view holds that 

the language of Article 51 must be read restrictively, forbidding acts of 

self-defense except after an actual armed attack. Proponents of this view 

maintain that permitting states to resort to force b efore an adversary's 

attack would lead to errors in judgment, producing conflicts that otherwise 

might be avoided?

O Funhermore, and taken to its extreme, this argument 

posits that once the Security Council takes "measures necessary to maintain international peace and security," al!X acts of self-defense, even if not 

ini tiated preemptively, must terminate. 1 Thus, according to the most 

restrictive reading of Article 51, once the Security Council takes action, 

perhaps by imposing only limited economic sanctions, any continued 

defensive action is invalid. 

One illustration of how this interpretation would have applied is the 

Security Council's response to the 1990 Iraqi invasion of Kuwait. According to the most restrictive view, once the Securi ty Council passed resolutions es tablishing economic sanctions agains t Iraq, "the Kuwai ti right to 

resist no longer exis ted. Accordingly, Kuwait would be forced to wait and 

see if the sanctions worked, or if the Security Council decided to take 

additional [military] action . . . . ,,72 

Critics of this approach believe that this view overstates the meaning of 

Anicle 51,73 contending that not only does the righ t to self-defense extend 

beyond the initiation of action by the Securi ty Council, but also exists in 

anticipation of an armed attack. Support for this argument derives from 

the negotiating history (travaux preparatoires) of Article 51, which does not 

26 
Counter-Proliferation Strategy 

purport to renounce the prior customary international law on self-defense.14 "The negotiating history at the San Francisco Conference [which 

established the United Nations] reveals that Article 51 was intended to 

incorporate th e entire customary law or 'inherent right' of self-defense. The 

comprehensive incorporation of the customary law includes reasonable 

and necessary anticipatory self-defense since this has always been a part of 

customary law.,,7S 

Thus, the Charter must be read in light of customary international law 

at the time of its creation in 1945. This reading suggests that the right to 

self-defense has remained virtually unchanged since Webster's formulation of the anticipatory self-defense standard in the 1 84Os .

16 The right to 

anticipatory self-defense continues to exist so long as the action satisfies 

the imminence and proportionality requirements first enunciated by Webster in the Caroline discussions. If overwhelming evidence exists that 

demonstrates an attack is forthcoming, then so long as preemptive action 

is proportional to the threat, it should be legal pursuant to international 

law. The United S tates has adopted this view, believing that anticipatory 

self-defense is permissible at least in certain contexts. In 1 986, Secretary of 

State George P. Shultz stated that a country is "permitted to use force to 

preempt future attacks, to seize terrorists, or to rescue i ts ci tizens when no 

other means are available.,,77 

The Advantages of Maintaining a Right to Anticipatory Self-Defense. While the U.N. Charter may or may not limit the right to anticipatory self-defense, the option has not b een eliminated entirely. The problem 

that would be created by an overly restrictive b an on anticipatory self-defense is that it would treat all cases, from i nvasions by insurgent guerrilla 

forces to nuclear attacks, similarly.78 In an era of modern weaponry, 

nations should not be compelled to await a potentially devastating firststrike before undertaking lawful measures of self-defense.19 This is particularly true in the case of a pendi ng nuclear attack when the potential for 

devastation is acute. As Beth Polebaum notes, "The Charter should not be 

read to require one nation to permit another the b enefits of military 

armament, surprise attack, and offensive advantage, against which no 

defense may lie. If the Charter is to be an effective instrument, it must be 

read to accommodate the needs of the con temporary world.,,80 

The challenge for the international legal regime is to create guiding 

parameters in which a nation could take anticipatory defensive measures 

with the reasonable expectation that the international community would 

accept them. However, this standard should not give na tions a carte blanche 

27 
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to cast offensive actions in the legitimizing glow of self-defense. Discovering the proper balance between these two extremes could prove daunting. 

A Case Study in Counte r-Prol ife ration: The Israel i DestnJ ction 

of the I raqi N uclear Reactor Tamuz I 

In an attempt to discover the elusive b alance permitting anticipatory 

self-defense in the nuclear age, one should study the events of the most 

notorious instance of counter-proliferation to date: the Israeli attack on the 

Iraqi nuclear facility known as Tamuz I near Baghdad in 1 981. The 

international community roundly condemned this attack. Why? Which 

elements of the attack made the Israeli government's self-defense jus tifications unacceptable? Was the conclusion of the international community 

made hastily? What lessons can these events offer regarding the requirements of a legitimate counter-proliferation action b ased upon the theory 

of anticipatory self-defense? The destruction of the Iraqi reactor offers 

valuable lessons for U.S. policy makers as they consider the development 

of U.S. counter-proliferation policy. 

The Facts. On Sunday, 7 June 1 981, eight Israeli F-1 6 fighter planes 

manufactured in the United States bombed the Iraqi nuclear reactor under 

construction near Baghdad. "The bombs were deposited with impressive 

precis ion, and within two minutes the reactor was des troyed."S l The Israeli 

government, led by Prime Minister Menachem Begin, justified its action 

on the basis of self-defense. 82 In support of its position, the Israeli government claimed that " [s]ources of unquestioned reliability told us that [the 

reactor] was intended ... for the production of atomic bombs. The goal of 

these bombs was Israel.,,83 

The construction of the Iraqi reactor, undertaken with the assistance of 

French and Italian technicians, had concerned the international community prior to the Israeli attack. In 1980, Iran had attempted to destroy the 

facility during its war with Iraq.84 The reactor's ability to produce weapons-grade fissionable material also concerned the United States .

85 

Israel conducted the raid secretly, not informing the United States or 

any of its other allies of the attack until its completion.86 This lack of 

information led the Reagan administration to suspend delivery of four 

F-1 6s which Israel had previously purchased from the United States.

87 

International Reaction. International reaction to the daring Israeli raid 

was swift and overwhelmingly negative. The United S tates, France, the 

28 
Counter-Proliferation Strategy 

Arab states and the Soviet Union condemned the attack as a violation of 

international law.88 Kurt Waldheim, Secretary General of the United 

Nations, stated on the day following the raid that it was "[a] clear contravention ofinternational law.,,89 On 19 June 1 981, the Security Council, in 

Resolution 487, condemned the raid and ordered Israel to make reparations 

to Iraq for the latter's 10sses.90 The United States abstained when this vote 

occurred.91 The international community rejected Israeli arguments that 

the strike was an act of self-defense.92 

The international community also was concerned that the raid would 

weaken the nonproliferation regime. The raid sugges ted that despite a 

nation's acquiescence to IAEA safeguards,93 its nuclear facilities still might 

be subject to an armed attack.94 Members of the U .S. Senate, who were 

concerned about the future of the nonproliferation regime, made similar 

argum ents . 

9S 

Why Not Self-Defense. The international rejection ofthe Israeli argument 

that the attack against the Tamuz I reactor was an act of self-defense 

requires further analysis?

6 Which element of the requirements for a 

legitimate exercise of anticipatory self-defense did Israel fail to satisfy? 

Alternatively, did the Israelis meet these requirements only to discover that 

the members of the international community chose to focus on external 

political considerations, such as Israel's isolated status in the world community, to justify their condemnation? 

Imminence of Attack by Iraq. One of the chief weaknesses of the Israeli 

defense claim was the fact that most of the international community 

b elieved that Iraq was years away from developing a nuclear warhead. 

Conse9uently, an Iraqi nuclear attack against Israel could not be imminent.

9 Accordingly, the Israelis failed to pass the imminence requirement 

of the anticipatory self-defense tes t, as "[t] here is no legal authority empowerin� a state to employ coercion against a speculative or non-imminent 

threat." However, the Israeli claim that circumstances dictated early 

destruction of the facility has some merit. The Israelis attacked the reactor 

b efore it went "critical," when nuclear material would be on site. The 

Israelis believed that this event would have occurred in the summer of 

1 98 1 . A later attack would have risked the release of fissionable material, 

possibly spreading radiation over a wide area. Thus, according to the 

Israelis, for all intents and purposes, they were imminently subject to a 

nonnuclear attack by Iraq, and even if this were not the case, to have wai ted 

29 
The Newport Papers 

until the reactor commenced production of nuclear fuel would have been 

irresponsible for both national security and environmental reasons .99 

The Raid Did Not Respond to an Illegal Iraqi Activity. The next factor 

militating against justification of the Israeli attack is the fact that most of 

the international community b elieved that Iraq was in compliance wi th i ts 

international legal obligations, including IAEA safeguards.lOO The presumption that the Iraqi nuclear program was legal and safeguarded meant 

that the Israeli action was not defensive, but punitive. 

The problem with this analysis is that Israeli intelligence had concluded 

that the Iraqis were in violation of their international accords and that the 

Iraqi government was committed to the clandes tine development of a 

nuclear warhead. WI Given the tradition of tense relations between Israel 

and Iraq, 102 the Israelis felt compelled to take action b ased upon their belief 

that Iraq was dedicated to constructing nuclear weapons. 

Israel Failed to Exhaust Diplomacy. The strongest argument justifying 

condemnation of the Israeli action was the fact that Israel failed to exhaust 

diplomatic channels in an attempt to solve its security concerns prior to 

taking military action. 103 For example, Israel did not notify the Uni ted 

States of its intention to strike the reactor. 104 Nor did the Israelis attempt 

to convince the French and I talian �overnments of the need to augment 

safeguards at the Tamuz I facility. 0

5 Finally, Israel did not take its 

complaint to the United Nations for a hearing on the matter. Hence, Israel 

may have resorted to military action prematurely. 

The Israelis could have demonstrated more patience. However, they also 

faced multiple dilemmas on the diplomatic front. First} a new French 

government had taken power only weeks before the raid. 0

6 Its ability to 

persuade the Iraqis to halt their program was questionable at best; only 

days b efore the attack, French Foreign Minister Claude Chepson had 

declared that, while not likely to engage in future nuclear programs with 

Iraq, the new French government would fulfill its predecessor's obligations. i07 Moreover, given the historic bias against Israel in the United 

Nations, taking its case to that multinational body did not seem a reasonable alternative for the Israeli regime. While the United States may have 

been able to make diplomatic efforts with the government in Baghdad, 

its influence probably would have been minimal . Finally, diplomacy 

takes time to accomplish its objectives. Lengthy diplomatic discussions 

would have given the Iraqis more time to complete the reactor, perhaps 

even allowing them to bring fissionable material to the site. Exhausting 

30 
Counter-Proliferation Strategy 

diplomatic lines might have proven disastrous for the Israelis if negotiations had failed. The Iraqis would have bought time for their nuclear 

program while placating the international community. 

Proportionality. International law required that the Israelis take action 

in proportion to the threat against them when they engaged in their attack. 

The extent of the Israeli strike satisfied this requirement. 108 In Polebaum's 

succinct evaluation: "[Israel] employed conventional weapons and destroyed only the reactor capable of producing nuclear bombs .... Baghdad 

was unharmed. Israel carried out the strike on a Sunday, when the reactor 

was presumably vacant, to ensure the safety of the French and Arab 

workers.,,

109 Had Israel possessed a less destructive means to accomplish 

its mission effectively, international law would have compelled it to try 

that method. This concept dictates that a mission of self-defense may 

incorpora te only the minimal amoun t of force necessary to accomplish its 

goals. However, it is unclear by what standard one should measure such 

force. Should the standard be based on the number of casualties, the extent 

of the destruction, the amount of force employed, or some combination 

thereof? Presumably, the predominant goal of this standard is to limit 

casualties. Yet the amount of force employed does not necessarily correspond to the extent of casualties, as precisely guided, powerful munitions 

may cause fewer casualties than a less powerful weapon aimed erratically. 

The Israeli action caused little collateral damage and few casualties.,,

1 1 0 

The Lessons from the Destruction of Tamuz I. The Israeli raid offers 

numerous lessons applicable to the counter-proliferation debate. However, 

the political status of Israel in the international community in the early 

1980s may dilute their value, as it is unknown whether the international 

communi ty would apply the same standard to another nation. Despite this 

caveat, the raid and its subsequent discussion may lead us to posit that 

self-defense will fail as a justification of a counter-proliferation activity if 

it neglects any part of a rigorous legal standard. An attacker must satisfy 

the four elements of the anticipatory self-defense test. First, the counterproliferation attack must corne in anticipation of an imminent attack by 

an adversary. Second, the potential proliferant must violate some aspect of 

international law, whether it be the NYf or some other international norm. 

Third, the nation considering a counter-proliferation assault must exhaust 

all reasonable diplomatic efforts before commencing mili tary action. And 

fourth, the counter-proliferation event, when it does occur, must be 

proportionate to the threat produced by the potential proliferation; the 

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military force employed should not exceed the minimum amount necessary to accomplish the counter-proliferation task, as excessive force violates 

international law. 

Any nation contemplating a counter-proliferation action should not 

only unders tand it will be difficult to meet the anticipatory self-defense 

standards but also realize that it will prove difficult to convince the 

members of the in ternational communi ty tha t its action actually has passed 

that test. In other words, since international politics is a largely subjective 

arena, the attacker must not only pass the self-defense test, it also must 

prove it has passed. The attacker b ears the burden of proof in such 

situations. "[T]he world community is likely to hold the acting state to a 

high standard if the international reaction to the Israeli raid on the Iraqi 

Osirak [Tamuz I] nuclear reactor is any indication."UI The Israeli action 

arguably fulfilled all the requirements of the anticipatory self-defense 

standard, yet friend and foe alike condemned the action. Thus, drawing 

upon what admittedly is a less than perfect example, in order for a state to 

justify its counter-proliferation activity to a skeptical world community, 

its evidence must prove clear and convincing. 

Another lesson one should take from the inciden t is that although a 

counter-proliferation strike may have high international legal costs, the 

price might be worth paying. The Israeli attack set back the I raqi nuclear 

program; however, subsequent events demonstrated Baghdad's determination to build nuclear weapons. But for the attack on the reactor, I raq 

might have been able to construct a warhead by the mid-1980s. Israel could 

not have accepted this possibility, yet it is unclear w hether the Israeli 

government could have prevented Iraqi development of a warhead any later 

than 1981, especially if the reactor had gone critical. Thus, although the 

international community condemned Israel for an ostensibly illegal act, it 

is unlikely that I srael regrets the attack. Moreover, it is apparent that many 

other n ations, including the United States, do not regret the Israeli attack. 

For example, in 1 991, U .S. Secretary of Defense Richard Cheney publicly 

thanked the Israelis for thei r "bold and dramatic action.,,

1 1 2 

The Ability of the United States to Justify Counter-Proliferation on the 

Theory of AntiCipatory Self-Defense 

If the United States were to engage in counter-proliferation measures, it 

might attempt to justify its action on the basis of anticipatory self-defense. 

Would the United S tates be able to sustain this argument, or would it face 

32 
Counter-Proliferation StrateF:Y 

the same type of condemnation which Israel endured after its attack on 

Tamuz I? Inevitable obstacles would face the United States if it were to 

defend its counter-proliferation action on this basis. These barriers correspond to the requirements needed to justify any anticipatory action of 

self-defense. A failure to satisfy any of these criteria would make the action 

illegal pursuant to present norms of international law. 

While evaluating the legali ty of any U .S. deploymen t of the coun ter-proliferation strategy depends somewhat upon unique circumstances, one may 

make a few assumptions regarding U.S. positions in a scenario in which it 

felt compelled to resort to the policy in its most violent form. The first 

assumption is that, at least for the foreseeable future, the United States will 

possess the more powerful military arsenal vis-a-vis any potential proliferant. Another assumption is that the United States would attempt to utilize 

the authority of the United Nations, at least initially, in order to support 

its action. Finally, given the principles of U.S. military strategy, the United 

States would employ substantial force to accomplish its counter-proliferation objectives. Redundancy is a hallmark of U.S. military tactics. The 

tactics employed during "'Operation Desert Storm" demonstrated this 

tendency, as the U.S.-led coalition conducted over 100,000 air sorti es 

against Iraq.

1 l3 The United States is unlikely to abandon this practice in 

any foreseeable counter-proliferation scenario. 

Th2 Immediacy Requirement. The immediacy requirement poses an instant and severe threat to any U.S. justification of a counter-proliferation 

activity based upon the theory of anticipatory self-defense. With the end 

of the Cold War, the risk to the United States from nuclear attack has been 

reducedy

4 None of the usual proliferation suspects currently have the 

capacity to strike the Uni ted States. 1 IS Even the most pessimistic estimates 

believe that another decade will pass before a nation currently hostile to 

U.S. interests will have the capacity to strike the United States with a 

nuclear-tipped ballistic missile. 16 Consequently, the United States would 

have difficulty meeting the first condition of the anticipatory self-defense 

test. 

The United States might argue that although these states cannot place 

the United States at imminent risk of nuclear attack, they might be able to 

threaten both U.S. allies and U.S. military forces deployed overseas. Thus, 

according to this reasoning, the counter-proliferation event could meet the 

immediacy requirement. Two problems confront this argument. First, 

while U.S. forces may be deployed overseas, their presence does not convert 

33 
The Newport Papers 

the land which they occupy into V.S. territory. A significant difference 

exists between defending V.S. territory and U.S. forces, as the former 

represents an element of U.S. sovereignty, while forces deployed overseas 

do not, in and of themselves, command the same degree oflegal protection. 

Second, if an imminent threat existed against an ally of the Uni ted States, 

that might give the al ly a justification to engage in a counter-proliferation 

strike, but probably would not permit the United States to undertake the 

operation unilaterally. 

For example, to attempt to justify a preemptive attack against North 

Korea's nuclear faciIi ties, the V ni ted S tates would have to d emons trate that 

its counter-proliferation action had met two aspects of the immediacy test. 

First, V .S. leaders would have to establish that the North Koreans were on 

the verge of developing a nuclear warhead and that the counter-proliferation activity had to be conducted immediately to be effective. More i mportantly, the United States would have to demonstrate that if North Korea 

were permi tted to develop its bomb, it could and would immediately attack 

the United States (an admittedly unlikely scenario), South Korea, or Japan. 

The United States could argue that the counter-proliferation campaign 

was conducted no t for the defense of the United S tates, but for the defense 

of South Korea and American forces located there. However, as noted 

above, these facts might legitimize a preemptive attack by the South 

Koreans, but might not suffice to justify unilateral American action. A 

combined U .S.-South Korean attack might pass muster, but the international community likely would scrutinize any U.S. involvement closely. 

Any U.S. A ction Must Respond to an Illegal Activity. To engage legally 

in an act of counter-proliferation, the United States must demons trate that 

the target state is in breach of some aspect of international law. This 

requirement is met most easi ly when a state is clandes tinely developing a 

nuclear warhead in violation of i ts commitment to the NPT. However, if 

the state is not an NPT member, or if it has withdrawn from the regime 

pursuant to its rights under Article X of the Treaty, 11 7 then the United 

States would need to base its co un ter-proliferation activi ty on some broader 

concept found within the body of customary international law. According 

to one official, the U.S. Department of Defense takes the position that an 

international norm exists which classifies the development of a nuclear 

wea�on by a previously nonnuclear state as a violation of international 

law. 1

8 This theory of international law, however, migh t be unconvincing 

to an i nternational community that perceives a reluctance on the part of 

34 
Counter-Proliferation Strategy 

the current nuclear powers to reduce thei r arsenals and which has ignored 

the proliferation of nuclear weapons in non·NPT members such as Israel 

and India. Even if the international community has accepted this norm, 

the communi ty has not constructed an effective enforcement regime which 

guaran tees adherence to it. 

In other words, violations of international law are rarely obvious. The 

United States might have to procure a resolution from the Security Council 

condemning the proliferation activity as a breach of international law to 

justify this element of the preemptive self·defense test. Such condemnation 

might be difficult to obtain and would not occur rapidly. 

Obligation to Exhaust Diplomatic Options. The third obstacle which the 

United States must overcome to justify a preemptive counter·proliferation 

attack is the requirement to demonstrate that it had exhausted all reasonable diplomatic avenues before engaging in military action. This condition 

would prove easier to hurdle if the state in question completely refused to 

negotiate the proliferation issue. However, even the mos t reclusive pariah 

state normally does not completely isolate i tself from the international 

community. Recent events involving North Korea d emonstrate this point. 

If negotiations were ongoing but failing to make progress, then the U ni ted 

S tates might be able to argue that the potential proliferant was engaging in 

stonewalling tactics to delay the i nevi table. Unfortunately, it is often 

difficult to discern when negotiations have failed and when they are merely 

stalled. 

The diplomatic exhaustion requirement is not easily fulfilled. Given the 

prominent position of the United States in the international community, 

it might prove substantially more difficult for the United States to meet 

this requirement than for states oflesser international stature. 

The Proportionality Requirement. The final requirement that the test for 

preemptive self·defense imposes upon a state engaging in a counter·prolif· 

eration attack is that it use no more force than necessary to accomplish its 

mission. This requirement, which seems only reasonable in diplomatic 

circles, is not necessarily consistent with current U.S. military dogma. 

When the United S tates employs force, it often does so redundantly. In 

other words, the United States tends to apply more force than the minimum necessary to guarantee that it accomplishes its military objectives. 

For example, in the Persian Gulf conflict, " [t]he Pentagon explained i ts 

strategy as applying overwhelming force at maximum efficiency. Coalition 

leaders were intent on achieving their objectives with minimum Coalition 

35 
The Newport Papers 

casualties and maximum combat efficiency. If combat operations became 

necessary, the concept was to apply overwhelming force.,, 1 1 9 From a 

military perspective this strategy is sensible, because a military failure often 

is worse than not attempting to accomplish the mission in the first place. 

However, the use of "overwhelming" force to attain a military objective can 

create problems for the United States within the international community. 

In the context of anticipatory self-defense, it could be thought to violate 

international law. 

U .S. military capabilities might assist in the fulfillment of the requirement, as the imposition of more force does not lead invariab ly to more 

destruction. Precision-guided mu nitions, for example, could destroy the 

target without causing extensive damage to the surrounding area. The 

international legal standard for proportionality is unclear in this regard. 

Does the standard prevent overwhelming force or overwhelming damage? 

If the use of disproportionate force does not result in disproportionate 

destruction, then the Uni ted States might be able to satisfy this requirement. 

A condition related to the proportionality requirement considers the 

type of force applied in a given situation. The degree of force should not 

exceed the minimum necessary to accomplish the desired task. In other 

words, if the U nited States could reasonably expect to employ a successful 

nonviolent counter-proliferation approach, by the standards of international law it must attempt to do so b efore engaging in a violent attack. Thus 

this argument holds that, if possible, the Uni ted States should attempt to 

sabotage the weapons program of a proliferant through the introduction of 

a computer virus, for example, b efore bombing the proliferant's weapons 

development facilities. 

Conclusions Regarding the Legality of Counte r-Proliferation Pursuant 

to the I nte rnational Law of Anticipatory Self-Defense 

The requirements a state must satisfy to justify an act of anticipatory 

self-defense are stringent. They seek to prevent states from disguising 

unnecessary and illegitimate military attacks as acts of self-defense. The 

United States would face a daunting task to convince the international 

communi ty that a violent act of counter-proliferation fell squarely within 

the legal requirements of the test for antici patory self-defense. I t is difficult 

to imagine many states accepting U.S. explanations that it was under the 

36 
Counter-Proliferation Strategy 

threat of imminent attack by a Third World s tate producing its first nuclear 

weapon. 

Beyond the i mminence requirement lie the o ther requirements of 

preemptive self-defense. When examined collectively, they make it difficult to fathom how the United States could legally justify a counter-proliferation activity on the basis of anticipatory self-defense. This legal 

conclusion, however, should not (and will not) be the only factor U.S. 

leaders consider when deciding whether to engage in an act of counter-proliferation. The international community condemned Israel for its attack of 

Tamuz 1.1 20 However, in retrospect, it is doubtful that the government of 

Israel or other members of the international community regret that attack.121 As Prime Minister Menachem Begin declared, "Despite all the 

condemnations in the last twenty- four hours, Israel has nothing to apologize for. It was a just cause. And it shall yet triumph; ... it was an act of 

supreme moral and national self-defense.,,

1 22 The legal analysis, therefore, 

should not be dispositive when analyzing the counter-proliferation equation. Like Menachem Begin in 1 981, U .S. leaders must determine whether 

the condemnation of the international community is a cos t worth bearing 

to prevent a nation from going nuclear. 

37 

VJ[ 

Counter-Prol iferation and the Concept of Reprisal 

lTF COUNTER-PROLIFERATION is unlikely to meet the requirements of 

anticipatory self-defense, then what other l egal concept might describe 

a counter-proliferation event? Counter-proliferation perhaps best fits under the rubric of the international legal concept of reprisal.1 23 However, 

while an act of counter-proliferation might fit within the definition of 

reprisal, this fact does not solve the prob lem for a state engaging in that 

act, for reprisals are per se illegal pursuant to current norms of in ternational 

law. 

The Legal Definition of an Act of Reprisal 

While reprisal and self-defense are related concepts, since both are forms 

of self-help, reprisals differ from self-defense because the former are punitive. As Derek Bowett explains : 

The difference between {he two forms of self-help lies essentially in 

their aim or purpose. Self defense is permissible for the purpose of 

protecting the security of the state and the essential rights-in particular the rights of territorial integrity and political independence upon 

which that security depends . In contrast, reprisals are punitive in 

character: they seek to impose reparation for the harm done, or to 

compel a satisfactory settlement of the dispute created by the initial 

illegal act, or to compel the delinquent state to abide by the law in the 

future. 124 
The Newport Papers 

It is their punitive nature that precludes the legitimacy of reprisals 

before international law. They conflict with the language of articles 2(3 ) 

and 2(4) of the U.N. Charter, which requires that states settle their disputes 

by peaceful means and refrain from the use or threat of the use of force 

agains t o ther states. Thus, one commentator explains : "The general view 

is that articles 2(3) and 2(4) of the U .N. Charter have outlawed peacetime 

reprisals. U.N. General Assembly resolutions have called on s tates to 

refrain from i ts [sic] use.,,1 25 

The prohibition against peacetime reprisals reflects the international 

community's desire to avoid conflict between states despite the possible 

legi timacy of a claim by one state against another. The hope of the fou nders 

of the United Nations was that disputing parties would bring their claims 

to either the U.N. Security Council or the International Court of Justice 

for peaceful settlement instead of engaging in destructive military operations to settle the score. 126 To further this aspiration, the language of the 

Charter i mplicitly forbids the use of reprisals . 

Five reasons are commonly given to explain the general condemnation 

of reprisals . As Richard J. Erickson s tates, "First, forcible reprisal is a 

remedy available only to the strong over the weak. Second, it allows the 

injured state to both judge the wrong done against it and extract the 

reparation for that wrong. Third, reprisals connote an eye for an eye, 

revenge, and retaliation. Fourth, reprisals tend to embi tter relations among 

states. Fifth, reprisals can result in counter-reprisals and escalation of the 

use of force between states.,,1 27 

The tes t to determine whether a military strike qualifies as a reprisal 

. h I 1 28 F

' N' X . . 1 con tams t ree e emen ts. lrst, anon mus t commIt a nonVIO ent 

wrong against the interests of Nation Y. Second, N ation Y must respond 

to this violation of its interest and i nternational law by taking military 

action against Nation X to punish Nation X for its unlawful act and to have 

Nation X change its behavior. Third, Nation V's military action must not 

fit within the acceptable legal definition of the right of self-defense. 

Counter- Proliferation and Reprisals 

Any counter-proliferation activity conducted by the United States almost certainly would fall within the legal definition of reprisal. The strike 

would meet the three requirements set forth in the reprisal defi nition. 

First, the U nited States would perceive a legal wrong to i ts interes ts, in this 

case a violation of the putative norm against proliferation. Second, by 

40 
Counter-Proliferation Strategy 

employing military force the United States would attempt to coerce the 

target state to modify its policy. Finally, for the reasons outlined above, the 

U.S. action would not fit within the confines of the definition of a state 

undertaking an act of preemptive s elf-defense. 

The Violation of International Law by the Target Stare. The situation in 

North Korea, despite the recent agreement wi th the U nited States and 

South Korea, provides a good example of how this analysis might apply. If 

the goal of its nuclear program were to cons truct a warhead, then North 

Korea would be in violation of its international treaty commitmen ts by 

breaching the N]7f. Even if North Korea were to withdraw from the NPT, 

its development of a nuclear warhead conceivably would violate a presumed international legal norm prohibiting the proliferation of nuclear 

weapons. Thus, the development program, as a prima facie violation of 

international law, would satisfy the first stipulation of the reprisal test. 

The Response to the Violation. It is possible that in response to the alleged 

North Korean violation, the United States, unab le to obtain the results it 

desires diplomatically and unable to convince the Chinese, for example, of 

the n eed for multilateral economic sanctions against North Korea, would 

conclude that it must take effective action to punish the North Koreans for 

their v iolations of both the NYf and the nonproliferation norm. Thus, the 

United S tates would attack those faciliti es which it believed were an 

integral part of the North Korean weapons development program. 

The United States could support its action by employing two justifications. First, the United S tates could note that a North Korea in possession 

of a nuclear warhead would have posed an unacceptable threat to South 

Korea, Japan, and to American forces deployed throughout Asia. S econd, 

the United States could assert that its attack will deter other potential 

proliferants from continuing their weapons development programs. These 

other nations, in effect, should learn the lesson that the United States will 

not tolerate nuclear proliferation and punishes those s tates that fail to heed 

their commitments to the NPT and to the international norm agains t 

proliferation. In this s cenario, the counter-proliferation event passes the 

punishment element of the test for reprisal. 

The Concept of Reprisal 1JeTsus the Concept of Self-Defense. While the 

United S tates could argue that it conducted i ts counter-proliferation activi ty to defend U.S. forces deployed abroad, that argument is unlikely to 

succeed in classifying the action as one of self-defense for the reasons 

41 
The Newport Papers 

outlined in Chapter V above. In these circums tances, the third stipulation 

of the test would be satisfied, and the United States would have committed 

an act of reprisal. In other words, the U nited States would have violated 

current international law and undermined its position wi thin the international community. The United States might be willing to accept some 

international condemnation if it b elieved that the danger represented by a 

North Korean bomb was intolerable. U.S. policy makers may have to make 

that decision, but they should not deliberate under the illusion that, 

pursuant to current law, the international community will accept the 

legality of the decision. Perhaps if the United States were able to form a 

multilateral coali tion, the action might be legitimate pursuant to article 42 

or article 52 of the U .N. Charter; 1 29 however, as noted previously, forming 

multilateral coalitions to take preemptive action is not an easy task. 

An Exception to the Reprisal Prohibition in 

Orde r to Combat Prol iferation? 

This analysis therefore finds that an act of counter-proliferation would 

violate current provisions of international law. However, it should not 

necessarily be concluded that the United States should abandon the 

counter-proliferation strategy. The time may have arrived for the international community to carve out an exception to the prohibition against 

reprisals in order to combat the proliferation of weapons of mass destruction. Multiple arguments in favor of the creation of such an exception exist. 

However, strong arguments against the establishment of an exception also 

exist. Both sides of the debate need to be examined. 

Arguments in Favor of an Exception. Three arguments favor the creation 

of a reprisal exception. First, the destructive power of nuclear weapons 

makes their development a far greater threat to international peace and 

security than any other potential transgression of international law. The 

international community needs radical solutions to prevent states from 

acquiring these devices . Ob taining an effective international consensus 

that resolves the prob lem of proliferation has proven difficult in the past 

and is unlikely to b ecome any easier in the near future. Thus, to preserve 

the norm against proliferation, it is important to give states greater leeway 

to take reprisals against those states illicitly developing nuclear warheads. 

Second, the international legal norms developed in the aftermath of 

World War II do not adequately address the challenges of the New World 

42 
Counter-Proliferation Strategy 

O rder. In an era when fears of rampant proliferation are prominent, the 

time has arrived to reconsider the international preference for the absence 

of conflict over jus tice. 1 30 If nonproliferation provides the only j ustifiable 

course of the international community, then its members must have the 

requisite tools to combat the threat of the illicit acquisition of nuclear 

weapons . 13 I Counter-proliferation, the argument runs, represen ts the mos t 

effective tool to combat the spread of these weapons. 

Third, while reprisals may be illegal pursuant to intemational law, they 

do occur.B

2 In fact, the international community frequently fails to condemn them. Anthony Clark Arend observes that: 

[W]hile states are formally unwilling to depart from the Charter 

paradigm, in j ustifying their actions they have expanded the notion of 

self-defense to include deterrence and even punishment. Such a broadened notion of self-defense, while perhaps politically and even morally 

commendable, seems to be clearly at variance with the Charter's ideal 

of peace over iustice.133 

Perhaps it is time to admit that the norm against reprisals has become 

archaic and that the international community should fashion an updated 

norm, which recognizes that reprisals have become accepted de facto, 

permitting limited reprisals against the most dangerous proliferants. 

Arguments against an Exception. The arguments against estab lishing an 

exception to the reprisal prohibition hinge on the traditional reasoning 

that it would lead to an explosion of unchecked violence throughout the 

world. According to this position, it would be impossible to limit an 

exception to the nonproliferation context. Maintaining the current international law on reprisals is preferable to creating the inevitable "slippery 

slope" that an exception would produce, and the costs of establishing a 

reprisal exception greatly exceed any potential b enefits . An exception 

would create a license to commit violence and would discriminate against 

the weaker states of the international community. 

This argument also posits that despite the merits of a counter-proliferation strategy, it is inherently imperialistic. Establishi ng an exception for 

reprisals against proliferation would condone such imperialism. An exception would create a tool only for the strong and would violate the rights of 

weaker Third World nations . Furthermore, an exception would contain an 

element of hypocrisy, as those s tates calling for its creation would be the 

very s tates that currently possess nuclear arsenals or which are allied to the 

nuclear powers . 

43 
The Newport Papers 

The creation of an exception also would undermine the current nonproliferation regime that it seeks to protect. The exception would demonstrate 

that the goals of the NPf had failed, and would show that the nuclear-weapons states have become unwilling to satisfy their treaty commitments. This 

might cause the collapse of the nonproliferation regime, leading s tates to 

deny inspection rights to the !AEA. States might feel compelled to place 

their nuclear programs underground, both Ii terally and figuratively, where 

they would be safer from attack. 

On a more cynical note, the United States may desire that these types of 

reprisals remain legally unacceptable, and yet conduct them nonetheless, 

reasoning that the gain from preventing the potential proliferant from 

obtaining a nuclear warhead dramatically outweighs the political toll 

incurred for violating the reprisal prohibition. The prohib ition against 

reprisals would be sustained, theoretically preventing other states, which 

may possess interests adverse to those of the United States, from engaging 

in similar acts. In essence, the United States, like Israel before it, would 

accept condemnation as a type of international "cost of doing business" in 

an attempt to have it both ways, maintaining the norms against both 

proliferation and reprisal. 

Conclusions on Self-Defense and Reprisal 

The previous sections have classified counter-proliferation within the 

framework of international law on self-defense and reprisal, concluding 

that the United States would have difficulty justifying an act of counterproliferation on the basis of anticipatory self-defense. The requirements of 

anticipatory self-defense are too arduous for a counter-proliferation strike 

to meet. Counter-proliferation fits more readily into the framework of 

reprisal. However, under current international law, reprisals are illegal. 

Consequently, if the United States wants to pursue this strategy, it mus t 

either choose to violate current i nternational law or convince the international community that the time has come to change the legal norm against 

reprisal in order to supply that community with another instrument in i ts 

ongoing campaign against nuclear proliferation. 

44 
Counter-Proliferation and War 

T

HE PREVIOUS SECTIONS of this study have concentrated on the use of 

counter-proliferation measures as a tool to prevent the acquisition of 

nuclear weapons before the outbreak of war between a state developing a 

nuclear weapon and those opposed to that production. This section focuses 

on the problem during a time of war. 134 To what extent are counter-proliferation efforts acceptable in the wartime setting? This question grew in 

importance with the recent review of U.S. war plans in preparation for the 

possible outbreak of hostilities with North Korea. 1 35 

The Clin ton administration is studying questions surrounding counterproliferation in other regions as weB, "ordering regional commanders to 

develop detailed plans for thwarting proliferation threats in their areas, 

among other measures.,,1 36 For example, in the event of a conflict between 

the United States and Iran, U.S. military officials will need to address the 

Iranian weapons development program. The issue of what action to take 

against nuclear faciIi ties in a time of war also could occur i f a second conflict 

with Iraq were to break out. The United S tates, under the auspices of the 

United Nations, showed little reluctance during the 199 1 Gulf War in 

striking the Iraqi nuclear program. Would the U nited States, acting alone 

or as part of a U.N.-sanctioned coalition, be justified in attacking Iraq's 

nuclear program a second time? 

The pages that follow explore these questions from a legal perspective, 

concentrating on lessons drawn from three sources : customary international law, international accords on the law of armed conflict, and the 
The Newport Papers 

precedent of earlier conflicts . Unlike the previous sections of this study, 

which focused on international law regarding resort to the use of force (jus 

ad bellum), this section centers on the legal ramifications of the use of 

counter-proliferation measures during a time of war. Thus, an understanding of the laws of war (jus in bello), which limit the permissible military 

activities offorces embroiled in combat, is crucial. The Hague Convention 

of 1 907,137 the Geneva Conventions of 1 949,1 3 8 and the 1 977 Additional 

Protocols to these Conventions 1 39 are particularly important, for these 

documents provide the most comprehensive representation of the current 

state of thinking regarding the laws of war. 

These legal issues merit discussion because the United States depends 

on the international legal regime during periods of both peace and war. If 

the United States were to become embroiled in hostilities which required 

the use of counter-proliferations methods, it would want to conduct those 

efforts within the framework of the laws of war to maintain favorable 

standing within the international community. A wartime counter-proliferation endeavor would be far more likely to receive broad international 

support if the U ni ted States were to follow the requirements of the laws of 

h ' f ' . I h 1 40 war t an 1 11 were to VIO ate t ese norms. 

The Customary Laws of War 

The core legal principles which address the acceptability of attacks 

against military targets under the traditional laws of war have developed 

gradually over the centuries. However, through multilateral accords on the 

laws of war, the international communi ty, particularly since the conclusion 

of World War II, has narrowed the range of targets legally subject to attack. 

Thus, while the basic test to determine the legality of attacks has remained 

essentially the same, the list of types of targets passing that standard has 

dwindled in an attempt to prevent civilian casualties. 

Necessity. A two-part test identifies the requisite characteristics a target 

must possess before a belligerent may attack it. First, the target mus t 

possess some military value. The customary international laws of war, as 

well as subsequent international conventions, prohibit attacks against 

targets possessing little or no military value. For example, indiscriminate 

attacks against civilian populations are forbidden.141 

46 
Counter-Proliferation Strategy 

The test to determine whether an objective is a legitimate military target 

depends upon the contribution i ts des truction would make to the ultimate 

outcome of the war. As L.c. Green explains : 

[T]he decision whether an objective is legitimate or not depends upon 

the contribution an attack on that objective will make to ultimate 

victory or the success of the operation of which the attack is pan. But 

with objects normally devoted to civilian use, such as schools, hospitals 

or places of worship, if there is any doubt they are being used for such 

purposes or being put to military use, they shall receive the benefit of 

the doubt and not be subjected to attack.

l�2 

However, tradi tional interpreta tions of the necessi ty requiremen t have 

given nations wide latitude to conduct attacks against a broad range of 

targets, including, for example, enemy merchant ships and steel mines.

143 

Belligerents have not found the necessity requirement difficult to satisfy. 

Proportionality. In addition to the requirement that a nation conduct its 

attack against a military objective, the extent of that attack must be 

proportionate to the amount of force needed to des troy the target. Thus, 

"[ e ]ven if the destruction of a target satisfies the test of military necessity, 

excessive damage should be prohibited.,,

1 44 The justification for this part 

of the test is tha t it serves the goal of preven ting unnecessary suffering on 

the part of noncombatants. The test to determine whether the force employed has been excessive is objective.145 In other words, a nation may use 

that amount of force necessary to accomplish its mission which a reasonable nation would employ to accomplish a similar task. Hence, "it is not a 

breach of the law of armed conflict if civilians suffer injury incidental to 

attack upon a lawful military objective, so long as such incidental injury is 

not disproportionate to the military objective which it is sought to 

achieve . . . . ,

,

146 

International Conventions on the Laws of War 

The treaties and conventions dealing with the laws of war codify the 

customary requirements of necessi ty and proportionality. For example, 

the requirement of necessity may be found in Article 23(g) of the 1 907 

Hague Convention, which prohibits nations from taking action "[t]o 

destroy or seize the enemy's property, unless such des truction or seizure 

be imperatively demanded by the necessities of war.,

,

1 47 The 1 949 Geneva 

47 
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Conventions echo this necessity requirement. 1 48 The proportionality requirement also has been codified i nto the conventional law of war. 

The principle of proponionality is embodied in Anicle 23(e) and (g) 

of the Annex to the Hague Convention No. IV of 1 907. In addition, it 

is contained in several provisions of the 1977 Protocol I: Article 25, the 

first anicle of the section on m ethods and means of warfare, prohibits 

in paragraph 2 the employment of weapons, projectiles and material 

and methods of warfary S

f a nature to cause 'superfluous' injury or 

'unnecessary' suffering. 4 

Lessons 

The primary lesson military strategists should draw from both the 

customary and conventional provisions of the law of war is that attacks 

against any type of target must meet certain requirements. First, the strike 

must occur against only those targets that reasonably merit attack. An 

attack designed to destroy an enemy's economic infrastructure, for example, must bear some rational relationship to a military objective. Second, 

the attack must not cause damage that leads to enormous civilian casualties 

or other suffering. The intensi ty of the attack must correspond reasonably 

with the minimum amount of force necessary to ensure the accomplishment of the military mission. The mili tary planner of a counter-proliferation mission during a time of war mus t keep these dictates in mind when 

deciding on, and devising, such an attack. 

Protocol I 

Particularly i mportant to the discussion of counter-proliferation in the 

wartime setting is the 1977 Geneva Protocol I Additional to the Geneva 

Convention of 1949.

1 50 This document outlines the requirements which 

combatants must follow when engaged in armed conflict. Article 56 of the 

Protocol specifically addresses the targeting of nuclear reactors during 

confli ct, restricting the ability of belligerents to attack installations that 

could release "dangerous forces" if destroyed. Other articles of the Protocol 

prohibit reprisals against civilians (Article 51) and attacks causing excessive harm to the environment (Article 35)

.

151 

Complicating an?; analysis of Protocol I is the fact that the United S tates 

has not ratified it.

1 2 President Ronald Reagan decided not to submit the 

Protocol to the Senate for ratification. In his letter to the Senate declaring 

48 
Counter-Proliferation Strategy 

that he would not send the Protocol for ratification, President Reagan 

stated, "[Protocol I] contains provisions that would undermine humanitarian law and endanger civilians in war. One of its provisions, for exam pIe, 

would automatically treat as an international conflict any so-called 'war of 

national liberation.' . . . Finally, the Joint Chiefs of S taff have also concluded that a number of the provisions of the Protocol are militarily 

unacceptable."

l S3 

Despi te the fact that the United States has not ratified the Protocol, 

several reasons warrant a study of its provi sions. First, the United States is 

a signatory to the ProtocoL1 S4 As such

l �ursuant to Article 18 of the Vienna 

Convention on the Law of Treaties, 

S the United States "is obliged to 

refrain from acts which would defeat [the Protocol's] object and purpose ... until it shall have made its intention clear not to become a party 

to the treaty.,,1 5

6 President Reagan's statement to the Senate might suffice 

as a clear proclamation that the United States did not intend to abide by 

Proto col I's provisions. However, it is also possible that this internal U.S. 

government communication did not provide adequate notice to the o ther 

parties of the Protocol that this country did not intend to abide by its 

provisions. It is possible that either the present or a future administration 

will submit the Protocol to the Senate for ratification. Moreover, according 

to the U.S. Department of Defense, Chairman of the Joint Chiefs of Staff 

Colin Powell noted that the law of war, including Protocol I, influenced 

decisions throughout the execution of the Persian Gulf War.

1 S7 Such 

consideration demonstrates that the Protocol has at least some influence 

on U.S. policy makers. 

Although the United States has not ratified the Pro tocol} several members of the North Atlantic Treaty Organization (N ato) have. S8 Since some 

Nato members are considering participation in the counter-proliferation 

initiative, l S9 the limits placed on the members of Nato by Protocol I should 

concern U.S. military planners. Furthermore, South Korea, a key U.S. ally 

in Asia, has ratified the Protocol.160 Finally, while the Protocol may 

contain flaws, it can provide useful guidance to military strategists on the 

limits of military force in the counter-proliferation equation. 

Article 56. The key provision of the Protocol for the counter-proliferation 

discussion is Article 56, whi ch states, in part: 

1. Works or installations containing dangerous forces, namely dams, 

dykes and nuclear electrical generating stations, shall not be made the 

object of attack, even where these objects are military objectives, if such 

49 

. 

I 

f· 

l--

I \ 

1 
The Newport Papers 

attack may cause the release of dangerous forces and consequent severe 

losses among the civilian population. Other military objectives located 

at or in the vicinity of these works or installations shall not be made 

the object of attack if such attack may cause the release of dangerous 

forces from the works or installations and consequent severe losses 

among the civilian population. 

2. The special protection against attack provided by paragraph 1 shall 

cease: 

... (b) for a nuclear electrical generating station only if it provides 

electric power in regular, significant and direct support of m ilitary 

operations and if such attack is the only feasible way to terminate 

such support. 

(c) for other military objectives located at or in the vicinity of these 

works or installations only if they are used in regular, significant 

and direct support of military operations and if such attack is the 

only feasible way to terminate such support .... 

5. The Parties to the conflict shall endeavor to avoid locating any 

military objectives in the vicinity of the works or installations mentioned in paragraph 1. Nevertheless, installations erected for the sale 

purpose of defending the protected works or installations from attack 

are permissible and shall not themselves be made the object of attack, 

provided that they are not used in hostilities except for defensive 

actions necessary to respond to attacks against the protected works or 

installations and that their armament is limited to weapons capable 

only of repelling hostile action against the protected works or installations . . . , 

The language of this article may place significant res trictions on a nation 

contemplating the destruction of the mos t attractive targets in a counterproliferation scenario. However) the scope of the article is the subject of 

intense debate) and its meaning requires a thorough examination of i ts 

somewhat confusing text. 161 

While the article protects "dams) dykes and nuclear electrical generating 

stations)" this list is not intended to be exhaustive) because the article is 

designed to protect any facility containing a "dangerous force" that could) 

if the facility were des troyed, cause "severe loss among the civilian population." Thus, an initial reading of the article appears to demonstrate that 

its language may protect a nuclear reprocessing p lant containing fissionable material or a nuclear reactor devoted solely to the production of 

weapons-grade plutonium) since the destruction of such facilities could 

release radioactive material. This interpretation is reinforced by noting 

that even if the facility were used exclusively for military purposes) and 

50 
Counter-Proliferation Strategy 

therefore normally would be a legitimate target, it does not necessarily 

sacrifice its protection from attack6 as "even ... military objectives" fall 

within the language of the article.

l 2 

However, b efore concluding that all nuclear facilities are off-limits, one 

must take the analysis of Article 56 a s tep further. As Burrus Carnahan 

notes, " there is no international standard for determining when civilian 

casualties b ecome 'severe'; the party attacking a nuclear power station and 

the party defending it are likely to have very d ifferent ideas on that 

subject.,,

1 63 The article allows an exception to the prohibition for attacks 

upon a "nuclear electrical generating station only if it provides electric 

power in regular, significant and direct support of military operations and 

if such attack is the only feasible way to terminate such support." This 

phrase appears to allow an attack upon a nuclear reactor supplying power 

to a belligerent's armed forces; however, this provision is silent on attacks 

against other nuclear facilities if they provide fissionable material to a 

belligerent's weapons development program. 164 The article contains an 

exception allowing attacks against "other military objectives located at or 

in the vicini ty of these works or i nstallations only if they are used in regular, 

significant and direct support of military operations .... " However, this 

provision addresses attacks upon weapons systems, such as artillery and 

surface-to-air missiles, devoted to the defense of the facili ty containing the 

dangerous force. Consequently, the definition of "other military objectives" would not appear to include a reprocessing or an enrichment plant. 

Not surprisingly, scholars have come to varying conclusions regarding 

Article 56 and i ts exceptions. Anthony Leib ler, for example, believes that 

" the exceptions in Article 56 are discrete, specific and leave minimal scope 

for divergent interpretation.,,16S On the other hand, W. Hays Parks b elieves that the article does not prohibit attacks against nuclear facilities 

utilized in a weapons development program,166 while Burrus Carnahan 

simply concludes that " Article 56 seems more likely to pro duce confusion 

and mutual recrimination than any genuine protection for civilian popuI

·

· . ,,1 67 anons In wartlme. 

Article 56 does not es tablish whether attacks against facilities dedicated 

to the developmen t of nuclear weapons are permitted. The language of this 

provision is too clouded to conclude definitively whether attacks against 

these facilities are prohibited. States which are parties to the Protocol will 

have to examine the question closely to determine an appropriate action. 

From this analysis, one may conclude that a nation employing a counterproliferation measure which attacks a facility containing nuclear material 

51 
The Newport Papers 

will face allegations that it, in fact, has violated Protocol !. The United 

States may point to two factors to defend itself should it be subjected to 

such scrutiny. First, the U nited States, as noted above, has not ratified the 

Protocol, and consequently, its provisions should not apply to this country. 

Second, U.S. policy makers could note that the "rules embodied in Article 

56 are not (at present) incorporated into customary international law.,, 168 

Hence, the United S tates might argue that it may attack a belligerent's 

facility containing a dangerous force so long as that facility is a legitimate 

military objective. 

While the United States may be able to defend itself adequately against 

allegations that it had violated Article 56, some of its allies that are 

members of Protocol I may face a more daunting task in defending themselves from similar allegations. South Korea, for example, as a member of 

the Protocol, may not be able to justify an attack against a North Korean 

nuclear facility if a restrictive interpretation of Article 56 is accepted. This 

fact could represent a substantial obstacle for any U.S. counter-proliferation endeavor against North Korea which involves the deployment of 

South Korean forces. If these forces are prevented from striking the North 

Korean nuclear program, it would then become questionable whether an 

ally which has come to the aid of South Korea, e.g., the U nited States, could 

attack the North's facilities in its stead. Similar concerns could face the 

Nato alliance if it were to take a counter-proliferation action against the 

weapons development programs of, for example, either Iran or I raq. 

Moreover, Article 85(3) specifies that a "grave b reach" of the Protocol 

has transpired when a wilful attack releasing a dangerous force occurs 

against a facility protected by Article 56. 169 Article 85(5) of the Protocol 

states that such grave b reaches "shall be regarded as war crimes ." Thus, a 

breach of Article 56 could lead to serious consequences against those who 

ordered an attack resulting in the release of a dangerous force. Additionally, 

Article 91 of the Protocol mandates that offenders pay compensation to 

illegally attacked states. 

Other Articles of Protocol I. Since Article 56 itself appears inconclusive 

regarding the permissibility of attacks against nuclear facilities, it becomes 

important to examine other articles of the Protocol to determine whether 

they can shed light on the issue. Again, while the U nited States has not 

ratified this accord, its provisions must have some i nfluence upon the 

international communit?'

1 since as of 1992 seventy-eight nations had either 

ratified or acceded to it. 0 

52 
Counter-Proliferation Strategy 

Article 57(2) (a) (ii) of the Protocol codifies the principle of proportionI, &: d ' " 1 1 171 

a t ty loun m customary m ternatlona aw, b y provl 'dmg ' h t at: 

[T]hose who plan or decide upon an attack shall , , , take all feasible 

precautions in the choice of means and methods of attack with a view 

to avoiding, and in any event of minimising, incidentaljoss of civilian 

life, injury to civilians and damage to civilian objects,1 2 

The importance of this provision is enhanced when one evaluates it in 

relation to Article 35(3) of the Protocol, which prohibits the employment 

of "methods or means of warfare which are i ntended, or may b e expected, 

to cause widespread, long-term and severe damage to the natural environment,,,173 Unfortunately, the latter provision contains no explicit defi nition of what constitutes "severe damage to the natural environment.,,174 

However, a significant release of radiation or radioactive material whi ch 

contaminates the surrounding area presumably would qualify as the type 

of "severe d amage" contemplated by Article 35 , As with the language of 

Article 5 6, a breach of Article 35 by a party to the Protocol could lead to 

severe consequences against those ordering and participating in an attack 

against a nuclear facili ty that released signi ficant amounts of nuclear fallout 

upon destruction. 

Article 5 2(2) of the Protocol provides a definition of what constitutes a 

military objective, thereby codifying the customary international law requirement of military necessity. Attacks are "limited to those objects which 

by their nature, location, purpose or use make an effective contribution to 

military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military 

advantage." Like the customary international requirement of necessi ty, the 

Protocol I standard is objective, demanding that an attacker employ reasoned judgmen t when deciding which targets to attack. 

Other Attempts to Protect Nuclear Facilities 

In addition to the provisions of Protocol I, other diplomatic efforts to 

establish accords to protect nuclear facilities from attack have transpired. 

None of these attempts have been successful; however, a portion of the 

international communi ty has shown interest in es tablishi ng some type of 

convention prohibiting attacks against nuclear facilities, and thus, these 

efforts merit a brief discussion. 

53 
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Swedish Proposals for a Treaty Prohibiting Radiological Weapons and 

the Release or Dissemination of Radioactive Material for Hostile Purposes. In 1980, the government of Sweden proposed a treaty that would 

protect nuclear facili ties from attack during hostilities.175 This initiative 

would have prevented both the use of radioactive material as a weapon as 

well as attacks against facilities that might release radioactive material . 176 

The facili ties protected by the accord were to have been listed on a register 

and subject to inspection by a multilateral agency similar to the IAEA. 

The Swedish plan has not been accepted. As Burrus Carnahan argues, 

the United States has been particularly vocal in its opposition to the plan: 

The United States and its allies have refused to accept the inclusion of 

attacks on nuclear facilities in a radiological weapons convention, and 

Sweden and its supponers have insisted that this problem be covered. 

The Swedish proposal poses practical military p roblems, not the least 

of which are that it protects facilities that are legitimate military targets 

and would never permit an attack on a pro;ected nuclear facility if 

radiation in any amount would be released.I7 

A second problem facing the Swedish proposal is that it would depend 

upon the credibility of safeguard inspections similar to those that have 

sought to protect the integrity of the NPT. Given the haphazard record of 

IAEA inspections in Iraq and the difficulties the IAEA has faced in guaranteeing North Korea's NPT compliance, it is unlikely that the international 

community would have much confidence in such a regime. 

Other discussions have occurred which have had the goal of creating a 

ban on the use of radiological weapons. If adopted, such an agreement, 

known as the Radiological Weapons Convention, not only would prohibit 

the use of weapons such as the neutron bomb, but also would ban attacks 

against facilities which could result in the release of radiation. A counterproliferation attack against a nuclear facility would run afoul of such an 

accord. As yet, no agreement has been reached on the Radiological Weapons Convention, so attacks against these facilities have not been explicitly 

banned. 

The NPT Review Conferences. Every five years the signatory states to the 

NPT hold a review conference to discuss issues relating to the treaty. At 

both the 1 985 and 1990 conferences, the parties addressed the topic of 

attacks against nuclear facilities.178 Egypt presented a paper at the 1 985 

conference linking attacks on nuclear facilities to articles III and IV of the 

treaty.179 Article III details the establishment of the safeguards regime 

54 
Counter-Proliferation Strategy 

under the NPT, while article IV gives each party to the treaty the right to 

pursue peaceful uses of nuclear energy. While the final conference report 

did not accept all aspects of the Egyptian proposal, it did state that an attack 

on a safeguarded facili ty would necessitate immediate U.N. Security Coun-

'1 . 1 80 Cl attentlon. 

The 1990 review conference did not release a final report due to a dispute 

among the parties regarding the proposed adoption of a comprehensive b an 

on the testing of nuclear warheads. However, "'[i]f a final declaration had 

been adopted, the 1 990 review conference would have encouraged all 

parties to provide immediate assis tance to any other party to the treaty 

whose safeguarded nuclear facilities were attacked, and would also have 

appealed to all s tates to consider the danger of releasing radioactivi ty when 

reviewing their military doctrines. ,,

181 

While none of these initiatives has succeeded in estab lishing a prohibition against attacks on nuclear facilities, the possibility exists that the topic 

may be addressed again in the future, particularly if an attack on a nuclear 

facility were to occur, resulting in the release of significant amounts of 

radiation. The United States and its allies may face the prospect that some 

aspect of international law may expressly forb id strikes agains t nuclear 

facilities. Currently, the norms of the cus tomary international law of war 

dictate that any attack against a nuclear facility not cause disproportionate 

damage to either the environment or noncombatants . 

The Precedents 

At leas t three incidents have occurred in the nuclear age in which 

weapons development facilities have come under attack during a time of 

war, not including the 198 1 Israeli attack on Tamuz I discussed earlier. 

The three instances of attack were the Allied air strikes on the German 

atomic bomb program during World War I I, attacks by I ran and Iraq upon 

one another's nuclear facilities during their war between 1 980 and 1988, 

and the attacks conducted by U.S.-led coalition forces against Iraqi nuclear 

facili ties during the Gulf War of 1 991 . 

A llied Attacks against Nazi Atomic Facilities. During World War II, 

Allied forces conducted air strikes against German atomic facilities located 

in Norway. I 82 The Germans were using these facilities to produce the 

heavy water needed for the production of an atomic bomb .

I8 The Allied 

attacks, which occurred prior to the signing of the Geneva Conventions 

55 
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and Protocol I, were subject to the customary requirements of necessity 

and proportionality. 

Given the scope of the war and the need to prevent the construction of 

a German bomb, it is hard to dispute the need to attack these facilities. The 

existence of a German bomb could have altered the course of the war in 

Europe, perhaps compelling the Allies to settle with the Germans instead 

of striving for total victory. Hence, the Allied attacks satisfied the first 

element of the customary international law test. The Allies also fulfilled 

the proportionality requirement of this test. The destruction of the heavy 

water facilities did not release great amounts of radioactive material that 

could have caused severe civilian casualties in Scandinavia or throughout 

Europe. 

Given the need for and the scope of the Allied efforts, it is probable that 

the attacks on the German facilities would have fulfilled the requirements 

of Article S6 of Protocol I had they existed during World War 11. 184 First, 

the heavy water facilities did not possess the type of "dangerous forces" 

contemplated by the article. Second, even if they had, the need to attack 

the facilities as a military objective would have fit within the exception of 

Article 56(2)(c). Moreover, the attacks would have fit within the confines 

of both Article 52 on necessity and Article 57 on proportionality. 

Attacks against Nuclear Facilities during the Iran-Iraq War. During the 

war between Iran and Iraq, waged from 1 980 to 1988, at various times the 

Iranians attacked Iraqi nuclear facilities. ISS These attacks occurred after 

the signing of Protocol I; however, Iran, although a signatory, had not 

ratified the accord. 186 Theoretically, Article 18 of the Vienna Convention 

on the Law of Treaties required the Iranians to refrain from actions that 

could have defeated the Protocol's purpose.187 For that reason, one can 

make the argument that the Iranians violated international law by ignoring 

their treaty commitments and violated Article 56 of Protocol I. 

As for the attacks themselves, assuming that the parties were not constrained by the provisions of the Protocol, they too are judged by the 

standards of the customary international law of war, namely the concepts 

of necessity and proportionali ty. As noted above, the necessi ty requiremen t 

of this test is objective. Would a reasonable state similarly situated have 

determined that the Iraqi facilities were a legitimate military objective and 

made such an attack? An affirmative answer to this question seems appropriate. The international community was aware of the Iraqi interest in 

developing a nuclear weapon. Given the danger posed to Iran by the 

56 
Counter-Proliferation Strategy 

development of an Iraqi nuclear weapon, it is reasonable to conclude that 

targeting the facilities was legitimate. Moreover, even had the attacks been 

conducted solely to destroy the electrical power capacity of Iraq, the 

Iranians could have justified these attacks on the basis of the need to disable 

Iraq's supply of energy to its war-sm.taining infrastructure and military 

forces . 

The tes t for proportionali ty presen ts a stiffer hurdle if the Iranian attacks 

are to be justified. The fact that a debate existed about the presence of 

nuclear material at the Iraqi facilities assists in justifying the I ranian action. 

Had the Iraqi nuclear facilities unmistakably possessed the type of "dangerous forces" contemplated by Article 56 of the Protocol, the Iranian 

attacks would be subject to closer scrutiny. While Iran had not ratified the 

Protocol, the effects of the attack could have violated the customary 

proportionality requirement. Had there b een a significant re lease of radiation from the Iraqi facili ties, it could have caused massive civilian casual ties 

(including within Iran); however, given the fact that the Iranians were 

never capable of completely destroying the faciliti es and that the i ntroduction of a nuclear capability could have changed the war's balance, the 

Iranian attacks pass the proportionality tes t. Fortunately, the attacks did 

not result in the release of significant amounts of radiation over the Iraqi 

countryside. Had such a calamity occurred, the analysis regarding the 

legality of the operation might have differed. 

In light of this analysis, the attacks against the I raqi facilities appear 

legitimate. As Frits Kalshoven concludes : 

There is ... little evidence that customary law already prohibits attacks on nuclear power stations other than in terms of the general 

principles for the protection of the civilian population and civilian 

objects. It seems therefore safe to conclude that as between the parties 

to the [Iran-Iraq] Gulf War, an attack on a nuclear power station would 

have been perfectly proper if there were sufficient grounds to regard 

the object as a military objective and the attack could be carried out 

without unduly severe losses among the civilian population.IS8 

The Iranian attacks satisfied both parts of this test. They should be 

considered legitimate pursuant to the present tenets of customary international law. 

A similar analysis applies to Iraqi attacks against the nuclear fad li ties of 

Iran. The necessity and proportionality standards demanded that Iraq 

exercise a reasonable amount of restraint with respect to their attacks 

against Iranian nuclear facilities. Again, as Kalshoven notes, the Iraqi 

57 
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attacks in all likelihood were proper pursuant to the international legal 

. f h d 1 89 

reqUirements 0 t e ay. 

Anacks against Iraqi Nuclear Facilities during "Operation Desen 

Storm. " The U.S.-led coalition repeatedly attacked the nuclear facili ti es of 

Iraq during the Gulf War of 1 991. U .S. fighter planes bombed two Iraqi 

research reactors located at Tuwaitha. 190 The U.S.-led coalition conducted 

these attacks to prevent the Iraqis from developing a nuclear device. 

Preventing Iraqi proliferation became one of the major aims of the U nited 

States . However, the legitimacy of these attacks s hould be examined. While 

the assumption of the United States was that they were legitimate, several 

issues should be examined to determine whether the U.S. conclusion was 

proper. 

The fi rst question is whether attacks against Iraqi nuclear facilities were 

part of the U.N. mandate to free Kuwait. No specific provision of any 

Security Council Resolution called for the destruction of Iraqi nuclear 

facilities.191 Security Council Renlution 678 did authorize U .N. members 

to use force "to restore international peace and security,,192 to the region. 

Perhaps this phrase gave the coalition the requisite authority to attack the 

facilities. However, some have ques tioned this assumption. Burrus Carnahan, for example, suggests that the attacks were not authorized by Resolution 678, stating that the facili ties targeted were not a major part of the I raqi 

nuclear weapons development program, and hence the attacks were illegitimate exploitations of the Resolution.1 93 Settlement of this debate goes 

beyond the scope of this paper.194 However, the Resolution did not explicitly prevent members of the coalition from employing any type of force 

which they deemed necessary to implement the U.N. mandate. 1 95 The 

assumption might be that since the U nited Nations did not prohibit these 

attacks, "it is probably fair to say that the U ni ted States and allied forces 

conducted their operations in accordance with international law.,,

196 

Kuwait and the United States also justified the attacks on the basis of 

collective self-defense pursuant to Article 5 1 of the Charter. Since the 

adversaries were engaged in hostilities, this action would not fall under the 

rubric of anticipatory self-defense. Rather, this action would be classified 

within the parameters of traditional, non-anticipatory self-defense. Even 

if this justification were proper, the attacks would be required to meet the 

tests of the laws of war. 

Thus, the analysis returns to the traditional legal p rincip les on the 

laws of war, specifically those regarding the factors of necessity and 

58 
Counter-Proliferation Strategy 

proportionality. Did U.S.-led forces comply with these requirements when 

conducting their attacks against the Iraqi facilities? Since the United S tates 

took the lead in these attacks, did it comply with international law during 

the raids ? This discussion is further complicated by the fact that some 

members of the Gulf War coalition had ratified Protocol I, and thus 

theoretically were compelled to follow its provisions, including the mandates of Article 56 pertaining to the prohibition on the release of dangerous 

forces. This problem is mitigated to a degree by the fact that two of the 

major participants in the air attacks had not ratified the Protocol. The 

Uni ted States and the United Kingdom are not among its members. 

However, both Saudi Arabia, whose forces participated in these attacks and 

from whose terri tory the attacks were staged, and Kuwait, whose pilots 

participated in the attacks, had ratified the Protocol,1 97 thereby endangering the legality of their participation. 

For the United States, the permissibility of the attacks on the I raqi 

facili ties turns on their legality under the provisions of the customary 

international law of war. Once again, the requirements of necessity and 

proportionality provide the standards by which such attacks are judged. 

The necessity requirement in this case is met fairly easily, given the broad 

definition of the term "military objective" and the wide discretion states 

have in determining si tes that qualify as targets subject to attack.198 Since 

U.S. intelligence reports had concluded that the Iraqi facilities were being 

used for weapons research, it was reasonable for the United States to 

conclude that attacking the facilities was necessary. Although the facilities 

at Tuwaitha were subject to IAEA inspection,1 99 given the Iraqi interest in 

clandestine nuclear weapons development, the attacks were justified. 

The proportionali ty requirement, however, represents a sterner test, for 

a significan t release of radiation from any of the Iraqi nuclear facili ties was 

conceivable.2OO The United States and i ts Desert Storm allies had to "weigh 

the interests arisi ng from the success of the operation on the one hand, 

against the possible harmful effect upon protected persons and objects on 

the other. There must, therefore, be an acceptable relation between the 

legitimate destructive effect and undesirable collateral consequences.,,20 1 

The amount of radioactive material at the Iraqi facilities subject to release 

by attack was unknown. It may be hoped that the Uni ted States and its 

allies seriously considered the possibility of a significant release of radioactive material b efore engaging in their attacks. If they did, coming to the 

reasonable conclusion that the potential for significant radioactive release 

was minimal, then the attacks may be considered justified. However, if the 

59 
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United States failed to study the possibility of release, yet targeted the 

facilities nonetheless, the attacks might not pass the proportionality requirement (in spite of the fact that no radiation ultimately leaked), because 

a reasonable nation would have considered the possibility of a radiation 

release. The Iraqis accused the United States of attacking without regard 

to the possibility of the release of radioactive material. U.S. representatives 

denied the accusation.202 

A P roposed Legal Test for Attacks again st Faci lities Containi ng 

N uclear Material in a Time of War 

These precedents provide several lessons for any nation contemplating 

an attack against another's nuclear facilities during armed conflict. These 

types of strikes are not always jus tified, because they may violate either part 

of the customary intemational law test for permissible attacks, being either 

not necessary or not proportional. Moreover, if the state has ratified 

Protocol I, it mus t consider whether Article 56 prohibits such attacks. If 

so, then, at least for legal purposes, the state must find some alternative 

means to eliminate the adversary's nuclear capability. 

For the United S tates, which is not bound by the language of Article 56, 

the requirements are somewhat easier to satisfy; however, U.S. military 

planners still must obey the requirements of the customary international 

law of armed conflict. In Ugh t of this fact, the paragraphs below propose a 

three-part test designed to make easier any determination regarding the 

permissibility of an attack. Although other factors may contribute to a 

decision by the United States to attack another nation's nuclear facilities 

during war, this test will give U.S. policy makers some idea of the potential 

legal ramifications of their actions . 

Is the Target a Legitimate Military Objective? If the target possesses no 

legitimate military value, then all forms of international law prohibit an 

attack against i t. U.S. decision makers must establish that the target b ears 

some rational relationship to the military capabilities of the adversary. This 

s tandard historically has not b een difficult to meet.

2

03 1f the target represents a legitimate military objective, despi te the fact that it contains 

fissionable material, then international law permi ts the attack to this point. 

However, the inquiry does not end here, b ecause the attacker still must 

satisfy the proportionality requirement. 

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Counter-Proliferation Strategy 

Would the Attack Endanger Noncombatants? If the target were in an 

isolated area or if it were possible to destroy the target without causing a 

significant release of radioactive material, then the attack presumably 

would not endanger the lives of noncombatants on a significant scale. The 

attack would satisfy the proponionality requirement. The isolated location 

of these facilities would make the task ofU .S. military planners far simpler. 

The attack would pass both the necessity and proportionality stipulations, 

and be legitimate. 

Targets containing fissionable material are rarely in areas devoid of 

civilians. Often such facilities are located in areas with large popUlations. 

Furthermore, it might prove difficult to des troy the facility with confidence without accepting some chance that the attack would release at least 

some radioactive material. If such a release were to occur, planners mus t 

consider meteorological conditions in their calculations regarding an attack's permissibility. The question then turns on the extent of material 

released and the number of casualties reasonably expected due to the 

facility's destruction. 

Are the Likely Casualties Disproportionate to the Need to Destroy the 

Facility? A high likelihood that destruction of a nuclear facility would 

produce severe civilian casualties would suggest that such an attack would 

violate international law. The losses would be out of proportion with the 

need to attack unless some overwhelming justification could be demonstrated. For the United States, such a requirement might prove virtually 

impossible to m eet. The main tenance of the nuclear status quo would not 

jus tify an attack that caused the catas trophic loss of civilian life. Rather, 

the U nited States would have to provide evidence that the destruction of 

an adversary's nuclear facilities was the only way to prevent a devastating 

nuclear attack against its forces or population or those of an ally. The 

international community probab ly would find anything less than this 

justification insufficient to satisfy the proportionality requirement. 

Con clusions Drawn from the Laws of War 

Attacks against facilities containing nuclear material during a time of 

armed conflict must meet stringent conditions to satisfy the requirements 

of the laws of war. Although the United States has not ratified Protocol I, 

and therefore is not bound by its terms, the requirements of customary 

international law pose challenging obstacles to the use of armed force 

61 
The Newport Papers 

against a facility containing fissionable material. If the Uni ted States 

desires to target such facilities, it should develop methods that would 

prevent the release of large amounts of radioactive fallout that could 

produce enormous environmental destruction and severe civilian casualties. Without such methods, the United States may have to attack support 

facilities and weapon delivery systems to accomplish its military objectives. 

The legal risks associated with a release of radioactive material may be too 

great to attempt attacks on a facility containing nuclear material during a 

time a war. 

62 
VIKK 

Conclusions and Recommendations 

C

OUNTER-PROLIFERATION should become a key element in a comprehensive U.S. nonproliferation strategy. As p art of this strategy, U.S. 

policy makers must prepare for the selective application of counter-proliferation in its most aggressive forms. While it may be hoped that such an 

application will prove unnecessary, it is in the interests of the Uni ted S tates 

to have this option available. 

While the NYf and traditional nonproliferation schemes have worked 

reasonably well in containing the spread of nuclear weapons, economic and 

political pressures are building that are making it more difficult for the 

nonproliferation regime to survive. These pressures will continue to build 

even though the NYf was extended in 1 995 for an indefinite period. The 

pressures on the nonproliferation regime include the spread of sophisticated technology applicable in both the civilian and military spheres ; the 

dissolution of the Soviet Union, which has released into the global market 

both human expertise and poorly controlled fissionable material for use by 

potential proliferants; the limited resources and effectiveness of the IAEA; 

the limited scope of the language of the NYf; and the ongoing ambitions 

of a few states which are motivated for a variety of reasons to acquire a 

nuclear devi ce. 

In this environment, a time may arise when, despi te its best efforts, the 

Uni ted States confronts a nation wi th adverse interests that is on the verge 

of obtaining a nuclear weapon. For example, given U.S. strategic interests 

in the Persian Gulf region and Iran's current antipathy toward the Uni ted 
The Newport Papers 

States, U.S. policy makers may be unwilling to tolerate an Iran armed with 

nuclear weapons. The present nonproliferation regime is designed to avoid 

this scenario; however, that regime might fail, and the United States must 

have options, including military options, to address this possibility. 

The adoption of a counter-proliferation strategy fills that need. This 

paper has attempted to present the international legal challenges that the 

United S tates would face in the application of the counter-proliferation 

option. U.S. policy makers must recognize that the international legality 

of the application of counter-proliferation in its interdiction form is highly 

questionable under the present interpretations of intemational law and 

may jeopardize the position of the United States within the international 

community. Whether or not a norm prohibiting the proliferation of nuclear weapons may exist, particular ly for signatories of the NPT, no accepted 

mechanism involving the application of force exists to enforce that norm. 

A U.S. counter-proliferation strategy could fill this void; however, the 

introduction of the strategy will produce costs, including exposing the 

United States to allegations of an intentional violation of international law . 

Application of the strategy would endanger the viability of the NPT, 

especially if the nation subject to the strike were an NPT member and 

evidence of its nuclear ambitions were less than unquestionable, perhaps 

even admitted. 

Despite these legal barriers, the United States should pursue the 

counter-proliferation strategy. Conceivably, the United States might seek 

to expend diplomatic capital in an attempt to legitimize the application of 

forceful counter-proliferation. Besides the fact that this effort would meet 

with resistance, such a change could be undesirable for the United States, 

because if the application offorceful counter-proliferation becomes acceptable within the international community, it would become available to 

states other than the Uni ted States. In such an environment, some nations 

might undertake a counter-proliferation strike that would be legitimate in 

the eyes of international community but adverse to U.S. interests. The 

United States would not want an international legal environment in which 

an Indian counter-proliferation strike against Pakistan, for example, were 

legitimate. Furthermore, other states might use counter-proliferation as a 

shield to justify otherwise illegitimate attacks . 

Barring the establishment of a new norm permitting counter-proliferation 

strikes in their most aggressive form, any U.S. strike in a peacetime setting 

almost certainly would violate the current tenets of international law. Such a 

strike, depending upon its consequences, also might violate the laws of armed 

64 
Counter-Proliferation Strate/iY 

conflict during war. While this would be unfortunate, the United States 

should not sacrifice a potentially valuable strategic tool that could stem 

proliferation and enhance U.S. national security simply to maintain perfect 

adherence to a set of international legal rules that in many ways may have 

become outdated. Such blind adherence would place concerns about the 

nation's stature within the international community above all other national security interests.204 Abandoning the counter-proliferation option 

simply to conform to outdated international standards would be unwise. 

In ternational concerns have changed dramatically since the conclusion 

of the Cold War. No longer must the United S tates focus on containing the 

Soviet threat at the expense of other national securi ty interests. Rather, this 

nation mus t fashion a modern security policy that addresses the dangers 

of the post-Cold War era. A strategy of counter-proliferation should play a 

part in this scheme; however, those who develop this policy must comprehend both its legal and political implications. Failure to do so will ensure 

that the adoption of a strategy of counter-proliferation not only will violate 

the stipulations of international law but also migh t sacrifice the nonproliferation regime and jeopardize the status of the U nited States within the 

international community without enhancing the security of the nation. 

65 

Notes 

1. The United States, Russia, the People's Republic of China, Great Britain, and 

France developed n uclear warheads b efore the establishment of the 1968 Non-Proliferation 

of Nuclear Weapons Treaty (hereinafter NPT). The former Soviet Republics of Belarus, 

Kazakhstan, and Ukraine possessed nuclear weapons in the wake of the collapse of the 

Soviet Union. Each of these s tates has made commitments to return these weapons to 

Russia. India, which is not an NPT member, exploded what it deemed a "nuclear device" in 

1974. Another non-NPT nation, Israel, reportedly h as clandestinely developed a small 

nuclear arsenal. For a detailed account of the development of the Israeli bomb, see Seymour 

M. Hersh, The Samson Option: Israel's Nuclear Arsenal and American Foreign Policy (New 

York : Random House, 1991). In 1 993, South African President F.W. De Klerk admitted 

that South Africa at one time possessed a small number of nuclear warheads; however, 

according to De Klerk, South Africa had disman tled those warheads by 1991. For a 

recoun ting of the South African nuclear program, see Mitchell Reiss, BridledA mbition: Why 

Countries Constrain Their Nuclear Ambitions (Baltimore: The Woodrow Wilson Press, 1 995), 

pp. 7-43. Finally, in April 1 995, in a visit to the United States, Pakistani Prime Minister 

Benazir Bhutto admitted that Pakistan has the ability to b uild a nuclear weapon, but 

claimed that Pakistan had not actually done so. Thomas W. Lippman, "Bhutto Receives 

Clinton Promise of Aid," Washington Post, 12 April 1995, pp. AI, A3 1. 

2. U.S. Treaties, etc. "Treaty on the Non-Proliferation of Nuclear Weapons (NPT)," 

United States Treaties alld Other InternationalAgreements, TIAS 6839 (Washington : U.S. Dept. 

of State, 1 970). The U. S. Senate ratified theNPT in March 1 969. The Treaty became effective 

on 5 March 1970. 

3. U.S. President Bill Clin ton, "Address to the United Nations (27 September 

1 993)," New York Times, 28 September 1 993, p. A 1 6. 

4. Douglas Jeh1, "Clinton Pledges to Reduce U. S. Nuclear Stockpiles by 200 Tons," 

New York Times, 2 March 1 995, p. A6. 

5. Paul Keifer (Colonel, USAF), "Changing the Currency ofIn ternational Security: 

Counter-Proliferation of Nuclear Weapons (or The New Bipolarism)," in Implications of 

Weapons of Mass Destruction (WMD) on USAF Operations: Working Group Meeting #4 

(Washington : U.S. Air Force, 11 April 1993), p. l. 

6. Article II o f th e N PT compels a non-nuclear weapon S tate Party to forego the 

development or acquisition of "nuclear explosive devices." 

7. For example, in the Spring of 1993, the U.S. Air Force conducted a study 

regarding the deploymen t of a counter-proliferation program. Keifer, p. I. Additionally, in 

May 1994, the Office of the Secretary of Defense issued a report on its counter-proliferation 

initiative. U.S. Dept. of Defense, Report on Nonproliferation and Counterproliferation Activities 

and Programs, Office of the Deputy Secretary of Defense (Wash ington : 1 994). 

8. For a recounting of the formation of the counter-proliferation initiative, see 

David B. Ottaway and S teve Coli, "Rethinking the Bomb: U.S. Focuses on Threat of ' Loose 

Nukes,'" Washington Post, 10 April 1 995, p. AI. 

9. NPT, Art. II. 

1 0. NPT, Art. I. 

1 1. NPT, Art. III. 
The Newport Papers 

1 2. Chris Hedges, "A Vast Smuggling Network Gets Advanced Arms to Iran, " New 

York Times, 15 March 1 995, pp. AI, A8. 

1 3. Director Of Nuclear Energy Organization S urns Up Progtess to Date," BBC 

Summary of World Broadcasts, 12 September 1996. 

14. U.S. Dept. of State, "Extension of the Nuclear Non-Proliferation Treaty," 

LEXlS Database, Cumws File, IS May 95 . 

IS. "COCOM: Controlling a Deadly Trade," Economist, 16 March 1 994, pp. 52, 56. 

16. Frank Gafney, " Selling the High Technology Rope," Washington Times, 12 

September 1 995, p. A12. 

17. Ibid. 

18. U.S. Laws, Statutes, etc., "Export A dminis tration Act of 1 979, as amended," U.S. 

Code, Title 5�War and National Defense, 1 988 ed. (Washington: U.S. Gov't. Print. Off., 

1988), sec. 240 1 et seq. 

1 9. U.S. Laws, S tatutes, etc., "Nuclear Non-Proliferation Act of 1 978," U.S. Code, 

Tirle 42-ThePublicHealth and Welfare, 1 988 ed. (Washington : U.S. Gov't. Print. Off., 1988), 

sec. 2 1 60. 

p. 3. 

20. "Proliferation-Cold War II," Economist, [1 December 1 993, p. 28. 

2 1 . Ibid. 

22. Ibid. 

23. Ibid. 

24. J. Brierly, The Law of Nations, 6th ed. (Oxford, England: Clarendon Press, 1 96 3), 

25. As part of the Defense Counter-Proliferation Initiative, the Un ited S tates is 

attempting to cooperate with the other mem bers of the North Atlantic Treaty Organization 

(Nato). Ottaway and ColI, p. A 1 6. 

26. Complicating this analysis is the divide that curren tly exists between North and 

South . Nations of the Third World might he reluctant to accept counter-proliferation in 

any form. For a discussion of the implications of this split in the context of intervention 

generally, see Virginia Gamha, "Justified Intervention? A View from the South," Laura W. 

Reed and Carl Kaysen, eds., Emerging Norms of Justified Intervention: A Collection of Essays 

from a Project of the American Academy of Arts and Sciences (Cambridge, Mass. : Committee 

on Internation al Security Studies, American Academy of Arts and Sciences, 1993), p. 1 1 5. 

27 . Lori Fisler Damrosch, "Changing Conceptions ofIn terven tion in In ternational 

Law," Laura W. Reed and Carl Kaysen, eds., p. 91. 

28. Charter of the United Nations, 26 June 1 945,59 S tat. 1 03 1, T.S. No. 993, 3 Bevans 

1 1 53. 

29. U.N. Charler An. 2, para. 4. 

30. The United Kingdom, France, Austria-Hungary, Russia and Germany. 

31. For a comprehensive analysis of the h istory ofintervention, see Marc Trach tenberg, "Interven tion in His torical Perspective," Laura W. Reed and Carl Kaysen, eds., pp. 

15-36. See also Jos t Delbruck, "A More Effective International Law or a New 'World 

Law' ?-Some Aspects of the Development oflnternational Law in a Changing In ternational System," Universizy of Indiana Law Journal, 1 993, v. 68, p. 72 1 . 

32. For a review of the events leading up to the initiation of hostilities in World War 

I, see James Joll, The Origins of the First World War (White Plains, N.Y. : Longman Pub., 

1 992). 

68 
Counter-Proliferation Strategy 

33. Delbruck, p. 721. 

34. The status of Pakis tan offers a recent example where a concern for sovereign ty 

was in tension with U.S. nonproliferation interests. Pakistan, which, according to intelligence reports, was developing a nuclear capability, was s upplied with weapons from the 

United S tates in thewake of the Soviet invasion of Afghanistan in l ate 1 979. Concerns about 

the security of Pakistan (along with a desire to arm rebel forces in Afghan istan) prompted 

the Reagan and Bush administrations to b alance nonproliferation concerns with regional 

security concerns. 

35. Delbruck, p. 724. 

36. U.N. Charter, Art. 2, para. 1. 

37. U.N. Charter, Art. 2, para. 7. 

38. Trachtenberg, p. 30. 

39. The system during the Cold War was imperfect, as both the United States an d 

the Soviet Union intervened in various disputes throughout the world. However, the norm 

itself, that intervention is illegitimate, survived the actions of the superpowers and their 

respective proxies. It j ust so happened the norm often fell victim to the use of the veto by 

both powers in the U.N. Security Council. 

40. U. S. Congress, Senate, Committee on Foreign Relations, The Israeli Air Smke, 

Hearings (Washington: U.S. Gov't. Print. Off., 198 1 ), pp. 1, 4 (statement of Walter J. 

Stoessel, Jr., Acting United States Secretary of State) (hereinafter Hearings). 

41. United Nations, Security Council, Official Records: Resolutions and Decisions of 

the Security Council, 1981, Resolution 487 (198 1), S/Res/487 (New York: 1 981). 

42. Gamba, pp. 1 1 7-8. 

43. The United States and the Soviet Union presented various drafts of the NPf 

throughout its original negotiating period in the 1 960s to get as m any states as possible to 

subscribe to its goals. William Epstein and Paul C. Szasz, "Extension of the Nuclear 

Non-Proliferation Treaty: A Means of Strengthening the Treaty," Virginia Journal of 

International Law, 1 993, v. 33, p. 74 1. 

44. The wide acceptance of the NPf itself provides evidence for the premise that 

most, but not all, nonnuclear states accept a norm against the development of nuclear 

weapons. 

45. Virginia Gamba notes that m any of th e security concerns of the international 

comm unity are largely security concerns of the great economic powers. These states set the 

international agenda an d define the rules. This leads to the fear among weaker states that 

intervention will be employed as a tool to "crush the South's own definitions of security 

threats." Gamba, p. 118 . The proliferation of n uclear weapons falls within th is rubric, as 

leaders of potential proliferants see the possible value of the possession of nuclear weapons 

in regional disputes with their neighbors, whereas present n uclear powers see the threat of 

proliferation quite differently, fearing the loss of order in the region where the proliferation 

resides. 

46. U.N. Charter Art. 2, para. 3. This article states, "All Members shall settle their 

international disputes by peaceful means in such a m anner that international peace and 

security, and justice, are not endangered." 

47. U.N. Charter Art. 3 3, para. 1. Article 33(1) states, "The parties to any dispute, 

the continuance of which is likely to endanger the main tenance of international peace and 

security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, 

69 
The NevJport Papers 

90. United Nations, Security Council, Official Records: Resolutions and Decisions of 

the Security Council, 1981, Resolution 487 (l981). S/IUF/37 (New York: 1 981). 

91. Ibid. 

92. Anthony D' Amato, "Editorial Commenl: Israel's Air S trike upon the Iraqi 

Nuclear Reactor," American Journal of International Law, v. 77, 1 983, pp. 587-8. 

93. Since no nuclear material was at Tamuz I, Iraq had not violated lAEA safeguards. 

Construction programs are beyond the powers of the IAEA, which simply safeguards nuclear 

material. 

94. Burrus M. Carnahan, "Protecting Nuclear Facilities from Military Attack : 

Prospects after the Gulf War," American Journal of International Law, v. 86, 1 992, p. 5 25. 

95. See Hearings, p. 1. 

96. For an analysis of chis question, see Mallison and Mallison, p. 417. 

97. Subsequent events demonstra ted that Iraqi efforts to acquire a nuclear weapon 

were well underway by 1 981. 

98. Mallison and Mallison, p. 429. 

99. For a presentation of the Israeli decision and subsequen t justification, see Dan 

McKinnon, Bullseye Iraq [previously p ublished as Bullseye Reactor and Bullseye One] (New 

York : Berkley Books, 1988), chapters 13 and 1 8. 

1 00. This ass umption proved unwarranted. However, in 1 98 1, the in ternational 

comm unity assumed that the Iraqi nuclear program, while suspicious, was dedicated to 

peaceful purposes. The fact that che program was the subject of recurrent IAEA inspections 

augmen ted this belief. 

10 1. The discoveries made after the 1 99 1 Persian Gulf War established that these 

conclusions were correct. Newcomb, pp. 625-7. 

102. Although not actively engaged in hostilities, Iraq and Israel were (and still are) 

in a state of war in 1 981. Iraq never signed an armistice with the Israelis following their 

1967 war. Hearings, p. 76. Moreover, Iraq, along with the Pales tine Liberation Organization 

and the other Arab states with the exception of Egypt, h ad announced their commitment 

to the destruction ofIsrael. 

103. Newcomb, p. 626. 

104. Hearings, p. 76. 

105. See Polebaum, pp. 223-6, for a detailed discussion of Israeli diplomatic efforts 

to impede the development of the Tamuz I reactor. 

1 06. Ibid. 

107. McKinnon, p. 1 1 5. 

108. For a contrary view, see Mallison an d Mallison, p. 432. " A present armed attack 

in response to an assumed fu ture but not imminen t armed attack, even if the latter is deemed 

to be n uclear, cannot meet the requirement of proportionality in even its most liberal 

formulation. This, however, is exactly what Israel claimed to be legally justified." 

109. Polebaum, p. 226. 

1 10. "The reactor was damaged severely and three Iraqi civilians and one French 

technician were killed." Mallison and Mallison, p. 418, citing interv iew with Iraqi Pres iden t 

Saddam Hussein, Issues and Answers, 28 June 198 1 (American Broadcasting Company 

television broadcas t). 

Ill. Erickson, p. 1 42. Again, one must consider that the Israeli action might be 

atypical due to Israel's status in the international community in the early 1 980s. 

72 
Counter-Proliferation Strategy 

1 1 2. Richard Cheney, "Remarks by Secretary of Defense Richard Cheney to the 

Jewish Institute for National Security Affairs Conference Dinner," LEXlS, News library, 

Curnws file, 28 October 1991. 

1 13. For an overview of these statistics, see Normand and Jochnick, pp. 390-1. 

1 1 4. While Russia and China still possess forces capable of targeting U.S. territory, 

tensions among these states have generally been reduced. For example, cooperation among 

the nuclear scientists of the three s ta tes h as begun. For an overview of thil; relationship, see 

S teve Coil and D avid B. Ottaway, "Rethinking the Bomb: Secret Visits Helped Define 3 

Powers' Ties," Washington Post, II April 1 995, p. AI. 

1 1 5. This analysis ignores the possibility of an accidental nuclear attack from one of 

the former republics of the Soviet Union or China. While this possibility certainly should 

concern U.S. leaders, the potential for an accidental attack is not the danger that leads to a 

preemptive strike. 

1 1 6. Lewis A. Dunn, "Rethinking the Nuclear Equation : The United States and the 

New Nuclear Powers," Washington Quarterly, v. 17, Winter 1 994, p. 1 7. 

117. Article X( l) states: "1. Each Party shall in exercising its national sovereignty 

have the right to withdraw from the Treaty if it decides that extraordinary events, related 

to the subject matter of this Trea ty, have jeopardized the supreme interests of its country. 

It shall give notice of such withdrawal to all other Parties to the Treaty and to the United 

Nations Security Council three months in advance. Such notice shall include a statement 

of the extraordinary events it regards as having j eopardized its supreme interests." 

1 18. Personal confidential discussion with Department of Defense official, Washing· 

(on, D.C., 30 March 1 995 . 

1 19. Normand and Jochnick, p. 390, n. 8, citing DOD Interim Report, p. 2:7. 

1 20. In the mon ths of deliberations preceding the decision to order the air s trike, 

Israeli leaders an ticipated that the in ternational community would censure the attack. 

121. Cheney statement. 

1 22. McKinnon, p. 5. 

1 23. This discussion concentrates on peacetime reprisals, which forcefully punish an 

illegal act by a s tate before the commencement of military hos tilities. W artime reprisals, 

which occur after the outbreak of hostilities, are not the focus of this discussion. 

1 24. Derek Bowett, "Reprisals Involving Recourse to Armed Force," A merican 

Journal of International Law, v. 66, 1972, p. 3. 

1 25. Erickson, p. 121. 

1 26. See Khan, pp. 440-1. 

127. Erickson, p. 1 77. 

1 28. Ibid., p. 176. 

1 29. Article 52(1) states: "Nothing in the present Charter precludes the exis tence of 

regional arrangements or agencies for dealing with such matters relating to the maintenance 

ofinternational peace and security as are appropriate for regional action, provided that such 

arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations." 

1 30. See Arend, p. 6. 

131. Some commen tators h ave claimed th at the traditional nonprolifera tion route is 

no longer worth traveling and that if more states actually possessed a nuclear capability, 

stability would be enhanced. For a discussion of th is proposition in the context of the former 

73 
The Newport Papers 

Soviet Republic of Ukraine, see John J. Mearsheimer, "The Case for a Ukrainian Nuclear 

Deterrent," Foreign Affairs, v. 72, Summer 1 993, p. SO. 

132. For example, it is possible to argue that the U.S. invasion of Panama in 1989 to 

oust Man uel N oriega should be considered an act of reprisal because i tmet all three elements 

of the reprisal test. The Noriega regime was violating international law in a n umber of ways. 

It was suppressing human rights. It also was assisting the suppliers of illegal drugs to ship 

their product to the United S tates. Finally, the Panamanian military mortally woun ded a 

member of the U.S. armed forces, sparking the U.S. invasion. This action was taken to 

protect U.S. interests and to compel Panama to abide by international law. Deciding 

whether the U.S. action itself violated internation al law is b eyond the scope of this s tudy. 

133. Arend, p. IS. 

1 34. By "war," I mean either a congressionally declared war or a conflict similar to 

that waged by the U.N.-sanctioned coalition against Iraq in early 1991. A coun ter-proliferation action described in the previous sections of this paper could spark this type of 

conflict Thus, the laws of war may become relevant in those scenarios as well. For a 

description of various deftnitions of the term "war," see Ingrid Detter De Lupis, The Law 

of War (New York : Cambridge University Press, 1 987), pp. 1 -18. 

135. Presiden t Bil Clin ton reportedly reviewed the Korean war plan, entitled USFK 

50-27, with Secretary of Defense Les Aspin and Chairm an of the Joint Chiefs of S taff 

General John M. Shalikashvili in a White House meeting on 10 December 1 993. Barton 

Gellman, "Trepidation at Root of U.S. Korea Policy: Conventional War Seen Catastrophic 

for South," Washington Post, 12 December 1 993, p. AI. 

136. John Lancaster, "Aspin Vows Military Efforts to Counter Arms Proliferation," 

Washington Post, 8 December 1993, p. A7. See also Report on Nonproliferation (note 7) . 

137. Convention (IV) Respecting the Laws and Cus toms of War on Land, signed at 

the Hague, 18 October 1907; I Bevans 63 1, 36 U.S. Statutes at Large 2227. 

138. There are four conventions which together comprise the Geneva Conventions. 

These are: Geneva Convention for the Protection of the Wounded and Sick in Armed Forces 

in the Field, opened for signature 1 2 August 1 949; 6 U.S.T. 3 1 1 4, T.I.A.S. 3 362, 75 U.N.T. S. 

31; the Geneva Convention for the Amelioration of the Condition of the Wounded, S ick, 

and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1 949; 

6 U.S.T. 3217, T.I.A.S. 3 363, 75 U.N.T.S. 85; the Geneva Convention Relative to the 

Treatment of Prisoners of War, opened for signature l 2 August 1949; 6 U.S.T. 33 16, T.I.A.S. 

3364, 75 U.N.T.S. 135; and the Geneva Conven tion Relative to the Protection of Civilian 

Persons in Time of War, opened for signature 12 Augus t 1949; 6 U.S.T. 3516, T.I.A. S. 3365, 

75 U.N.T.S. 287. 

139. Protocol Additional to the Geneva Conven tions of 12 August 1949, and Relating 

to the Protection of Victims of International Armed Conflicts (Protocol I), adopted by the 

Conference 8 June 1 977, U.N. Doc. A.32/l 44; reprinted in 1 6 I.L.M. 1391 (1977) (hereinafter 

Protocol I). A second Protocol (Protocol II) was also signed in 1977. It deal t with the 

treatment of civilians during civil strife and is not of concern for this discussion on 

coun ter-prolifera tion. 

1 40. For an an alysis of the need to follow the laws of war when employing force, see 

Oscar Schachter, "In Defense of Internation al Rules of the Use of Force," University of 

Chicago Law Review, v. 53, 1986, p. 1 1 3. 

74 
Counter-Proliferation Strategy 

141. Richard I. Miller, The Law of War (Lexington, Mass. : Lexington Books, 1 975), 

p. 90. 

142. 1.c. Green, Essays on the Modern Law of War (New York: Transnational 

Publishing Co., 1 985), p. 143. 

143. Carnahan, p. 529. 

144. Anthony Leibler, "Deliberate Wartime Environmental D amage: New Challenges for International Law," California Western International LawJournal, v. 23, 1 992- 1993, 

p. 99. 

145. Green, p. 1 43. 

1 46. Ibid. 

1 47. Hague Convention (IV). 

148. Miller, p. 90. 

1 49. Rainer Lagoni, "Comments : Methods or Means of Warfare, Belligerenr Reprisals, and the Principle of Proportionality," Dekker and Post, eds., pp. 1 1 7-8. 

150. Protocol l. 

15 1. Ibid. 

152. For an argument that the United S tates should ratify Protocol I, see Theodor 

Meron, "Editorial Comment: The Time Has Come for the United S tates to Ra tify Geneva 

Protocol I," AmericanJournal of International Law, v. 88, 1 994, p. 678. 

153. Ronald Reagan, 29 January 1 987 message to the Senate transmitting Protocol II 

Additional to the Geneva Conventions of 12 August 1 949 for advice and consent, including 

an explanation as to why Protocol I is not being submitted; reprinted in American Journal 

of International Law, v. 81, 1 987, p. 9 1 1 . 

1 54. George H. Aldrich, "Prospects for United States R atification of Addition al 

Protocol I to the 1 949 Geneva Conven tions," American Journal of International Law, v. 85, 

1 99 1, p. 1. 

155. Vienna Convention on the Law of Treaties, May 23, 1 969, U.N. Doc. NCONF. 

39/27. 

1 56. The United S tates has nor ratified the Vienna Convention on the Law of Treaties. 

However, the Department of State recognizes the Convention as an authoritative guide to 

the structure of in ternational law. 

1 57. U. S. Dept. of Defense, Conduct of the Persian Gulf Conflict, p. 0- 1. This report 

cites Protocol I when discussing Coalition targeting, collateral damage, and civilian casualties. 

158. Ten members of Nato h ave ratified the Protocol. They are Belgium, Denmark, 

the Federal RepUblic of Germany, Greece, Iceland, Italy, Luxembourg, the Netherlands, 

Norway and Spain. Edward K. KWakwa, The International Law of Armed Conflict: Personal 

and Material Fields of Application (Hingham, Mass. : Kluwer Academic Pub., 1 992), p. 64. 

1 59. Secretary of Defense Les Aspin announced the establishm ent of the counterproliferation initiative at an October 1 993 meeting of Nato ministers in Germany. Peter 

Mackler, "U.S. Counter-proliferation S cheme Runs into Problems," Agence Fran ce Presse, 

7 January 1 994. 

160. J. Ashley Roach, "Ruses and Perfidy: Deception during Armed Conflict," 

University of Toledo Law Review, v. 23, 1 992, p. 396. The South Koreans have attached a 

reservation to the Protocol, but it does not specifically restrict the coun try's commitments 

to Article 56 regarding the release of dangerous forces . Telephone interview with Ho Jin 

75 
The Newport Papers 

Chang, Political Officer, Republic of Korea Emb assy to the United States, Washington : 5 

April 1 994. 

161. Carnahan, p. 533. 

162. Bernard K. Schafer (Major, USAF), "The Relationship between the International Laws of Armed Conflict and Environmental Protection : The Need to Reevaluate 

What Types of Conduc t are Permissible during Hostilities," California Western International 

Law Joumal, v. 1 9, 1 988-1 989, p. 3 1 0, n. 111. 

163. Carnahan, p. 533. 

1 64. Ibid. 

1 65. Leibler, p. 1 08. 

166. W. Hays Parks, "Air War and the Law of War," Air Force Law Review, v. 32, 

1990, p. 210. 

167. Carnahan, p. 533. 

168. Leibler, p. 1 09. 

169. Ibid., p. 1 1 5. 

170. Ibid., p. 1 09. 

17 1. Ibid., p. 99. 

172. Protocol 1. The United S tates posits that nations need only to take all "reasonable" precaution rather than all "feasible" precautions. 

173. Ibid. 

1 74. Richard Falk, "The Environmental Law of War : An Introduction," Glen 

Plant, ed., Environmental Protection and the Law of War: A 'Fifth Geneva ' Convention on 

the Protection of the Environment in Time of Anned Conflict (New York : John Wiley & 

Sons, 1 992), p. 88. 

175. Sweden, "Working Paper, Proposals for Parts of a Treaty Prohibiting Radiological Weapons and the Release or Dissemination of Radioactive Material for Hostile Purposes, 

Conference on Disarmament Doc. CD/RW/WP.52," 1 984, p. 1. 

176. Carnahan, p. 533. 

177. Ibid., p. 534. 

178. Ibid., p. 536. 

179. Ibid. 

1 80. "Final Declaration, Ann. I, Conf. Doc. NPT/CONF. I1I/64/1 ( 1 985)," V.N. 

Depanment of Disannament Affairs, Disannament Fact Sheet No. 43, The Third Review Conference of the Panies to the Treaty on the Non-Proliferation of Nuclear Weapons (New York : United 

Nations, 1985), pp. 1 4, 1 9. 

1 81. Carnahan, p. 536. 

1 82. Parks, p. 210. 

183. Ibid. 

1 84. Ibid. 

185. Kalshoven, p. 1 06. 

1 86. Ibid., p. 98. 

1 87. Ib id. 

188. Ibid., p. 1 06. 

189. Ibid. 

190. Carnahan, p. 524. 

1 91. Ibid., pp. 526-7. 

76 
Counter-Proliferation Strategy 

1 92. United Nations, Security Council, OfficiIJl Records: Resolutions and Decisions of 

the Security Council, 1990, Resolution 678 ( 1990), (New York : U.N., 1 990). 

1 93. Carnahan, p. 5 27. 

194. For other arguments that the United Nations, in fact, did not give such 

authorization, see N. Dombey, "US Attacks on Reactors Sets Dangerous Precedent," 

Financial Times, 25 January 1991, p. 17. 

195. Carnahan, p. 527. 

196. Khan, p. 435. 

197. "Table of Ratifications and Accessions to the Geneva Conventions of 1 949, the 

Geneva Protocols 1 977 and the Weapons Conven tion 198 1 as of l Oth O ctober 1988," 

Michael A. Meyer, ed., Armed Conflict and the New Law: Aspects of the 1977 Geneva Protocols 

and the 1 981 Weapons Corrvention (London : The British Institute of Interna tional and 

Comparative Law, 1 989), pp. 281 -9. 

198. Green, pp. 1 42-3. 

199. Carn ahan , p. 524. 

200. In retrospect it turns out that Iraq possessed little weapons-grade material at the 

time of the Gulf War. However, coalition war planners did not possess specific knowledge 

of the amoun t of rna terial in Iraq's possession. Consequently, the planners had to make their 

decisions relating to proportionality with incomplete information. 

20 1. Green, p. 143. 

202. Ann MacLachlan and Mark Hibbs, "U.S. Challenged at IAEA Board on Iraqi 

Attacks," Nucleonics Week, 28 February 1991, p. 5. 

203. Carnahan, p. 529. 

204. The U.S. dependence on nuclear deterrence and the U.S. reluctance to renounce 

any use of nuclear weapons provides an apt analogy to this analysis. The United Nations 

General Assembly has passed a resolution prohibiting the use of nuclear weapons and h as 

called for nuclear disarmament. Despite this pronouncement, the United States is not about 

to disarm simply because the use of nuclear weapons might violate international law. Such 

disarmament would be adverse to U.S. national interests. Albeit on a smaller scale, 

sacrificing counter-proliferation also would be adverse to the n ational in terests. 

77 
About the Author 

Frank G. Goldman is an attorney with the Enforcement and Compliance 

Division of the U .S. Office of the Comptroller of the Currency. Before 

taking his current posi tion, Mr. Goldman received his juris doctorate cum 

laude from Cornell Law School in I thaca, New York, in 1 994. From 1 988 

to 1 991, Mr. Goldman was a member of the U.S. Air Force, stationed in 

Cheyenne, Wyoming. During his time in the Air Force, Mr. Goldman was 

a Minuteman III Missile Launch Officer. He received a master's degree in 

international studies from the University of Wyoming in Laramie, Wyoming, in 1 99 1 . His master's thesis addressed nuclear nonproliferation 

topics for the 1 990s. From 1 987 to 1 988, Mr. Goldman was a John M. Olin 

Fellow at the U.S. Naval War College in Newport, Rhode Island. He 

received his bachelor of arts degree in government cum laude from Cornell 

University in I thaca, New York, in 1 987. Mr. Goldman currently resides 

in Bethesda, Maryland. 
THE NEWPORT P APER§ 

Index 

1 991-1 996 

1. "Are We Beasts?" Churchill and the Moral Question of World War II 

'�rea Bombing," by Christopher C. Harmon (December 199 1 ). 

2. Toward a Pax Universalis: A Historical Critique of the National Military 

Strategy, by Lieutenant Colonel Gary W. Anderson, U.S. Marine Corps 

(April 1992). 

3. The "New" Law of the Sea and the LavJ of Armed Conflict at Sea, by 

Horace B. Robertson, Jr. (October 199 2). 

4. Global War Game: The First Five Years, by Bud Hay and Bob Gile 

aune 1993). 

5. Beyond Mahan: A Proposal fqr a U.S. Naval Strategy in the Twenty-First 

Century, by Colonel Gary W. Anderson, U.S. Marine Corps (August 1 993). 

f6. The Burden of Trafalgar: Decisive Battle and Naval Strategic Expectations on the Eve of the First Wqrld War, by Jan S. Breemer (October 1 993). 

7. Mission in the East: The Building of an Army in a Democracy in the New 

German States, by Colonel M ark E. Victorson, U.S. Army aune 1994). 

8. Physics and Metaphysics 0/ Deterence: The British Approach, by Myron 

A. Greenberg (December 1 994). 

9A Doctrine Reader: The Navies a/the United States, Great Britain, France, 

Italy, and Spain, by James J. Tritten and Vice Admiral Luigi Donolo, Italian 

Navy (Retired) (December 1 995). 

1 0. Chaos Theory: The Essentials /qr Military Applications, by Major Glenn 

E. James, U.S. Air Force (October 1 996).