John Burroughs

In the October 2 vice-presidential debate, moderator Gwen Ifill ventured into a crucial area rarely touched by regular media. She asked:

Governor, on another issue, interventionism, nuclear weapons. What should be the trigger, or should there be a trigger, when nuclear weapons use is ever put into play?

Sarah Palin responded:

Nuclear weaponry, of course, would be the be all, end all of just too many people in too many parts of our planet, so those dangerous regimes, again, cannot be allowed to acquire nuclear weapons, period.

Our nuclear weaponry here in the U.S. is used as a deterrent. And that’s a safe, stable way to use nuclear weaponry.

But for those countries — North Korea, also, under Kim Jong Il — we have got to make sure that we’re putting the economic sanctions on these countries and that we have friends and allies supporting us in this to make sure that leaders like Kim Jong Il and Ahmadinejad are not allowed to acquire, to proliferate, or to use those nuclear weapons. It is that important.

When it was his turn, Joseph Biden did not answer the question, instead referring to John McCain’s vote against ratification of the Comprehensive Nuclear-Test-Ban Treaty in 1999, and to Barack Obama’s work on “keeping nuclear weapons out of the hands of terrorists.”

But Palin really did not answer the question either. She claimed that U.S. reliance on nuclear forces is “safe” and “stable” deterrence. One major question that comes to mind is whether Palin believes the eight other countries in the world with nuclear weapons also practice safe and stable deterrence. Her answer is no with respect to North Korea, and Biden also talked about the danger posed by Pakistan’s arsenal. That leaves six other countries (China, Russia, India, France, United Kingdom, Israel). Palin also said that “dangerous regimes,” Iran being one, cannot be allowed to acquire nuclear weapons. But if deterrence works for the United States, why not for current nuclear have-nots?

More fundamental, though, and at the heart of the question posed by Ifill and not addressed by either Palin or Biden, is this: Deterrence is based on the will and capability to use nuclear weapons when deemed necessary. If you embrace deterrence, you embrace the possibility of use. Similarly, you can’t support the death penalty as a deterrent to horrendous crimes without supporting actual executions. Biden knows this. In a Wall Street Journal op-ed in June 2007 entitled “CSI: Nukes,” he stated that the “U.S. has long deterred a nuclear attack by states, by clearly and credibly threatening devastating retaliation.” He went on to argue that the United States should accelerate work on capabilities to trace the origin of fissile materials used in a terrorist nuclear attack, in order to be able to deter the country where the materials originate. He did not rule out U.S. use of nuclear weapons against such a country.

My organization, the Lawyers’ Committee on Nuclear Policy, this year released a statement, summarized here, that does answer Ifill’s question. In brief, the answer is it is never lawful, moral, or wise to use nuclear weapons, and therefore the United States should abandon the policy of deterrence premised on possible use and work hard for the global elimination of nuclear forces. We emphasize that nuclear use is incompatible with the present-day U.S. conduct of military operations in accordance (in the U.S. understanding) with legal requirements of necessity, proportionality, and discrimination. That is true in all the myriad circumstances (certainly not only in response to a nuclear attack) in which the United States holds out the option of use of nuclear weapons: preemptive or responsive use against biological and chemical as well as nuclear capabilities or attacks; in response to overwhelming conventional attacks; and even in response to “surprising” military developments.

Here are key passages from the summary:

Nuclear weapons cannot be used in compliance with the fundamental rules of discrimination, proportionality, and necessity acknowledged by the United States as requirements for lawful military operations. Nor is it lawful to threaten to use nuclear weapons. Further, rather than ongoing reliance on nuclear weapons, the United States is obligated under the Nuclear Non-Proliferation Treaty (NPT) to negotiate their elimination in good faith.

By recognizing the unlawfulness of nuclear weapons and working for their elimination, the United States would both fulfill its legal obligations and foster our security and that of nations and peoples throughout the world. In addition to reducing the risks arising from existing arsenals, taking this course of action would give a powerful boost to diplomatic and law-enforcement efforts to prevent the spread of nuclear weapons and their acquisition by terrorists.

Established Rules of Law Prohibiting the Use of Nuclear Weapons

The rule of discrimination prohibits the use of weapons that cannot discriminate in their effects between military and non-military targets. It is unlawful to use weapons whose effects cannot be controlled and therefore cannot be directed against a military target. The effects of nuclear weapons, including powerful and prolonged ionizing radiation with its continuing genetic and environmental as well as immediate effects, and the blast, heat, electromagnetic impulse, and escalation effects, are uncontrollable in space and time. They are not subject to the control of the user and cannot discriminate between lawful and unlawful targets. The use of nuclear weapons is therefore barred by the rule of discrimination. The rule is not subject to any balancing test and applies in every circumstance. As stated by the International Court of Justice in its 1996 advisory opinion, states must “never” use weapons incapable of meeting the “fundamental” and “intransgressible” requirement of discrimination. (Emphasis supplied.)

Under the rule of necessity, a state may only use that degree and kind of force as is necessary to achieve the military objective of a particular strike. Under the rule of proportionality, it is prohibited to use a weapon whose potential incidental effects on non-combatant persons or objects (civilian infrastructure) or damage to the environment would likely be disproportionate to the value of the military advantage anticipated from the attack. If the state cannot control such effects, it cannot ensure that the collateral effects of the attack will be proportional to the anticipated military advantage or that the force applied will only that necessary to achieve the military objective. The effects of nuclear weapons being uncontrollable, the weapons cannot be employed in compliance with the requirements of necessity and proportionality. If in extraordinary circumstances a contemplated nuclear attack is nonetheless deemed to meet those requirements, it remains barred by the requirement of discrimination.

Reprisal is not a justification for use of nuclear weapons. To be lawful, reprisals must be limited to a level of force necessary to cause the other side to cease its unlawful attack and must be proportional to that attack and necessary to address it. Due to their uncontrollability, nuclear weapons are not subject to being limited to such a level of force, nor could their effects be limited to what is proportional or necessary, nor could the effects meet the requirement of discrimination.

It may be news to some readers that the U.S. military follows, or claims to follow, the requirements of necessity, proportionality, and discrimination in its military operations in Iraq and Afghanistan. But that is indeed the case; lawyers are even involved in approving particular strikes. This is laid out in some detail in the Human Rights Watch 2003 report, Off Target: The Conduct of the War and Civilian Casualties in Iraq. At p. 94, for example, the report states (footnotes omitted):

The Third Infantry Division established another layer of review by sending lawyers to the field to review proposed strikes, a relatively recent addition to the vetting process. “Ten years ago, JAGs [judge advocate general attorneys] weren’t running around [the battlefield],” said Captain Chet Gregg, Second Brigade’s legal advisor. The division assigned sixteen lawyers to divisional headquarters and each brigade. Lead lawyer Colonel Cayce, who served at the tactical headquarters, reviewed 512 missions, and brigade JAGs approved additional attacks, which were often counter-battery strikes. Although less controversial strikes, such as those on forces in the desert, were not reviewed, Cayce said, “I would feel pretty confident a lawyer was involved in strikes in populated areas.” Commanders had the final say, but lawyers provided advice about whether a strike was legal under IHL. Cayce said his commander never overruled his advice not to attack and sometimes rejected targets he said were legal.

Another passage provides insight into how targeting decisions were made (pp. 18-19, footnotes omitted):

Collateral damage assessments are a key way for the military to fulfill its obligations under international humanitarian law. International humanitarian law requires an attack to be cancelled or suspended if it is expected to cause loss of civilian life or property that “would be excessive in relation to the concrete and direct military advantage anticipated.” Assessment of collateral damage is necessary to perform this proportionality test adequately.

U.S. air forces carry out a collateral damage estimate using a computer model designed to determine the weapon, fuze, attack angle, and time of day that will ensure maximum effect on a target with minimum civilian casualties. Defense Secretary Donald Rumsfeld reportedly had to authorize personally all targets that had a collateral damage estimate of more than thirty civilian casualties.

Asked how carefully the U.S. Air Force reviewed strikes in Iraq for collateral damage, a senior U.S. Central Command official responded, “with excruciating pain.” He told Human Rights Watch,

[T]he primary concern for the conduct of the war was to do it with absolutely minimum civilian casualties. . . . The first concern is having the desired effect on a target. . . . Next is to use the minimum weapon to achieve that effect. In the process, collateral damage may become one of the considerations that would affect what weapon we had to choose. . . . All of the preplanned targets had a CDE done very early in the process, many months before the war was actually fought. . . . For emerging target strikes, we still do a CDE, but do it very quickly. The computer software was able to rapidly model collateral effects.

Strikes with high collateral damage estimates received extra review. According to another senior CENTCOM official,

CENTCOM came up with a list of twenty-four to twenty-eight high CDE targets that we were concerned about. . . . They had a direct relationship to command and control of Iraqi military forces. These [high CDE targets] were briefed all the way to Bush. He understood the targets, what their use was, and that even under optimum circumstances, there would still be as many as X number of civilian casualties. This was the high CD target list. There were originally over 11,000 aim points when we started the high collateral targeting. Many were thrown out, many were mitigated. We hit twenty of these high collateral damage targets.

Of course, it is subject to dispute whether U.S. forces in fact do comply with legal requirements. Human Rights Watch, in a fairly conservative approach, did find violations, especially with respect to use of cluster munitions and to attacks against “leadership targets.” Others are much more critical. One can also challenge current rules of warfare as too permissive in relation to the kinds of regime-toppling, counterinsurgency wars the United States now engages in. (On this point, see “You Don’t Get the War You Want,” 16 Peace Review, Fall 2004, by Andrew Lichterman and myself, unfortunately not available online except for a charge.) Further, in Iraq at least, U.S. military operations were carried out to prosecute an illegal war of aggression.

The point here, though, is that it is inconceivable that nuclear attacks can be carried out within the framework of military operations now employed by the U.S. military. Nuclear explosions, as the one-time weapon designer and later nuclear abolitionist Ted Taylor used to say, are “off the human scale.” Though a natural process, they are supernatural in their effects. As the Lawyers’ Committee on Nuclear Policy statements explain, it is well past time for the United States to come to grips with this reality, and wean itself and the world from the addiction to nuclear weaponry and the illusory safety of “deterrence.”