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Professor Barry Kellman
DePaul University College of Law
JURIST Guest Columnist

Whether President Bush misled or was misled about Hussein痴 weapons of mass destruction, his justification for preemptive attack has provoked critical questions about preventing proliferation and catastrophic terrorism. Consider biological weapons the most dangerous capability that Hussein was alleged to actually possess. Even post-Hussein, weapons that inflict disease continue to threaten us all, demanding analysis of policies to meet that threat.

First, how are we to know about covert weapons programs? Intelligence warnings raise concerns that perhaps a dozen nations from the Middle East to East Asia have bio-weapons programs. It turns out, of course, that the Administration痴 warnings about Iraq were, in David Kay痴 straightforward language, wrong. The U.N. inspectors failed to find weapons because they didn稚 exist. If tomorrow痴 crises involve bio-weapons, how we will know what痴 true before sending our troops? Will we once again regret that there is no sophisticated global structure that can track and identify dangerous germs and critical equipment and that can systematically investigate suspicious activities?

The Bush Administration has resolutely opposed formation of an international body that could supervise movement of deadly germs or bio-science equipment, comparable to the bodies that oversee nuclear materials and chemicals. Indeed, the Administration has not offered any proposals to enable the international community to know about programs for weaponizing disease. Establishing such a structure will be complex and will take time, but again the regrettable sound is the Administration痴 silence: despite the need to treat the proliferation of biological weapons as a shared global threat with an appropriate body to assess those threats, there are no American-supported initiatives to even consider what such a structure should be.

Second is the question of strategic priorities. Addressing threats of bio-weapons should be part of a larger campaign that de-emphasizes cataclysmic deterrence. Thus, strategic planning should move toward elimination of all weapons of mass destruction nuclear as well as bio-weapons. Indeed, the five declared nuclear weapons States (including the United States) are bound by an explicit treaty obligation to pursue negotiations on a complete disarmament treaty under strict and effective international control. Not only has that obligation been ignored, but treaties have been abrogated and new weapons systems advanced.

No, stable arsenals in the hands of world leaders should not be strictly equated with bio-weapons in the hands of maniacs apt to use them. Yet in a post-Hussein, post-9/11 world, perpetuation of nuclear intimidation provides an imprimatur to destructive terror that our adversaries rationalize to undermine our security. If we are to seriously analyze how to make the world a safer place, diminishing the multitude of nuclear weapons is an appropriate place to begin.

Instead of devoting over $12 billion in FY05 to new nuclear weapons and ballistic missile defense, we might do well to consider priorities that diminish the legitimacy of threatened devastation. Again, bio-capabilities illuminate crucial choices. Even as plans are formulated for preemptive attack against those who threaten to inflict disease, much of the world is engulfed in terrors of pandemics. If resources are devoted to gigantic weapons systems, there is less available for public health. In fact, the President has cut back promised spending to combat disease in the developing world.

Ultimately, security must be built on a normative foundation. To ignore correlations between living conditions and terrorism is to promote a widely-held perception of an amoral superpower. Instead, countering bio-weapons proliferation to tyrants and terrorists should be a facet of a broad international commitment to satisfy shared needs for health security. Simply stated, prevention of disease must be an international security priority.

Third is a question of accountability and about who should make decisions. The Hussein trial could be an historical milestone an unequivocal assertion that Hussein had long forfeited any legitimate right to govern. We can rightfully advocate that tyranny is not a prerogative of sovereignty and that mass murder is a crime even if the victims are one痴 own citizens. Yet, Hussein痴 defense could speak volumes about who was responsible for propping up this monster, for facilitating his access to both money and his alleged biological and chemical weapons production capabilities.

Among the lengthy list of those who should be held accountable are U.S. national security leaders throughout the eighties. Without facing any justice for not stopping weapons precursors from going to an ally who became an enemy, those same officials now claim credit for taking Hussein down. As a new global order emerges, it is appropriate to ask if those officials who abided a tyrant痴 rise should decide the timing and conditions of that tyrant痴 fall. More currently, as we look to emerging bio-threats, are we likely to be more secure if those same officials continue to insist on unilateral initiatives?

The last question is what implications should be drawn from the Administration痴 emphasis that the grounds for war were Hussein痴 repeated disobedience of U.N. directives? It is ironic how the need to strengthen the global legal order envelops even leaders who devoutly proclaim the virtues of unfettered national sovereignty. Inexorably, global demands for security push toward enhancing knowledge about proliferation behavior, toward establishing an authoritative trans-national supervisory body, toward negotiated disarmament, toward accountability, and toward a normative foundation for security policy. These are, of course, components of far more robust international law. As we enter a transformed strategic environment, the key to pursuit of peace and security is how well our leaders intensify law痴 central and pervasive role.

Barry Kellman is a Professor of Law at the DePaul University College of Law and is the Director of the Consortium on Law And Strategic Security.

April 12, 2004


JURIST Guest Columnist Barry Kellman teaches international law at DePaul University College of Law and is the Director of the Consortium on Law And Strategic Security. Professor Kellman also directs the International Criminal Justice and Weapons Control Center of the DePaul University College of Law International Human Rights Law Institute. He is a legal authority on the Chemical Weapons Convention and has advised the Defense and Energy Departments on legal issues relating to weapons control. He has authored numerous publications on the laws of armed conflict, Middle East arms control, nuclear nonproliferation, biological weapons control, and weapons smuggling. His work has been translated in several languages, including Arabic.