The international community’s prosecutions at international criminal tribunals represent a willingness to extend individual responsibility to national leaders, whose actions provide the legal and policy rationale for nuclear preemption. Under theories of joint liability—in essence, conspiracy—the tribunals have extended criminal liability to individuals who planned or assisted but did not personally commit grave crimes. Recognized mainly in common-law countries, conspiracy is an agreement between two or more people to commit a crime. In some jurisdictions, an element of conspiracy is the commission of an act that furthers the agreement, such as buying a weapon to support a robbery. The purchase of the weapon is an indication of the danger that a criminal agreement presents and is the moment when the crime of conspiracy has been committed. Conspiracy alone is a crime, even if the conspirators never attempt the robbery. In the international criminal tribunals, an agreement to commit a war crime was not traditionally a crime. However, in a 1999 departure from domestic law in continental Europe, the Appeals Chamber for the International Criminal Court for the former Yugoslavia reasoned that the illicit agreement to commit a war crime connects planning and action. It is thus the basis for joint liability, that is, liability for the crimes committed by a fellow plotter.

Individual liability is a basis for state responsibility. Iran’s support for terror is more extensive and provides a more compelling basis for its legal liability than the actions of any other nation. In their support for terrorism, the leaders of Iran have engaged in activities that merit indictment in an international criminal tribunal. Similar to such tribunals, a nuclear preemption doctrine is necessary to confront nuclear nations that commit, plan, or promote grave crimes. The international community could adopt a doctrine of nuclear preemption that is applicable when a nation is: (1) producing or importing highly enriched uranium (U-235) or plutonium for use in nuclear weapons; (2) planning or conspiring to commit aggression, crimes against humanity, genocide, or war crimes against a state; and (3) providing material support toward the commission of grave crimes.

Since becoming an Islamic republic in 1979, Iran has supported terror throughout the Middle East and in Israel, Argentina, France, and, more recently, Iraq and possibly Afghanistan. Iran has transferred weapons to terrorists that it has created or purchased from other countries. If Iran acquired nuclear weapons, Saudi Arabia, Egypt, Jordan, Turkey, and Syria would try to develop their own nuclear forces to counterbalance Iran’s nuclear hegemony. Israel would then be certain to increase its arsenal of 50 to 100 nuclear warheads in order to deter its nuclear Islamic neighbors.

The world community must confront the implications of allowing nations that commit and support grave crimes to possess nuclear weapons. As a legal rule or philosophical principle, the doctrine of self-defense cannot prevent a nuclear nation bent on terror from destroying a victim nation before the victim can respond defensively. The world community should consider adopting a principled doctrine of nuclear preemption to prevent what will otherwise be a virtually certain nuclear conflict.