Forcible Arms Control: Preemptive Attacks on Nuclear Facilities

INTRODUCTION A former colleague of mine worked for most of his adult life as a career military officer. Toward the end of his career, he was assigned to work as an arms control inspector. In that capacity, he personally oversaw the destruction of hundreds, perhaps thousands, of weapons. He told me that, in just a couple of years as an arms control inspector, he had successfully eliminated many times more enemy weapons than he could possibly have destroyed in his entire career as a military officer. The lesson is clear: arms control is war by other means. But if arms control is war by other means, one could also say, to paraphrase Clausewitz, that war is arms control by other means. One key objective of arms control is to reduce or eliminate certain military capabilities of an adversary or a potential adversary. The same is true with respect to war. Hence, the question arises: in what circumstances is military force, or the threat of force, likely to be more effective than arms control as a mechanism for constraining the military capabilities of a potential adversary? The Nuclear Nonproliferation Treaty ("NPT") is the principal arms control mechanism for preventing the spread of nuclear weapons. A key weakness of the NPT is that it permits non-nuclear-weapon states parties to accumulate a stockpile of weapons-grade nuclear material, provided that the nuclear material is subject to International Atomic Energy Agency ("IAEA") safeguards.3 The vast majority of non-nuclear-weapon states parties to the NPT have not demonstrated any interest in producing a stockpile of weapons-grade nuclear material. However, there have been a few exceptions.4 Any state that has acquired a stockpile of weapons-grade nuclear material has thereby overcome the key technological hurdle on the path to production of nuclear weapons. Therefore, a non-nuclear-weapon state party to the NPT could acquire a legal stockpile of weapons-grade nuclear material under IAEA safeguards, announce its withdrawal from the NPT, and then proceed to manufacture nuclear weapons. Given the potential for a non-nuclear-weapon state party to withdraw from the NPT after acquiring a stockpile of weapons-grade nuclear material, and given the tremendous destructive potential of nuclear weapons, the production of weapons-grade nuclear material by additional states-even under IAEA safeguards-poses a significant threat to international peace and security. Under the UN Charter, the Security Council has "primary responsibility for the maintenance of international peace and security."5 Accordingly, members of the Security Council should consider options involving the threat and/or use of military force to prevent non-nuclear-weapon states from producing weapons-grade nuclear material. Specifically, the five permanent members of the Security Council should adopt a common declaratory policy in support of preemptive attacks against plutonium production reactors, reprocessing plants, and uranium enrichment facilities in states that have not previously produced a stockpile of weapons-grade nuclear material. These three types of nuclear facilities are the critical production facilities that a state needs in order to produce weapons-grade nuclear material. If the Security Council authorized military intervention before a state introduced nuclear material into such a facility, a well-executed surgical strike would deal a substantial setback to a proliferant state's nuclear weapons program, while avoiding significant casualties. Moreover, if the five permanent members of the Security Council adopted a common declaratory policy in support of preemptive attacks, it might deter potential proliferators from even attempting to construct plutonium production reactors, reprocessing plants, or uranium enrichment facilities. This Article is divided into four parts. Part I briefly describes the technology for production of weapons-grade nuclear material and the radiological effects of military attacks on nuclear production facilities. …