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What if the worst-case scenario happened in Pakistan?

Over at Opinio Juris, Prof. Julian Ku links an article in the UK?s Herald that noted that US Special Forces were on standby to enter Pakistan and secure the nuclear warheads should civil unrest threaten the Musharraf regime. Ku calls this plan a ?sensible precaution? but opines that it would be ?almost certainly illegal under international law.?

My final exam in Public International Law a few weeks ago posited exactly this scenario: a takeover in Pakistan by fundamentalist elements including Al Qaeda and Taliban. My task, as Deputy Legal Advisor at the Department of State, was to write a memo outlining the legal basis for entering to secure the weapons as well as a possible full-blown invasion if necessary.

The rationale I gave was that such an action was justified under our right to self-defense from an imminent armed attack, as established under customary international law (e.g., the Caroline Doctrine) and under Article 51 of the UN Charter. Under the Caroline Doctrine as articulated by Secretary Webster in 1842, US policy has been that anticipatory self defense may take place in cases where the necessity of defense is instant, overwhelming, leaves no choice of means or time for deliberation. I think there is a strong argument that this scenario presents such a case.

There are two characteristics of this hypothetical scenario that lead to its legality that are not present in other cases (such as, say, Iran, North Korea or Syria). One is the confirmed presence of nuclear weapons and advanced rocketry. The second is that we are currently in a state of unprovoked belligerency with Al Qaeda and the Taliban, and we can reasonably expect that any fundamentalist takeover in Pakistan would involve significant elements of these groups. I think there is a reasonable argument that if this takeover occurred, there would be a high likelihood of an imminent nuclear attack (if the US didn?t immediately secure the weapons, I doubt Al Qaeda would wait around until there was a Security Council resolution or we established our resolve... they would launch as soon as it was technically feasible).

This is different from the Bush preemption doctrine, which is aimed at preventing states which may one day both secure WMD?s and become belligerent with us. Like many, I find that approach to be of dubious legality. However, here we would be dealing with a regime that has already attacked, and with certain nuclear capabilities.

Of course, international law is by no means an exact science. Determining whether something is legal or not is really just a process of making arguments and letting political processes and public opinion be the judge. However, my feeling is that when reasonable people such as Prof. Ku see an armed action as a ?sensible precaution? there is a good argument to be made that it is also a legal precaution.

Full post as published by Traditional Notions on December 31, 2007 (boomark / email).