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Report of the Foreign and International Law Committee of the NYCLA Part 2
The United States reportedly achieved an overall accuracy level of some 82% in the Gulf War with its BG-109 Tomahawk cruise missiles, but that was only an average, with some missions achieving a near perfect success rate and one mission obtaining a rate of only 67%
With the U.S. attacks on terrorist bases in Afghanistan and Sudan in 1998, some missiles reportedly ended up in the wrong country (Pakistan).
Similarly, in the 1999 Kosovo operation, there were numerous missile strikes that ended up at the wrong targets, both because of weapons and human error, including intelligence error.
Delivery of nuclear weapons by bomber, while having the advantage that a bomber may generally be recalled before releasing its weapons, is subject to equipment, pilot and situational error.
While certain of the more modern U.S. aircraft are extraordinarily fast and ostensibly have the capability of eluding radar detection, aircraft are inherently subject to pursuit, radar and human error—and hence to substantial risk factors as to accuracy of delivery.
These limitations on accuracy of delivery obviously impose limitations on nuclear operations not present as to conventional weapons where the implications of weapons going astray are much less serious.
Even if the warhead is delivered accurately at the target, its performance is subject to its correct functioning.
Uncontrollability of Radiation Effects if Weapons Reach Targets
The following relates to the radiation effects of nuclear weapons:
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Radiation is a defining feature of nuclear weapons. All nuclear weapons emit radiation when detonated.
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Radiation is inimical to life and cumulative in its buildup and effects, surviving in the environment and genetically in human and other life forms typically for many years (as to some elements, for thousands of years).
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The spread of radiation from the detonation of nuclear weapons could not be controlled or predicted since radiation is dispersed in the environment by forces such as the winds, the waters, the soil, animals, plants, and genetic effects, as well as vagaries as to the point of delivery of the weapon in relation to the surface and applicable environmental factors.
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Radiation cannot discriminate between friend and foe, combatant and noncombatant, adversary and neutral, one’s own population and forces and those of the enemy.
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Radiation from the Hiroshima and Nagasaki bombs, from atomic testing, and from the Chernobyl releases have caused and continue to cause substantial and widespread injury to human health and other life and may be expected to continue to do so for generations to come.
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With escalation, the levels of radiation will increase.
Uncontrollability of Overall Effects of Nuclear Weapons
Also unfounded is the U.S. position before the Court that effects of nuclear weapons are essentially comparable to those of conventional weapons.
The ICJ described the “unique characteristics” of nuclear weapons:
The Court … notes that nuclear weapons are explosive devices whose energy results from the fusion or fission of the atom. By its very nature, that process, in nuclear weapons as they exist today, releases not only immense quantities of heat and energy, but also powerful and prolonged radiation. According to the material before the Court, the first two causes of damage are vastly more powerful than the damage caused by other weapons, while the phenomenon of radiation is said to be peculiar to nuclear weapons. These characteristics render the nuclear weapon potentially catastrophic. The destructive power of nuclear weapons cannot be contained in either space or time. They have the potential to destroy all civilization and the entire ecosystem of the planet.
The radiation released by a nuclear explosion would affect health, agriculture, natural resources and demography over a very wide area. Further, the use of nuclear weapons would be a serious danger to future generations. Ionizing radiation has the potential to damage the future environment, food and marine ecosystem, and to cause genetic defects and illness in future generations.
36. In consequence … it is imperative for the Court to take account of the unique characteristics of nuclear weapons, and in particular their destructive capacity, their capacity to cause untold human suffering, and their ability to cause damage to generations to come.
The effects of nuclear weapons were described further in dissenting opinions of individual judges of the ICJ. Judge Weeramantry stated that “[a] 5-megaton weapon would represent more explosive power than all of the bombs used in World War II and a twenty- megaton bomb more than all of the explosives used in all of the wars in the history of mankind.”
Judge Koroma stated:
According to the material before the Court, it is estimated that more than 40,000 nuclear warheads exist in the world today with a total destructive capacity around a million times greater than that of the bomb which devastated Hiroshima. A single nuclear bomb detonated over a large city is said to be capable of killing more than 1 million people. These weapons, if used massively, could result in the annihilation of the human race and the extinction of human civilization. Nuclear weapons are thus not just another kind of weapon, they are considered the absolute weapon and are far more pervasive in terms of their destructive effects than any conventional weapon.
Judge Shahabuddeen quoted Javier Perez de Cuellar, Secretary-General of the United Nations, to similar effect:
“The world’s stockpile of nuclear weapons today is equivalent to 16 billion tons of TNT. As against this, the entire devastation of the Second World War was caused by the expenditure of no more than 3 million tons of munitions. In other words, we possess a destructive capacity of more than a 5,000 times what caused 40 to 50 million deaths not too long ago. It should suffice to kill every man, woman and child 10 times over.
The U.S. Joint Chief of Staff’s Joint Nuclear Operations manual recognizes that “the use of nuclear weapons represents a significant escalation from conventional warfare.” The manual states:
The fundamental differences between a potential nuclear war and previous military conflicts involve the speed, scope, and degree of destruction inherent in nuclear weapons employment, as well as the uncertainty of negotiating opportunities and enduring control over military forces.
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Since nuclear weapons have greater destructive potential, in many instances they may be inappropriate.
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The immediate and prolonged effects of WMD—including blast, thermal radiation, prompt (gamma and neutron) and residual radiation—pose unprecedented physical and psychological problems for combat forces and noncombatant populations alike.
The U.S. Joint Chief of Staff’s Joint Theater Nuclear Operations manual similarly states:
Nuclear weapons are unique in this analysis [as to “the long-standing targeting rules of military necessity, proportionality, and avoidance of collateral damage and unnecessary suffering] only in their greater destructive potential (although they also different from conventional weapons in that they produce radiation and electromagnetic effects and, potentially, radioactive fallout).
The manual further recognizes that the employment of nuclear weapons “signifies an escalation of the war.”
Conclusion as to Uncontrollability
Based on the foregoing, the uncontrollability of the effects of nuclear weapons, including of the escalation, radiation and other destructive effects, seems clear, causing the use of such weapons to be unlawful under the rules of discrimination, necessity, and proportionality.
We recognize that the United States argued before the ICJ that it can control the effects of nuclear weapons. In his arguments before the ICJ on the point, Mr. McNeill stated on behalf of the United States:
Nuclear weapons, as is true of conventional weapons, can be used in a variety of ways: they can be deployed to achieve a wide range of military objectives of varying degrees of significance; they can be targeted in ways that either increase or decrease resulting incidental civilian injury or collateral damage; and their use may be lawful or not depending upon whether and to what extent such use was prompted by another belligerent’s conduct and the nature of the conduct.
Noting that it has been argued that nuclear weapons are inherently indiscriminate in their effect and cannot reliably be targeted at specific military objectives, McNeill stated:
This argument is simply contrary to fact. Modern nuclear weapon delivery systems are, indeed, capable of precisely engaging discrete military objectives.
In its memorandum to the ICJ, the United States, again in the context of the discrimination rule, presented to the Court this same picture that the effects of nuclear weapons—of which radioactive fallout is obviously the most grave—are essentially controllable, and not a real problem. The United States stated that, through the technological expertise of “modern weapon designers,” it is now able to control the effects of nuclear weapons— specifically, “to tailor the effects of a nuclear weapon to deal with various types of military objectives:”
It has been argued that nuclear weapons are unlawful because they cannot be directed at a military objective. This argument ignores the ability of modern delivery systems to target specific military objectives with nuclear weapons, and the ability of modern weapons designers to tailor the effects of a nuclear weapon to deal with various types of military objectives. Since nuclear weapons can be directed at a military objective, they can be used in a discriminate manner and are not inherently indiscriminate.
In support of his argument that each use of nuclear weapons would have to be evaluated on an individual basis and not in “the abstract” McNeill noted to the Court that the effects of nuclear weapons depend on such factors as “the explosive yield and height of the burst of individual weapons, on the character of their targets, as well as on climatic and weather conditions,” and on “the technology that occasions how much radiation the weapon may release, where, in relation to the earth’s surface it will be detonated, and the military objective at which it would be targeted.”
Addressing the subject of the many studies indicating that impermissible levels of damage would result from the use of nuclear weapons, McNeill objected that any given study “rests on static assumptions” as to such factors as the following: “the yield of a weapon, the technology that occasions how much radiation the weapon may release, where, in relation to the earth’s surface it will be detonated, and the military objective at which it would be targeted.” Again, the United States appeared to be asserting the technological controllability of radiation effects of nuclear weapons.
We find the arguments of the United States that the effects of nuclear weapons are subject to control unpersuasive. The United States’ recognition, outside of the ICJ, of the uncontrollability of the effects of nuclear weapons is compelling.
Further Bases of Unlawfulness
Even beyond the element of uncontrollability, the use of nuclear weapons would violate the law of armed conflict.
Because the legal analysis depends so heavily on issues as to the likely effects of using nuclear weapons, we first address that factual issue.
Overall Risk Factors of Nuclear Weapons Use
The U.S. military recognize the presence of such risk factors. The Joint Chief of Staff’s Joint Nuclear Operations manual, for example, as noted, states that “there can be no assurances that a conflict involving weapons of mass destruction could be controllable or would be of short duration.” The manual further notes that “US forces must be able to survive a first strike and endure conventional and escalatory attrition with sufficient retaliatory strength to inflict unacceptable damage on the enemy in a counterstrike.” To the same effect, the manual states, “From a massive exchange of nuclear weapons to limited use on a regional battlefield, US nuclear capabilities must confront an enemy with risks of unacceptable damage and disproportionate loss should the enemy choose to introduce WMD into a conflict.”
The Joint Theater Nuclear Operations manual further notes that the risks of using nuclear weapons depend upon such matters as delivery system accuracy and height of burst, certainly themselves prime risk factors. Discussing “Nuclear Collateral Damage,” the manual states, “The amount of damage varies with the protective posture of civilians and friendly units, delivery system accuracy, weapon yield, and height of burst.” In its arguments before the ICJ, the United States acknowledged the significance of “climatic and weather conditions,” certainly risk factors of a notoriously unpredictable nature, as well as the “character of the targets,” also a major variable, particularly given accuracy of delivery and escalation risks.
The Joint Nuclear Operations manual also emphasizes the extremely compressed time frames in which decisions as to use of nuclear weapons will have to be made, certainly another major risk factor: “In a matter of seconds for the defense, and minutes for the offense, critical decisions must be made in concert with discussions with NCA.”
The U.S. military’s Joint Theater Nuclear Operations and the Joint Nuclear Operations manuals note the flexibility of target selection the combat commanders must have in such compressed time frames and the need for ad hoc judgments:
Because preplanned theater nuclear options do not exist for every scenario, CINCs must have a capability to plan and execute nuclear options for nuclear forces generated on short notice during crisis and emergency situations. During crisis action planning, geographic combatant commanders evaluate their theater situation and propose courses of action or initiate a request for nuclear support.
Emergent Targets and Adaptive Planning. Even after the initial laydown of nuclear weapons, there may be a residual requirement to strike additional (follow on and/or emerging) targets in support of retaliatory or war-termination objectives. Commanders must maintain the capability to rapidly strike previously unidentified or newly emerging targets. This capability includes planning for and being able to perform “ad hoc” planning on newly identified targets and maintaining a pool of forces specifically reserved for striking previously unidentified targets. It is important to recognize that success in engaging emerging targets depends heavily upon the speed with which they are identified, targeted, and attacked.
The Nuclear Weapons Operations manual further notes the need for decisive strikes, once the decision to go nuclear has been made:
Some targets must be struck quickly once a decision to employ nuclear weapons has been made. Just as important is the requirement to promptly strike high-priority, time- sensitive targets that emerge after the conflict begins. Because force employment requirements may evolve at irregular intervals, some surviving nuclear weapons must be capable of striking these targets within the brief time available. Responsiveness (measured as the interval between the decision to strike a specific target and detonation of a weapon over that target) is critical to ensure engaging some emerging targets.
The manual also notes the potentially provocative nature of resorting to states of increased readiness:
Alert posturing of nuclear delivery systems to dispersal locations can send a forceful message that demonstrates the national will to use nuclear weapons if necessary. For example, the generation of nuclear forces to higher alert levels during the October 1973 Mideast Crisis sent a strong signal. However, the danger also exists that the enemy may perceive either an exploitable vulnerability or the threat of imminent use.
The manual further notes, on the issue of credibility, that, under the policy of deterrence, “[t]he potential aggressor must believe the United States could and would use nuclear weapons to attain its security objectives.” The manual notes the interrelationship of operational readiness and escalation:
– Escalation. Should a crisis become so severe as to prompt the United States to place all its nuclear forces at a high level of readiness, the United States must be prepared to posture its nuclear forces as quickly as possible. Nuclear forces should be generated and managed to ensure a sustained high level of readiness. Conventional forces and intelligence activities would have to be prudently managed to ensure avoidance of inadvertent escalation or mistaken warnings of nuclear attack.
In terms of the risks of escalation, the U.S. military has recognized the need for preemptive strikes against enemy delivery systems capable of delivering weapons of mass destruction. The Joint Theater Nuclear Operations manual states:
Operation planning should include the possibility that an enemy will use WMD. … Operations must be planned and executed to destroy or eliminate enemy WMD delivery systems and supporting infrastructure before they can strike friendly forces.
Obviously, the potential for the United States’ conducting such preemptive strikes is a risk factor as to the overall volatility of weapons of mass destruction in situations of acute crisis, imposing on the adversary the same “use ‘em or lose ‘em” mentality affecting the U.S. policy of preemptive strike in the first instance. A policy—or even the hint of a policy—of preemptive strike inherently breeds a counter policy of preemptive strike—with the potential for escalating levels of hair triggerism.
The Joint Nuclear Operations manual notes the risk of rapid escalation if conventional warfare leads to an attrition of nuclear forces and supporting systems, “If this attrition results in a radical change in the strategic force posture by eliminating intermediate retaliatory steps, there may be a rapid escalation.”
The manual further notes how the loss of intelligence as to the level of attrition of nuclear and other forces “will directly effect calculations on the termination of war and the escalation to nuclear war:”
– Controlling Escalation. Nuclear weapons may influence the objectives and conduct of conventional warfare. Additionally, conventional warfare may result in attrition of nuclear forces and supporting systems (through antisubmarine warfare, conventional attacks in theater, sabotage, or antisatellite warfare), either unintended or deliberate, which could affect the forces available for nuclear employment. If this attrition results in a radical change in the strategic force posture by eliminating intermediate retaliatory steps, there may be a rapid escalation. The ability to precisely gauge the attrition of conventional and nuclear forces will directly effect calculations on the termination of war and the escalation to nuclear war.
Another risk factor is the likely use of multiple nuclear weapons, were any such weapons to be used. The U.S. military in their manual Doctrine for Joint Theater Nuclear Operations characterize “employing multiple weapons” as one of the “[m]ethods for reducing collateral damage.” Redundant targeting—sometimes called “layering”—is part of the U.S. targeting planning for nuclear weapons, as reflected in the Joint Nuclear Operations manual:
– Layering. Layering is a targeting methodology that plans employing more than one weapon against a target to increase the probability of its destruction or to improve the confidence that a weapon will arrive and detonate on that target and achieve a specified level of damage.
Redundant targeting is also accompanied by the use of different types of nuclear weapons and delivery vehicles:
– Crosstargeting. At the same time it incorporates the concept of “layering,” crosstargeting also uses different platforms for employment against one target to increase the probability of at least one weapon arriving at that target. Using different delivery platforms such as ICBMs, SLBMs, or aircraft-delivered weapons increases the probability of achieving the desired damage or target coverage.
The potential for events lurching out of control, causing warfare never intended or desired by combatant States or groups and their leaders, has become a truism. Barbara W. Tuchman in The March of Folly traced the vagaries involved in the precipitation of such conflicts as the Trojan War, the Protestant Succession against the Renaissance Popes, the American Revolution, and the Vietnam War. So also, in The Guns of August, Tuchman described steps whereby World War I broke out against the desires and expectations of participants.
The recent revelations as to the misinformation leading to the U.S. cruise missile attacks against the pharmaceutical plant at Al Shifa in Sudan in 1998 further illustrate the vagaries of such decision making even in the absence of great military pressure. Serious disagreement existed within various organs of the U.S. government as to whether the target plant was in fact a chemical weapons facility, and it appears that the evidence to that effect was limited and seriously doubted by senior intelligence officials. It further appears that questions and uncertainties as to the legitimacy of the venture were suppressed for purposes of avoiding rocking the boat.
Former Secretary of Defense Robert S. McNamara has similarly noted the extraordinary extent of the misinformation under which the United States and the Soviets were laboring during the Cuban missile crisis—and how close the parties came to nuclear war that neither wanted. Secretary McNamara has also described, based on recent exchanges among former leaders of both sides of the Vietnam war, how poor each side’s intelligence was about the other, how profound the cultural misunderstandings were, and how mistaken the assessments of each other’s intentions and motivations.
The reality of the risks of use of nuclear or other weapons of mass destruction can be seen from the numerous instances during the Cold War in which the United States considered, threatened or took preparatory steps for the use of nuclear weapons. In addition to the ongoing threat that is inherent in the policy of deterrence, the United States explicitly threatened to use nuclear weapons on at least five occasions during the Cold War, including in Korea in 1950-53, Suez in 1956, Lebanon in 1958, Cuba in 1962, the Middle East in 1973, and, after the Cold War, in Iraq during the Gulf War.
Analysts have noted additional times when “responsible officials of the United States government formally considered the use of nuclear weapons,” including Vietnam in 1954; Quemoy and Matsu in 1954-1955, 1958; Middle East in 1967; Suez in 1970; Jordan in 1970; Cuba in 1970; India and Pakistan in 1971; Vietnam in 1968-1972; and Lebanon in 19821983.
And that is just the United States. Each of the other nuclear, chemical and biological weapons States poses its own risk factors, assuring the presence of considerable potential volatility in any significant international crisis.
The extent of the proliferation of these weapons also constitutes a risk factor. Declared nuclear powers, as noted, are the United States, Russia, Britain, France, China, India, and Pakistan. Israel also has nuclear weapons and Brazil and Argentina have an imminent capacity to have such weapons. South Africa, North Korea, Iraq, Iran, Libya, Taiwan, Ukraine, Belarus and Kazakhstan have all had nuclear weapons programs at one time or another and Egypt has declared its determination to acquire nuclear weapons if necessary for its security.
More than twenty-five nations possess biological or chemical weapons capability, including North Korea, China, India, Pakistan, Iran, Iraq, Libya, Syria, and Russia, along with such non-national entities and groups as the Aum Shinrikyo in Japan and the Aryan Nations in the United States at various times. Numerous States have long-range missile capabilities, including China, India, Iran, Israel, Libya, North Korea, Syria, and Russia.
As another risk factor, former Secretary of Defense Robert McNamara has noted the “cavalier” attitude at times the U.S. military has had to the use of nuclear weapons, including towards the potential use of nuclear weapons in the Vietnam war. He cited the Joint Chief’s willingness potentially to use nuclear weapons in Vietnam even at the risk of nuclear confrontation with China and the Soviet Union “in Southeast Asia or elsewhere” and their willingness potentially to use nuclear weapons even in “southern China” in early 1964.
The military and at times the White House appear to have abnegated the pledge made by several Presidents not to use nuclear weapons against non-nuclear adversaries, such pledge being made by the United States first as a matter of policy and then by way of security assurance to non-nuclear States as an inducement to them to extend the Treaty on the Non-Proliferation of Nuclear Weapons.
It further appears that the military have pressed in the post Cold War era to extend deterrence to widescale targeting of chemical and biological targets, and that the White House has acceded and at times participated.
While in a sense the world seems safer from the perspective of the United States following the demise of the Soviet Union and the end of the Cold War, paradoxically that is not necessarily the case. Extreme as the competition between the U.S. and Soviet blocs seemed at times, with hindsight it obviously served as a unifying force, whereby each of the two leader nations, stalemated by the nuclear confrontation, controlled its respective allies. Today’s multi-polar world offers quite a contrast, with the potential for situations that would have been controlled or prevented by the United States or the Soviet Union to now careen out of control.
Risks of Escalation
But what of the war-fighting theory, the notion that tactical nuclear weapons could be used not cataclysmally against enemy population centers but in a surgical way against significant military targets, such as hardened command centers and weapons of mass destruction? It has been recognized by the political and military leadership of the United States and other defense experts and commentators that even such a limited use of nuclear weapons would likely lead to escalation and massive nuclear exchanges.
As noted above, the U.S. military, in today’s strategic environment, specifically recognizes numerous factors fostering escalation. The overriding factor is the uncontrollability of the situation once nuclear, chemical or biological weapons are used. As reflected in Joint Pub 3-12, Doctrine for Joint Nuclear Operations, “There can be no assurances that a conflict involving weapons of mass destruction could be controllable or would be of short duration.”
The U.S. military’s recognition of the potential need for preemptive strikes against enemy delivery systems highlights the risks of escalation. As reflected in the Doctrine for Joint Theater Nuclear Operations, “Operations must be planned and executed to destroy or eliminate enemy WMD delivery systems and supporting infrastructure before they can strike friendly forces.
The potential for such preemptive strikes fosters the potential for the enemy’s corresponding preemptive strikes.
The Joint Nuclear Operations manual notes that “there may be a rapid escalation” once strikes against nuclear assets begin to affect “the forces available for nuclear employment.”
The military’s policies of concentration of force and redundant targeting, including “layering” and “cross-targeting,” potentially involving the use of multiple nuclear weapons, are inherently escalatory, as are the extreme time pressures involved—potentially “seconds for the defense, and minutes for the offense.” The time is limited because of such factors as “the relatively short flight time of theater missiles and potential increased uncertainty of mobile offensive force target locations.”
Also inherently of an escalatory nature is the U.S. nuclear targeting doctrine of decapitation, as reflected in the Joint Nuclear Operations manual, whereby the political leadership of an opposing nation is the “central object of deterrence” on the theory that “that is where the ultimate decision to use military force lies.”
The potential for escalation is also fostered by the risks of miscalculation and irrationality:
“[S]omeday a nation may, through miscalculation or by deliberate choice, employ these weapons. [A]n opponent may be willing to risk destruction or disproportionate loss in following a course of action based on perceived necessity, whether rational or not in a totally objective sense. In such cases deterrence, even based on the threat of massive destruction, may fail.
The Joint Nuclear Operations manual also notes the risk of misperception and nonsusceptibility to deterrence, “It is possible that an adversary may misperceive or purposefully ignore a credible threat.”
There have been many statements by the leadership of the United States over the years as to the unlikelihood that a low level use of nuclear weapons would stay at that level.
Legal Effects of such Risk Factors
The presence of such risk factors is a basis for the unlawfulness of the use of nuclear weapons under the law of armed conflict, including under the rules of proportionality, discrimination, and necessity.
Rule of Proportionality
If any use would likely involve the multiple use of strategic nuclear weapons and subsequent escalation; or if even the most limited of nuclear strikes would likely precipitate escalation to broader use of nuclear, chemical and/or biological weapons, it would seem the potential risks would virtually always outweigh the potential military benefits.
Valuation Issues
But what of the valuation issues: What of the State that says, “The chance of saving my country justifies risking substantial injury to the rest of the world!”
This valuation question, in a world of sovereign nations, is, of course, a difficult one. But there is an answer. Indeed, several answers.
First of all, the proportionality, necessity, and discrimination rules, as we have seen, are rules of reason subject to an objective standard.
Thus, The Naval/Marine Commander’s Handbook, addressing how the proportionality determination is to be made, states that the commander “must determine whether incidental injuries and collateral damage would be excessive, on the basis of an honest and reasonable estimate of the facts available to him.” “[T]he commander must decide, in light of all the facts known or reasonably available to him … whether to adopt an alternate method of attack, if reasonably available, to reduce civilian casualties and damage.”
Secondly, the rules of interpretation would appear to offer a principled basis for resolving any stalemate, particularly the rule that the law is to be interpreted in light of its purpose.
Nature and Purposes of the Law of Armed Conflict
The United States has recognized numerous fundamental purposes of the law of armed conflict that would ostensibly preclude actions precipitating the extreme effects that could result from the use of nuclear weapons:
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to provide common ground of rationality between enemies;
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to represent minimum standards of civilization;
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to preclude purposeless, unnecessary destruction of life and property;
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to ensure that violence is used only to defeat the enemy’s military forces;
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to safeguard fundamental human rights of persons falling into the hands of the enemy, particularly prisoners of war, the wounded and sick, and civilians;
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to facilitate the restoration of peace and friendly relations; and
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to assure the survival of civilization and of the human species.
The Naval/Marine Commander’s Handbook states that the “essential” purpose of the law of war is to provide “common ground of rationality between enemies,” adding, “The law of armed conflict is intended to preclude purposeless, unnecessary destruction of life and property and to ensure that violence is used only to defeat the enemy’s military forces.”
Sovereign Equality of Individual States
Also relevant to the proportionality analysis is the principle of the equality under international law of the over 190 independent States that exist in the world today.
Quoting Article 2, paragraph 1 of the Charter of the United Nations (“The Organization is based on the principle of sovereign equality of all of its Members”), Judge Koroma, in his dissenting opinion in the Nuclear Weapons Advisory Decision, stated:
The principle of sovereign equality of States is of general application. It presupposes respect for the sovereignty and territorial integrity of all States. International law recognizes the sovereignty of each State over its territory as well as the physical integrity of the civilian population. By virtue of this principle, a State is prohibited from inflicting injury or harm on another State. The principle is bound to be violated if nuclear weapons are used in a given conflict, because of their established and well- known characteristics. The use of such weapons would not only result in the violation of the territorial integrity of non-belligerent States by radioactive contamination, but would involve the death of thousands, if not millions, of the inhabitants of territories not parties to the conflict.
Numbers of People Potentially at Risk
Given the genetic and environmental effects of nuclear weapons and the extent to which the applicable legal tests turn on the number of protected persons killed and injured, it is relevant to consider the number of people living in the world and potentially living in the future who could be affected by the use of nuclear weapons today.
The U.S. Census Bureau estimates the number of people living in the world as of September 6, 1999 to be 6,010,449,025 and the Population Division of the United Nations projects the world population as stabilize at 11,600,000,000 just after 2200.
The High Tech Conventional Weapons Alternative
Also of central relevance to the analysis and the other rules discussed herein is the question of the extent to which the particular mission could be carried out with conventional weapons.
The Air Force Commander’s Handbook states that, in making the proportionality determination, the commander must decide, “in the light of all the facts known whether to adopt any alternative method of attack to further reduce civilian casualties and damage.”
The Air Force Manual on International Law states that application of the proportionality test requires consideration “whether some alternative form of attack would lessen collateral damage and casualties.” The manual adds that “those who plan or decide upon an attack” must “[t]ake all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians, and damage to civilian objects.”
Thus, the determination of proportionality with respect to the use of nuclear weapons includes a comparison of the probable results of using conventional as opposed to nuclear weapons.
During the Cold War the United States had permitted a strategic situation to develop whereby the Soviet Union had a superior conventional weapons capacity to the United States, to the extent that the Soviet Union was potentially able to overrun Western Europe with such weapons.
While the United States and Western Europe had had the financial means of developing a conventional weapons capability sufficient to meet the Soviet threat, they had chosen not to do so, relying instead on nuclear weapons and the policy of nuclear deterrence.
This choice was based on many factors, including perhaps a failure in the beginning to grasp the significance and implications of these weapons and the related risk factors.
Historically, nuclear weapons were seen as cheaper than conventional weapons and hence as a way for the United States to contain the Soviet threat without spending the money necessary for a conventional capability comparable to that maintained by the Soviet Union and, as a result, to have more funds for civilian pursuits.
That economy has turned out to have been illusory. The direct costs of nuclear weapons have been much higher than anticipated and substantial indirect costs have become apparent, including the ongoing costs of storing and disposing of radioactive and other toxic wastes and of dismantling nuclear weapons systems and disposing of surplus nuclear materials, as well as compensating workers and family members of workers whose health has been impaired by nuclear materials.
While, during the Cold War, the United States depended upon the threat of use of nuclear weapons to compensate for conventional weapons inferiority, today the tables have turned. The United States is the preeminent conventional power in the world and is now itself threatened by the nuclear weapons possessed or potentially possessed by weaker States and groups.
In ironic contrast, Russia is now substantially weakened and heavily dependent on nuclear weapons, far more so than the United States ever was.
Like nuclear weapons, conventional weapons destroy through blast and heat, but conventional weapons do not generally emit radiation. Their effects are generally limited to the blast and heat.
Modern computer technology, with the tradeoff between accuracy and firepower, has led to a revolution in conventional weaponry, as demonstrated in the 1999 Kosovo operation, to the extent that the United States could now likely achieve with conventional weapons most if not all missions for which it might have used strategic or tactical nuclear weapons.
The key is twofold (1) the number of weapons used; and (2) the relationship between necessary blast and accuracy of delivery.
While even the most powerful conventional weapons do not have the destructive power of nuclear weapons, such lesser destructiveness can generally be compensated for when necessary by using a greater number of conventional weapons, particularly given the substantial increase in the accuracy with which such weapons can be delivered.
It has always been the case that a combatant could achieve with multiple conventional weapons levels of immediate destruction comparable to those achievable with nuclear weapons. The Allied conventional bombing of Tokyo, involving the use of hundreds of bombers, wrought destruction comparable to that of the single atomic attack on Hiroshima.
We saw further examples from the 1991 United Nations analysis to the trade-off between missile accuracy and the level of destructiveness needed for a particular mission:
Missile accuracy is usually given in terms of the circular error probable (CEP), defined as the distance from an aiming point within which, on the average, half the shots aimed at this point will fall. Using this concept, assessments of the efficiency of various missile systems can be illustrated. For example, a 1 Mt nuclear warhead may be needed in order to destroy a particular hardened structure if the CEP of that nuclear weapon is 1 km. The same effect could result from a 125 kt warhead with a 0.5 km CEP accuracy, or a 40 kt warhead with a 0.33 km CEP. Thus, increased accuracy meant that smaller yield warheads could replace high yield warheads as a threat to these types of targets.
If, instead even of a 0.33 km CEP, the target can be hit directly on the head, even less firepower, whether delivered by conventional or nuclear weapon, would be necessary.
The National Defense Panel in its 1997 report stated:
We should also consider the potential of non-nuclear weapons to strengthen deterrence. Advancing military technologies that merge the capabilities of information systems with precision-guided weaponry and real-time targeting and other new weapons systems may provide a supplement or alternative to the nuclear arsenals of the Cold War.
Conclusion as to Proportionality Rule
Based on the foregoing, it would seem that virtually any realistically likely use of nuclear weapons would violate the proportionality rule.
Rule of Discrimination
Given the facts discussed above, it would seem equally clear that virtually any realistically likely use of nuclear weapons would violate the rule of discrimination. The effects are too big, too broad and too blunderbuss. Even the radiation from a single limited use of nuclear weapons would be potentially so uncontrollable and unlimited as to violate these rules, but that would only be the beginning, given the unrealistic nature of the assumption that that is the way nuclear weapons would be used, if they were ever used, and the likelihood of escalation.
Rule of Necessity
Obviously, the requirement of necessity is not met in circumstances where the mission could be handled by conventional weapons. But there is an additional point that has not been much focused on: The rule of necessity requires that the strike appear likely to yield a concrete military benefit.
Accordingly, a strike that is likely to boomerang, resulting, whether because of escalation or miscalculation or mistake or the operation of the winds and waters or the like, in a net detriment to the acting State, would not satisfy the necessity test.
We do not believe that the above description of applicable risk factors is controversial or that the conclusion is controversial that the widescale use of nuclear weapons would be unlawful because of its likely effects. What is controversial is our conclusion that all uses—even the limited use of so-called precision “low-yield” tactical nuclear weapons—would be unlawful.
Alluding to the assumptions made by the World Health Organization (WHO) in its 1987 study as to the effects of nuclear weapons, McNeill, as noted above, objected to the “four scenarios” depicted by the WHO as “highly selective” in that they addressed “civilian casualties expected to result from nuclear attacks involving significant numbers of large urban area targets or a substantial number of military targets.”
But no reference is made in the report to the effects to be expected from other plausible scenarios, such as a small number of accurate attacks by low-yield weapons against an equally small number of military targets in non-urban areas.
Reinforcing the point as to “other plausible [low-end use] scenarios,” McNeill stated that such plausibility “follows from a fact noted in the WHO Report by Professor Rotblat: namely, that ‘remarkable improvements’ in the performance of nuclear weapons in recent years have resulted in their ‘much greater accuracy’” stating that such scenarios “would not necessarily raise issues of proportionality or discrimination.”
The ICJ concluded that it did not have sufficient facts to resolve this issue. While finding the use of nuclear weapons to be “potentially catastrophic” and “scarcely reconcilable” with the rules of discrimination and necessity, the Court concluded that it did not have “sufficient elements” to determine that all uses of nuclear weapons would be unlawful:
96. [T]he Court cannot lose sight of the fundamental right of every State to survival, and thus its right to resort to self-defense, in accordance with Article 51 of the Charter, when its survival is at stake.
Nor can it ignore the practice referred to as “policy of deterrence,” to which an appreciable section of the international community adhered for many years. The Court also notes the reservations which certain nuclear-weapon States have appended to the undertakings they have given, notably under the Protocols to the Treaties of Tlatelolco and Rarotonga, and also under declarations made by them in connection with the extension of the Treaty on the Non-Proliferation of Nuclear Weapons, not to resort to such weapons.
97. Accordingly, in view of the present state of international law viewed as a whole, as examined above by the Court, and of the elements of fact at its disposal, the Court is led to observe that it cannot reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of self-defense, in which its very survival would be at stake.
The facts which the Court found to be missing ostensibly had to do with the likely effects of the use of low-yield tactical nuclear weapons and the risk of escalation. The Court first noted the view expressed by the United Kingdom in its written submission to the Court, and the United States in its oral argument:
91. … The reality … is that nuclear weapons might be used in a wide variety of circumstances with very different results in terms of likely civilian casualties. In some cases, such as the use of a low yield nuclear weapon against warships on the High Seas or troops in sparsely populated areas, it is possible to envisage a nuclear attack which caused comparatively few civilian casualties. It is by no means the case that every use of nuclear weapons against a military objective would inevitably cause very great collateral civilian casualties.
The Court then noted the contrasting view of other States:
92. … [R]ecourse to nuclear weapons could never be compatible with the principles and rules of humanitarian law and is therefore prohibited. In the event of their use, nuclear weapons would in all circumstances be unable to draw any distinction between the civilian population and combatants, or between civilian objects and military objectives, and their effects, largely uncontrollable, could not be restricted, either in time or in space, to lawful military targets. Such weapons would kill and destroy in a necessarily indiscriminate manner, on account of the blast, heat and radiation occasioned by the nuclear explosion and the effects induced; and the number of casualties which would ensue would be enormous. The use of nuclear weapons would therefore be prohibited in any circumstance, notwithstanding the absence of any explicit conventional prohibition.
While concluding that it was unable to resolve these polar factual positions, the Court noted that the proponents of legality had failed to substantiate their position as to the possibility of limited use, without escalation, of low level nuclear weapons or even of the potential utility of such use if it were possible:
95. … [N]one of the States advocating the legality of the use of nuclear weapons under certain circumstances, including the “clean” use of smaller, low yield tactical nuclear weapons, has indicated what, supposing such limited use were feasible, would be the precise circumstances justifying such use; nor whether such limited use would not tend to escalate into the all-out use of high yield nuclear weapons. This being so, the Court does not consider that it has a sufficient basis for a determination of the validity of this view.
The Court declined to engage in risk analysis:
43. Certain States contend that the very nature of nuclear weapons, and the high probability of an escalation of nuclear exchanges, mean that there is an extremely strong risk of devastation. The risk factor is said to negate the possibility of the condition of proportionality being complied with. The Court does not find it necessary to embark upon the quantification of such risks; nor does it need to enquire into the question whether tactical nuclear weapons exist which are sufficiently precise to limit those risks: it suffices for the Court to note that the very nature of all nuclear weapons and the profound risks associated therewith are further considerations to be borne in mind by States believing they can exercise a nuclear response in self-defense in accordance with the requirements of proportionality.
This issue of risk analysis would appear to be the heart of the matter. In a milieu in which the dominant policy of nuclear deterrence is inherently provocative, the question of the extent to which any State may subject the rest of the world, or any appreciable portion of it, to the risk of severe, even apocalyptic, effects would appear to be one that must be addressed if the law in this area is to be meaningful.
The applicability of risk analysis would seem to be recognized by the U.S. statement of the proportionality test to the ICJ:
Whether an attack with nuclear weapons would be disproportionate depends entirely on the circumstances, including the nature of the enemy threat, the importance of destroying the objective, the character, size and likely effects of the device, and the magnitude of the risk to civilians.
As to the applicability of risk analysis to nuclear weapons, Robert McNamara, reacting to the potential willingness of the United States’ military leaders to use nuclear weapons in Vietnam, objected that “even a low risk of a catastrophic event must be avoided.”
Henry Kissinger, speaking in Brussels in 1979, reportedly questioned whether the United States would ever initiate a nuclear strike against the Soviet Union based upon a Soviet attack on Western Europe, given the attendant risk factors:
Our European allies, he said, should not keep asking us to multiply strategic assurances that we cannot possibly mean or if we do mean, we would not execute because if we execute we risk the destruction of civilization.
General George Lee Butler, who served as the Commander of the Strategic Air Command and hence as the Air Force general responsible for drafting the overall U.S. strategy for nuclear war, has reported how amazed he was “by how little high-level scrutiny [the U.S. nuclear war plan] had received over the years, and by how readily his military colleagues threw up their hands and rolled their eyes at the grim challenge of converting mathematical estimates of the destructiveness of nuclear arms and the resilience of Soviet structures into dry statistical formulas for nuclear war.”
“It was all Alice-in-Wonderland stuff,” Butler says. The targeting data and other details of the war plan, which are written in an almost unfathomable million lines of computer software code, were typically reduced by military briefers to between 60 and 100 slides that could be presented in an hour or so to the handful of senior U.S. officials who were cleared to hear it:
“Generally, no one at the briefings wanted to ask questions because they didn’t want to embarrass themselves. It was about as unsatisfactory as could be imagined for that subject matter. The truth is that the president only had a superficial understanding” of what would happen in a nuclear war, Butler says. “Congress knew even less because no lawmaker has ever had access to the war plan, and most academics could only make ill-informed guesses.
There is a perception in Washington and in the defense establishment generally that the contingency plans for the use of nuclear weapons are so complex and specialized as essentially to be the domain of the military, and indeed of the small group within the military responsible for such matters, thereby largely excluding the President and other civilian leadership and even the military leadership itself from significant and intelligent participation. Even more, there is the perception that the overall policy guidelines are so broad and the intricacies of the SIOP so arcane as to permit the military running the SIOP to do pretty much what they want without any significant oversight.
William Arkin and Hans Kristensen stated in the Bulletin of the Atomic Scientists:
Meanwhile, the [Clinton Administration] had begun to echo a perennial Washington complaint that strategic planners had effectively excluded both civilian and other military policy-makers from the details of nuclear war plans, and that they read into the national guidance whatever they chose, allowing them to retain never-changing first- strike options. …
But the problem went beyond a simple case of insubordination: The choreography of nuclear war-fighting was so complex that few outside STRATCOM’s Omaha headquarters were in a position to challenge its claims about “required” readiness, synergy, or military capacity. And by staying firmly in control of all the analytic tools, STRATCOM [previously called “SAC”] could deflect any of Washington’s changes.
Notwithstanding the doctrine that only the President can authorize the use of nuclear