Note to readers: Dr. Justin Anderson continues the conversation about nuclear weapons and the laws of war with this contribution. Rejoinders are, of course, welcome. Justin is a Research Fellow at National Defense University’s Center for the Study of WMD. The views expressed in this article are those of the author and do not reflect the official policy or position of the National Defense University, the Department of Defense, or the U.S. Government. His previous contribution appears here.
The article by Gro Nystuen and Kjolv Egeland in Arms Control Today titled, “A ‘Legal Gap’? Nuclear Weapons Under International Law” begins by citing language from the “Conclusion” of the Final Document of the 2010 NPT RevCon, noting it “referred for the first time in [Nuclear Nonproliferation Treaty (NPT)] history to the ‘catastrophic humanitarian consequences of any use of nuclear weapons.’” This phrase from the Final Document is also frequently cited by states and non-governmental organizations that support the Humanitarian Impact of Nuclear Weapons initiative (HINW).
This statement is factually incorrect. “Any use” is a term that encompasses every potential use. But not every potential use of a nuclear weapon would have “catastrophic humanitarian consequences.” For example, a nuclear weapon detonated high in the atmosphere or in outer space for demonstration purposes or to create an electromagnetic pulse might have consequences for hardware – but limited humanitarian consequences. Dan Joyner’s post in ACW also notes examples such as the isolated military targets cited in Schwebel’s dissenting opinion on the ICJ’s 1996 Legality of the Threat or Use of Nuclear Weapons case.
Nuclear employment against these types of targets, distant from population centers, could destroy them without significant humanitarian consequences. Moreover, the targeting and weaponeering factors discussed within Dunlap’s “Taming Shiva” article are directly relevant to limiting the humanitarian consequences of employment against other potential military targets, such as submarine bases or other facilities associated with a state’s nuclear forces. Another example is the potential use of a nuclear weapon to deflect or break up an asteroid to prevent it from colliding with Earth, which sounds like science fiction but is a scenario currently being studied by NASA and NNSA (in part due to the meteor whose explosion in 2013 above the Russian city of Chelyabinsk injured hundreds).
The above are not arguments regarding the merits of these possible forms of employment (although I would guess even the most committed supporters of HINW would back the use of a nuclear weapon to save humanity from the same fate as the dinosaurs). They are evidence against the use of sweeping generalizations such as “any use”, whether in negotiations, diplomatic texts, or legal or strategic analyses. Supporters of this language may object to the examples offered here, stating that what they really had in mind were attacks on civilian areas or nuclear exchange scenarios where ground bursts cause significant radioactive fallout. But word choices matter in diplomacy, particularly with regard to legally binding treaties; inaccurate phrasing such as “any use” can lead to differing interpretations, imperfect implementation, and indifferent or inadequate compliance.
Both articles also state that there is a “legal gap” with regard to the possession and potential employment of nuclear weapons by the NPT’s five nuclear weapon states. I agree with both authors that current law places significant restrictions on potential nuclear employment, restrictions that are important to acknowledge and address in the design, development, training, planning, and deployment of nuclear forces. I have two objections, however, to the term “legal gap.” First, I disagree that there is a gap in existing law: the legality of nuclear weapons possession is governed by the NPT, and the legality of potential employment of nuclear weapons is governed by the law of war.
A second, related objection is that the term is one of advocacy rather than analysis. A gap is something that needs to be filled in or bridged over. Use of the term strongly implies advocacy for a new treaty putting in place a blanket prohibition against nuclear weapon possession and use. This reflects a desire for new law rather than an assessment of current law. But the suffering and mayhem on contemporary battlefields will not be resolved by efforts to ban any particular type of weapon, regardless of its effects. Ruthless regimes and violent extremists have repeatedly proven their willingness to use any means, legal or illegal, to indiscriminately wage war. Rather than attempting to negotiate a ban that would likely prove difficult to verify and impossible to enforce, efforts to reduce the threat of nuclear war should focus on developing new nuclear arms control regimes and encouraging all states to better implement current law – to include law of war limitations on the employment of all weapons, whether conventional or nuclear.
Law of war limitations to potential nuclear employment, however, do not necessarily place a specific numerical limit on the U.S. nuclear arsenal. The U.S. nuclear force is not – as Dan suggests – 7,000 hammers looking for a bunch of nails. As of September 2014 the U.S. nuclear stockpile was 4,717 weapons; over the preceding two decades the United States dismantled 10,251 warheads. If the former number may seem large to some, consider the following: The number includes both “active” and “inactive” warheads, with the latter stored in depots and not fully configured for near-term employment. In addition, the platforms for delivering these weapons – none of which are on “hair-trigger alert” – are subject, like all military hardware, to operations and maintenance cycles. Like any fleet, not every delivery system (or the weapons associated with it) is always immediately available. Given all these factors, the number of active hammers – and readily available hammers – is well below 4,717.
In addition, per the terms of New START, by 2018 the United States will have reduced its number of deployed strategic weapons to a number at or below the treaty limit of 1,550. The actual number of U.S. deployed strategic weapons will slightly differ from the figure reported under the treaty, as New START’s “treaty math” counts each strategic bomber as one weapon regardless of loadout. It is also important to note that New START does not cover or count “non-strategic” nuclear weapons. Even after taking these factors into account, however, U.S. compliance with the treaty and its continuing dismantlement of old weapons has the deployed strategic force, and total U.S. nuclear stockpile, at their lowest levels in decades. Nevertheless, in line with its NPT Article VI commitments, the United States remains open to arms control negotiations with Russia to discuss further reductions to these numbers.
Advocates of reaching low numbers in the near future may contend that the U.S. stockpile is still too large and conclude, as Dan does, that the size of the arsenal must indicate an interest in retaining nuclear weapons for a wide range of scenarios and targets both nuclear and non-nuclear. This conclusion is incorrect. Wherever possible, the United States seeks non-nuclear alternatives to meet deterrence and defense requirements. The 2010 Nuclear Posture Review Report, for example, articulates an enduring interest in assessing how new and evolving non-nuclear capabilities can lead to a “reduced reliance” on nuclear forces. U.S. policy also narrows and limits the parameters of nuclear employment planning. The unclassified summary of current presidential guidance provided by the 2013 Report on the Nuclear Employment Strategy of the United States clearly states the Commander-in-Chief “will only consider the use of nuclear weapons in extreme circumstances,” while also underlining the critical role the law of war plays within this force’s military plans:
all plans must also be consistent with the fundamental principles of the Law of Armed Conflict. Accordingly, plans will, for example, apply the principles of distinction and proportionality and seek to minimize collateral damage to civilian populations and civilian objects. The United States will not intentionally target civilian populations or civilian objects.
The integration of the law of war with military planning is thus a key factor in narrowing the potential contingencies for U.S. nuclear employment. It also places limits on targeting, prohibiting any plans that intentionally target civilians — a point also emphasized within the DoD Law of War Manual, which states “nuclear weapons must be directed against military objectives”.
These restrictions, however, should not be interpreted as endorsing or requiring steep reductions. The 2013 Report notes that implementation of current guidance, to include ensuring all plans comply with the law of war, will not lead to the United States relying on “counter-value” or “minimum deterrence” strategies – approaches often associated with limited arsenals. In contrast, the guidance emphasizes the importance of maintaining “significant counterforce capabilities” to effectively deter a range of potential nuclear-armed adversaries from attempting to coerce or attack the United States or its allies. This reflects a strategic assessment of contemporary deterrence and defense requirements supported by a legal analysis underlining the importance of focusing plans on adversary military targets – which, with regard to highly-valued assets such as nuclear capabilities, are likely to have significant active and passive defenses. In short, including the law of war as an important part of planning processes for U.S. nuclear forces informs restrictions on contingencies and targets while also contributing to the case for fielding a robust nuclear deterrent force, given the current security environment.
Those who identify and wish to fill a “legal gap” on nuclear weapons possession and use are sincere in their desire to eliminate the scourge of nuclear war. I do not agree, however, with either their assessment of the law or their conclusion that a new treaty attempting to put in place a total, global ban could eliminate nuclear risk, nuclear competition, or the threat of nuclear coercion or conflict. Moreover, legal assessments, while critical to international diplomacy, provide only partial answers to the challenges posed by weapons of mass destruction. The history of nuclear arms control agreements demonstrates the importance of bringing together legal expertise, diplomatic acumen, military strategy, and technical proficiency to develop pacts that limit or reduce nuclear forces in a stabilizing, verifiable manner. Dan, Gro, and Kjolv provide analysis and commentary on the “legal gap” debate that I disagree with, but that arms control wonks should read alongside historical analyses of force developments, detailed assessments of foreign missile programs, and other evaluations and explorations of nuclear topics that can inform their development and negotiation of future nuclear treaties.