International Law of Armed Conflict on Light of Contemporary Deterrence Strategies: Empty Promise or Meaningful Restraint, The

The International Law of Armed Conflict in Light of

Contemporary Deterrence Strategies: Empty Promise or

Meaningful Restraint?

Daniel J. Arbess*

The legal status of nuclear warfare has been
a topic of considerable concern for interna-
tional lawyers in recent years. Distinguished
scholars who have viewed nuclear war as vi-
olating existing obligations of international
law must now address two powerful counter-
arguments: (1) that the initiation of nuclear
war involving attacks against military in-
stallations using highly selective nuclear
weapons, or retaliatory nuclear attacks, would
be lawful; and (2) that, regardless of the legal
status of nuclear warfare, possession and
threatened use of nuclear weapons for pur-
poses of deterrence are unconditionally law-
ful. After identifying and reconsidering the
relevance of the rules of law applicable to
nuclear deterrence policies, the author ap-
plies them to the specific scenarios in which
contemporary deterrence strategies contem-
plate the use of nuclear weapons, concluding
that such a usage in each scenario would be
unlawful. He pursues this line of reasoning
to consider, and ultimately reject, the claim
that the political objectives of deterrence jus-
tify threats to use nuclear weapons. None-
theless, acknowledging the political problems
that deterrence attempts to address, the au-
thor prescribes the adoption of a legal regime
which would minimize and potentially elim-
inate reliance on threatened use of nuclear
weapons as a means of conflict resolution.

L’aspect juridique de Ia guerre nucl~aire
constitue depuis plusieurs ann6es un sujet
d’intrt particulier pour les juristes de droit
international. Des 6rudits remarquables qui
ont reconnu que la guerre nucl6aire violait
des obligations en droit international doivent
d6sormais faire face fA deux arguments im-
portants: (1) l’amorce de la guerre nu-
cl6aire impliquant des attaques contre les
installations militaires qui utilisent des armes
nucl6aires s6lectionn6es, ou des attaques
nucl6aires comme mesures de repr6sailles
seraient 16gales ; et (2) sans se soucier de
l’aspectjuridique de la guerre nucl6aire, la
possession et la menace d’utilisation d’armes
nucl6aires dans le but de dissuader sont n6-
cessairement 16gales. Apr~s avoir identifi6
et examin6 la pertinence des r~gles de droit
applicables aux politiques de dissuasion,
l’auteur les place dans differentes situations
ofi les strat6gies de dissuasion contempo-
raines envisagent l’utilisation d’armes nu-
clfaires, et conclut que celle-ci serait illgale
dans chaque cas. Poursuivant son analyse,
il 6tudie et rejette l’argument que les ob-
jectifs politiques de dissuasion justifient les
menaces d’utilisation d’armes nucl6aires.
Tout en reconnaissant les problmes poli-
tiques auxquels la dissuasion fait face, l’au-
teur propose l’adoption d’un systdme
juridique qui d iminuerait et 61iminerait la
confiance mise dans l’utilisation mena-
gante d’armes nucl~aires comme moyen de
rfsolution de conflits.

*LL. B. (Osgoode); Executive Director, Lawyers’ Committee on Nuclear Policy, New York.
The author wishes to express his appreciation to Sherle Schwenninger and Chin Choon Fong
of the World Policy Institute for their suggestions and support in the preparation of this article.
Of course, the author alone assumes responsibility for the final product.

@McGill Law Journal 1984
Revue de droit de McGill

McGILL LAW JOURNAL

[Vol. 30

Synopsis

Introduction
I. The Humanitarian Law of Armed Conflict

A. The Law
B. Modern-Day Relevance of the Law

II. The Conduct of Nuclear War

A. Attributes or Context?
B. Nuclear Exchange: Some Contextual Possibilities

1. Assured Destruction
2. Limited Nuclear War

M. The Threatened Use of Nuclear Weapons: Addressing the “Paradox of

Deterrence”

IV. Implications for Defense Planning: Toward a Legal Regime for Nuclear

Weapons
A. The Short Term: A Minimal and Stable Deterrence
B. The Long Term

1. Ballistic Missile Defense?
2. Overcoming Nuclear Deterrence

Conclusion

Introduction

Having caused the death of hundreds of thousands of civilians and a
lifetime of suffering for countless others, the atomic bombings of Hiroshima
and Nagasaki must be regarded as perhaps the most terrifying acts of war
in modem history. Ironically, however, the nuclear bomb’s debut was also
regarded as an effective means of finally bringing an end to the consuming
horrors of a long and devastating global conflict. Indeed, upon receiving the
news of the dropping of “Little Boy” on Hiroshima, President Truman

1984]

CONTEMPORARY DETERRENCE STRATEGIES

himself exclaimed: “This is the greatest day in history!”‘ Unhappily, the
initial perception of nuclear weapons as “lifesaving” constituted only the
first in a series of psychological inhibitions which continue to obscure the
fundamental challenge which nuclear weapons present to the global legal
order.

The post-war Nazi war crimes tribunals at Nuremberg provided a prom-
ising reaffirmation of the basic norms of armed conflict. And indeed, in
recognizing crimes against humanity, and even in assigning individual li-
ability to those responsible for their perpetration, the Nuremberg judge-
ments might have inspired concerned jurists and government leaders to
condemn the use of nuclear weapons, and perhaps to ban them altogether.
Almost before the ink on the Nuremberg judgements had dried, however,
and certainly before the jurists of international law could effectively pub-
licize their potential relevance to nuclear weapons, a series of important
events helped to perpetuate the legal silence.2 The almost immediate break-
up of wartime alliances, the resulting polarization of the world’s dominant
post-war powers, and the Soviet Union’s acquisition of the atom’s “magic”
in 1949, placed nuclear weapons at the center of the emerging world order.
Before long, the victors of World War II found themselves locked into a
deadly “balance of terror”, each relying on the threat of nuclear annihilation
to deter the other from interfering with its security and well-being. If the
tone of political rhetoric vacillated during the following decades, one as-
sumption seemed beyond question throughout: no matter how disastrous
their use might be, nuclear weapons would forever be integral to the security
of both powers, since the nature of deterrence was such that the country
which so much as wavered in its nuclear resolve would immediately make
itself vulnerable to nuclear blackmail by the other. In these circumstances,
it is not suprising that consideration of the legality of nuclear weapons
policies was not a priority on the post-war agenda.

Nevertheless, in the 1980’s, the combination of increasing public aware-
ness about the likely consequences of nuclear war and sometimes ill-con-
sidered pronouncements by government leaders about plans to “fight and

‘Cited in P. Wyden, Day One: Before and After Hiroshima (1984) at 289. For a legal and
historical analysis of the World War II decision to use the atomic bomb, see J. Paust, “The
Nuclear Decision in World War II – Truman’s Ending and Avoidance of War” (1974) 8 Int’l
Law. 160.

2Among the earliest exceptions to the legal silence are J.M. Spaight, The Atomic Problem
(1948); A.N. Sack, “ABC – Atomic, Biological, Chemical Warfare in International Law” (1950)
10 Law. Guild Rev. 16 1. See, however, E.C. Stowell, “The Laws of War and the Atomic Bomb”
(f 945) Am. J. Int’l L. 784. Stowell encourages the development of nuclear weapons to prevent
aggression, to secure cooperation and for use as a defense “when necessary”. Later exceptions
include: N. Singh, Nuclear Weapons and International Law (1959); G. Schwarzenberger, The
Legality of Nuclear Weapons (1958); and I. Brownlie, “Some Legal Aspects of the Use of
Nuclear Weapons” (1965) 14 Int’l & Comp. L.Q. 437.

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[Vol. 30

win” has produced unprecedented questioning of the political viability, 3 the
morality,4 and the legality of modem nuclear strategies. The contribution
of distinguished scholars of international law to the ensuing debates has
been far-reaching. These scholars have argued that by drawing into question
the centuries-long struggle to bring measures of restraint and accountability
to the conduct of war,5 governments which rely on nuclear weapons are
undermining both the fragile authority of international law and, by exten-
sion, any semblance of reliable world order.

Their view is, however, frequently and vociferously opposed by two
groups: those who deny entirely the relevance of the law of armed conflict
to nuclear weapons; and those who argue that, in the absence of express
treaty provisions, a weapon is not prohibited by international law and the
effect of its use must therefore be considered in specific wartime contexts.
In both cases, apologists for nuclear weapons are quick to point out that
reliance on peacetime threats is intended to deter or dissuade aggression for
the ultimate purpose of averting nuclear war. Thus, while some concede
that the use of nuclear weapons might be unlawful in some or perhaps most
circumstances, peacetime possession and threatened use are regarded as
being unconditionally legal.

Conspicuously absent from the legal debate has been a more precise
consideration of the nature of modem nuclear deterrence –
an articulation
of the political and military purposes for which nuclear weapons are relied
upon. Are these weapons designed solely for deterrence and therefore re-
taliation in the event of nuclear attack? If not, would their use in other
specific contexts be consistent with international law? Further, and most
importantly, if the use of nuclear weapons would be unlawful, how does
the law address the so-called “paradox of deterrence” –
the political reality
that the threatened use of nuclear weapons is regarded as necessary to dis-
suade comparable use by the adversary? Must peacetime nuclear threats be

3See, e.g., M. Bundy et aL, “Nuclear Weapons and the Atlantic Alliance” (1982) 60 Foreign
Affairs 754. More recently, see J. Sanders, “Security and Choice” (1984) 1 World Policy J. 677.
4See National Conference of Catholic Bishops, “The Challenge of Peace: God’s Promise and

Our Response” (1983) 12 Origins I [hereinafter The Pastoral Letter].

5R. Falk, L. Meyrowitz & J. Sanderson, “Nuclear Weapons and International Law” (1980)
20 Indian J. Int’l L. 541; C.H. Builder & M.H. Graubard, The International Law ofArmed
Conflict: Implicationsfor the Concept ofAssuredDestruction (1982); J.H.E. Fried, “International
Law Prohibits the First Use of Nuclear Weapons” (1981-82) 16 Rev. beige dr. int. 33; K. Fujita,
“First Use of Nuclear Weapons: Nuclear Strategy vs. International Law” [1982] Kansai U.
Rev. L. & Pol. 57; B. Weston, “Nuclear Weapons Versus International Law: A Contextual
Reassessment” (1983) 28 McGill L.J. 542; W.G. Lee, “The United States’ Nuclear First Strike
Position: A Legal Appraisal of its Ramifications” (1977) 7 Calif. W. Int’l L.J. 508. See also D.
Margolick, “Law Panel Sees Atom Arms as Illegal”, The New York Times (7 June 1982) B 2;
Lawyers’ Committee on Nuclear Policy, Statement on the Illegality of Nuclear Warfare (1981).

1984]

CONTEMPORARY DETERRENCE STRATEGIES

93

unconditionally accepted, or is there a more effective manner of reconciling
legal norms regulating the use and threatened use of force with the realities
of a world of sovereign states where nuclear weapons cannot be disinvented?
This article will attempt to address each of these important questions.
In Part I, the continuing relevance of the humanitarian law of armed conflict
in the nuclear age will be reconsidered. The legality of nuclear warfare will,
in Part II, be assessed in the context of the specific targeting and combat
strategies in which current nuclear forces are designed to operate. Particular
attention will be given to recent trends which feature the development of
increasingly precise, less destructive “mini” nuclear weapons designed to
enhance the credibility of threats to escalate conventional war across the
nuclear threshold. The question to be addressed here is whether such de-
velopments make nuclear policies more responsive to the concerns of in-
ternational law. Part III will consider the status of threats to use nuclear
weapons in light of the claimed justification of “deterrence” and the prin-
ciples of law regulating the threatened use of force. Finally, Part IV will
distill the conclusions of the preceding analysis and will suggest some initial
steps which must be taken to bring current nuclear policies and capabilities
more into line with the requirements of international law.

I. The Humanitarian Law of Armed Conflict

A. The Law

The substantive laws of armed conflict are ancient in origin. They flow
from the basic principle that the ravages of war ought to be mitigated as
much as possible in order to recognize and protect the value of human life.
As such, the laws of war represent fundamental standards of civilized con-
duct which must be observed as a means of limiting the scope of hostilities
between states.6

The laws of war have evolved through the customary practice of states
in conflict and through formal agreements which include the Hague Con-
ventions of 1899 and 1907, the Geneva Conventions of 1929 and 1949, and
the 1977 Protocol to the Geneva Conventions. These sources express general

6See W.T. Mallison, Jr, “The Laws of War and the Juridical Control of Weapons of Mass
Deterioration in General and Limited Wars” (1967) 36 Geo. Wash. L. Rev. 308 at 322; A.
Roberts & R. Guelff, eds, Documents on the Laws of War (1982); M.S. McDougal & F.P.
Feliciano, Law and Minimum World Public Order: The Legal Regulation of International
Coercion (1961); A. Cassese, ed., The New Humanitarian Law of Armed Conflict (1979); L.
Oppenheim, International Law: A Treatise, 8th ed. by H. Lauterpacht (1967). The historical
development of the law of war is chronicled in M. Howard, ed., Restraints on War (1979) and
G. Best, Humanity in Warfare: The Modern History ofthe International Law ofArmed Conflict
(1980).

McGILL LAW JOURNAL

[Vol. 30

norms of conduct but do not indicate specific enforcement mechanisms or
sanctions in case of violation. They have, however, been incorporated into
the domestic law of the major powers by constitutional mandate, 7 as well
as by numerous official documents and ordinances, including military manuals8
and judicial decisions. 9

Two fundamental legal principles lie at the base of the modem law of
war the principles of humanity and military necessity. The principle of
military necessity provides that, subject to the principle of humanity, a
belligerent is justified in applying the degree of force required to achieve
complete submission of the enemy “with the least possible expenditure of
time, life and physical resources”. 10 The principle of humanity complements
the principle of necessity by prohibiting “the employment of any kind of
force not necessary for the purpose of war, that is, for the partial or complete
submission of the enemy with the least possible expenditure of time, life
and physical resources”.” Thus, the principle of necessity dictates when the
use of force is acceptable, while the principle of humanity limits how much
force may justifiably be employed to pursue a legitimate military objective.
Given the relatively recent introduction of nuclear weapons, it is not
suprising that there are few treaties or conventions which specifically address
the threatened or actual use of nuclear weapons.’ 2 There are, however, a

7See, e.g., article 6 of the U.S. Constitution which provides, inter alia, that “[all treaties
made, or which shall be made, under the Authority of the United States shall be the supreme
law of the land”. The Constitution of the United States ofAmerica, reprinted in G. Gunther,
Cases and Materials on Constitutional Law, 10th ed. (1980) Appendix B.

8See, e.g., United States Department of the Air Force, International Law – The Conduct
of Armed Conflict and Air Operations (1976) at 6-17 n. 18 (A.F.P. 110-31); United States
Department of the Navy, Law of Naval Warfare (1955) art. 613 n. 1, reprinted in R. Tucker,
The Laws of War and Neutrality (1955).

91n TheShimoda Case(1963), reprinted in [1964] Jap. Ann. Int’l L. 212 (English translation),
the Tokyo District Court held the nuclear bombings of Hiroshima and Nagasaki to be in
violation of international law on the grounds, inter alia, that: (1) the bombings were indis-
criminate and against undefended cities; (2) the bombings were not justifiable as military
necessity; (3) the cities were not military targets; and (4) the bombs caused more suffering than
weapons conventionally outlawed for producing unnecessarily cruel and poisonous forms of
suffering.

‘0McDougal & Feliciano, supra, note 6 at 523.
“Ibid. at 529-30.
12Exceptions include Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Outer
Space and Under Water, 14 U.S.T. 1313, T.I.A.S. 5433, 480 U.N.T.S. 43 (signed 5 August
1963; entered into force 10 October 1963; ratified by I10 states as of 31 December 1982);
Antarctic Treaty, 12 U.S.T. 794, T.I.A.S. 4780,402 U.N.T.S. 71, arts I and V (signed 1 December
1959; entered into force 23 June 1961; ratified by 26 states as of 31 December 1982); Treaty
for the Prohibition ofNuclear Weapons in Latin America, 634 U.N.T.S. 281 (signed 14 February
1967; entered into force for 24 states on 31 December 1982); Treaty on Principles Governing
the Activities of States in the Exploration and Use of Outer Space, Including the Moon and
Other Celestial Bodies 18 U.S.T. 2410, T.I.A.S. 6347, 610 U.N.T.S. 205, art. IV (signed 27

1984]

CONTEMPORARY DETERRENCE STRATEGIES

number of conventions which, for the most part, were formulated prior to
the advent of nuclear weapons but which still might be relevant. Professor
Bums Weston has summarized the principles embodied in these conven-
tions into six “core rules”, each involving a balancing of the customary
principles of humanity and military necessity) 3

Rule 1: It is prohibited to use weapons or tactics that cause unnecessary or
aggravated devastation and suffering.

The Declaration of St Petersburg14 of 1868 first embodied this rule,
stating in the Preamble that “the only legitimate object which states should
endeavor to accomplish during war is to weaken the military forces of the
enemy” and that “this object would be exceeded by the employment of arms
which uselessly aggravate the sufferings of disabled men, or render their
death inevitable”. The principle was affirmed in the Regulations annexed
to the Hague Convention [No. IV] Respecting the Laws and Customs of
War on Land.’5 Specifically, article 23 provides that “it is especially for-
bidden: …. (b) To kill or wound treacherously individuals belonging to the
hostile nation or army; … (e) To employ arms, projectiles, or material
calculated to cause unnecessary suffering; … [and] (g) To destroy or seize
the enemy’s property, unless such destruction or seizure be imperatively
demanded by the necessities of war”.16

Rule 2: It is prohibited to use weapons or tactics that cause indiscriminate
harm as between combatants and noncombatant military and civilian personnel.

January 1967; entered into force 10 October 1967; ratified by 81 states as of 31 December
1982); Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons
of Mass Destruction on the Seabed and the Ocean Floor and in the Subsoil Thereof23 U.S.T.
701, T.I.A.S. 7337 (signed 11 February 1971; entered into force for 70 states on 31 December
1982).

13These six rules are set out and discussed in detail in Weston, supra, note 5 at 553-60.
“4Declaration Renouncing the Use of Certain Explosive Projectiles, 11 December 1868, re-
printed in L. Friedman, ed., The Law of War: A Documentary History, vol. 1 (1972) at 192-
3 [hereinafter Declaration of St Petersburg].

151907 Hague Regulations Respecting the Laws and Customs of War on Land [hereinafter
1907 Hague Regulations], Annex to the 1907 Hague Convention [No. IV] Respecting the Laws
and Customs of War on Land, 18 October 1907, 36 Stat. 2277, reprinted in Friedman, supra,
note 14 at 308-23. These regulations are referred to in the most recent official publication of
the U.S. Air Force relating to the law of war as the “foundation stones of the modem law of
armed conflict”. United States Department of the Air Force, supra, note 8.

16Similar language is used in the Declaration of Brussels, 27 August 1874, arts 12-3, reprinted
in Friedman, supra, note 14 at 194-203. See also Resolution on Basic Principles for the Protection
of Civilian Populations in Armed Conflict, United Nations G.A. Res. 2675, 25 U.N. GAOR,
Supp. (No. 28) 76, U.N. Doc. A/8028 (1970); International Committee of the Red Cross,
Fundamental Rules of International Humanitarian Law Applicable in Armed Conflicts (1978)
206 Int’l Rev. Red Cross 248 at 249 (Rule 6).

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This rule has often been referred to as “the principle most fundamental
in character” in the development of the modem law of war. 17 Like Rule 1,
it was first codified in the stipulation found in the Preamble to the Decla-
ration of St Petersburg referred to above.Is By shielding civilians from the
horror of combat, this provision first recognized the principle that weapons
must be employed selectively. Later, the combatant/noncombatant distinc-
tion became an essential part of the Hague Draft Rules of Aerial Warfare,’ 9
the 1949 Geneva Conventions20 and, most recently, the 1977 Protocol to the
Geneva Conventions,21 section 48 of which states:

In order to ensure respect for and protection of the civilian population and
civilian objects, the Parties to the conflict shall at all times distinguish between
the civilian population and combatants and between civilian objects and mil-
itary objectives and accordingly shall direct their operations against military
objectives.

22

Some commentators have questioned the validity of this rule, arguing
that the nature of modem “total war” is such that it is now impossible to
maintain the distinction between combatants and noncombatants. 23 This
argument was rejected, however, by the International Military Tribunal at
Nuremberg which declared, in article 6(c) of the Nuremberg Charter, that
the elimination of all or part of a civilian population is a “crime against
humanity”. 24 Moreover, while the balance of doubt might often be resolved
in favour of military necessity rather than the principle of humanity, to
legitimize deliberate “terror bombardment” carried out for the purpose of
destroying enemy morale would effectively undermine any attempts to place
legal limits on the exercise of violence in war.25

17See, e.g., Trustees of the John Bassett Moore Fund, eds, The Collected Papers of John

Bassett Moore, vol. 6 (1944) at 153.

IsSupra, note 14.
19Hague Draft Rules of Aerial Warfare, reprinted in (1923) 17 Am. J. Int’l L. 245 (Supp.).
20Geneva Conventions, 12 August 1949, 6 U.S.T. 3114, T.I.A.S. 3362, 75 U.N.T.S. 31, re-

printed in Friedman, supra, note 14 at 525-691.

2 1Geneva Protocol I Additional Relating to the Protection of Victims of International Armed
Conflicts, U.N. Doe. A/32/144, Annex I, reprinted in (1977) 16 I.L.M. 1391 (adopted 12
December 1977; entered into force on 7 December 1978) [hereinafter 1977 Geneva Protocol
I Additional].
22Similarly, see 1907 Hague Regulations, supra, note 15, arts 25 and 27; Resolution on Basic
Principles for the Protecton of Civilian Populations in Armed Conflicts, supra, note 16; Geneva
Convention [No. IV] Relative to the Protection of Civilian Persons in Time of War, 12 August
1969, reprinted in Friedman, supra, note 14 at 641-91.
23L. Nurick, “The Distinction Between Combatant and Noncombatant in the Law of War”

(1945) 39 Am. J. Int’l L. 680.

24Charter of the International Military Tribunal, 6 October 1945, 59 Stat. 1555, E.A.S. No.
25See McDougal & Feliciano, supra, note 6 at 658; H. Lauterpacht, “The Problem of the

272, art. 6(c).

Revision of the Law of War” (1952) 29 Brit Y.B. Int’l L. 360 at 369.

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CONTEMPORARY DETERRENCE STRATEGIES

Rule 3: It is prohibited to use weapons or tactics that cause widespread, long-
term and severe damage to the natural environment.

This rule was added to the laws of war by the 1977 Geneva Protocol
I Additional. 26 While the Protocol’s status remains questionable due to the
failure of certain major powers to ratify it, our increasing awareness of the
ecological impact of nuclear exchange27, and multi-national expressions of
“common concern” for the environment28 form the basis of what must be
regarded as a quickening principle of binding customary law.

Rule 4: It is prohibited to effect reprisals that are disproportionate to their
antecedent provocations or to legitimate military objectives, or disrespectful
of persons, institutions, or resources otherwise protected by the laws of war.

International law does recognize the right of reprisal against an adver-
sary who has violated the law of war. However, that right is not unlimited.
Reprisals may not be undertaken for punitive or vengeful purposes; rather,
their only legitimate purpose is to secure observance of the laws of war by
an enemy who has violated them. Such reprisals must be in response to
grave and manifestly unlawful acts, and must be proportionate to the orig-
inal violation. Furthermore, reprisals must in all other respects be carried
out in observance of international law. Reprisals which are extreme in re-
lation to their provocation or which lack a reasonable connection with the
securing of legitimate military objectives are contrary to the United Nations
Charter (articles 20, 51, 53, and 55) as well as to international law in general.
Finally, reprisals must be directed at the cobelligerent state with no adverse
impact on the neutral jurisdiction of nonparticipating nations and must
otherwise comply with the rules of discrimination: reprisals directed against
civilian populations, against wounded and sick military or civilian person-
nel, medical personnel, cultural property, places of worship and installations

26Article 35(3) of the 1977 Geneva Protocol I Additional, supra, note 21, states: “It is pro-
hibited to employ methods or means of warfare which are intended, or may be expected, to
cause widespread, long-term and severe damage to the natural environment.”
27See, e.g., C. Sagan, “Nuclear War and Climatic Catastrophe” (1984) 62 Foreign Affairs

257.

28See, e.g., Principle 16 of the Stockholm Declaration of the United Nations Conference on
the Human Environment in Report of the United Nations Conference on the Human Environ-
ment, U.N. Doc. A/CONE. 48/14, and Corr. 1, reprinted in (1972) 11 I.L.M. 1415, which
states: “Man and his environment must be spared the effects of nuclear weapons and all other
means of mass destruction. States must strive to reach prompt agreement… on the elimination
and complete destruction of such weapons.”

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[Vol. 30

containing dangerous forces (such as dykes, dams and nuclear power gen-
erators), are prohibited. 29

Rule 5: It is prohibited to use weapons or tactics that violate the neutral
jurisdiction of nonparticipating states.30

Two elements of this rule are especially important: “the claim that
belligerents have no warrant to carry out their hostilities into the territory
of a nonparticipating State, and the accompanying claim that nonpartic-
pating States have the right to exclude the entry of belligerent forces into
their territory”. 3′ This rule is critical in an assessment of the legality of
nuclear warfare to the extent that the effects of nuclear weapons – partic-
ularly the effects of nuclear fallout transmitted by wind –
cannot be con-
fined to any precise territorial boundaries. 32

Rule 6: It is prohibited to use asphyxiating, poisonous or other gases, and
all analagous liquids, materials or devices, including bacteriological methods
of warfare.

This rule derives principally from the Geneva Gas ProtocoP3 which

states the following:

Whereas the use in war of asphyxiating, poisonous or other gases, and of
all analogous liquids, materials or devices, has been justly condemned by the
general opinion of the civilised world; and

29See Hague Convention for the Protection of Cultural Property in the Event ofArmed Conflict,
14 May 1954, 249 U.N.T.S. 240, art. 4(4), reprinted in Roberts & Guelff, supra, note 6 at 39;
Geneva Convention [No. IV] Relative to the Protection of Civilian Persons in Time of War, 12
August 1949, 6 U.S.T. 3516, T.I.A.S. 3365, 75 U.N.T.S. 287, art. 33, reprinted in Friedman,
supra, note 14 at 641-91; Geneva Convention [No. III] Relative to the Treatment of Prisoners
of War, 12 August 1949, 6 U.S.T. 3316, T.I.A.S. 3364, 75 U.N.T.S. 135, art. 13, reprinted in
Friedman, ibid. at 598-640; Geneva Convention [No. II] for the Amelioration of the Condition
of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, 12 August 1949, 6
U.S.T. 3217, T.I.A.S. 3363, 75 U.N.T.S. 85, art. 47, reprinted in Friedman, ibid. at 570-88;
Geneva Convention [No. I] for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field, 12 August 1949, 6 U.S.T. 3114, T.I.A.S. 3362, 75 U.N.T.S. 31,
reprinted in Friedman, ibid. at 525-69.

30See Hague Convention [No. V] Respecting the Rights and Duties ofNeutral Powers in Case
of War on Land, 18 October 1907, 36 Stat. 2310, T.S. No. 540, 1 Bevans 654, arts 1, 2, 3, 4
and 10, reprinted in Friedman, supra, note 14 at 324-31; Hague Convention [No. XIII] Con-
cerning the Rights and Duties of Neutral Powers in Naval Wars, 18 October 1907, arts I and
2, reprinted Friedman, ibid. at 385-94.

3’Weston, supra, note 5 at 559.
32See Singh, supra, note 2 at 106.
33Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases,
and of Bacteriological Methods of Warfare, 17 June 1925, 26 U.S.T. 575, T.I.A.S. 8061, 94
L.N.T.S. 65, reprinted in Friedman, supra, note 14 at 454-6 [hereinafter Geneva Gas Protocol].

1984]

CONTEMPORARY DETERRENCE STRATEGIES

Whereas the prohibition of such use has been declared in Treaties to which

the majority of Powers of the world are Parties; and

To the end that this prohibition shall be universally accepted as part of

International Law, binding alike the conscience and the practice of nations:

Declare;

That the High Contracting Parties …

accept this prohibition, agree to
extend this prohibition to the use of bacteriological methods of warfare and
agree to be bound as between themselves according to the terms of this declaration.

This Protocol is framed in such comprehensive terms that, standing
alone, it would likely prohibit the use of virtually every weapon whose effects
are similar to those of poison gas, including nuclear weapons, given that
the radiation released would tend to produce similar internal effects. 34 Of
course, the precise applicability of this rule to a nuclear detonation would
necessarily depend on the size and nature of the weapon and the yield of
radiation. It is clear, however, that a “normal” nuclear blast would emit
sufficient radiation to create injurious effects analogous to those caused by
the deliberate emission of poison into the environment.

B. Modern-Day Relevance of the Law

Several arguments have been advanced to deny the applicability of these
principles to nuclear weapons. Similar in their approaches, these arguments
tend to focus on the particular wording of the various treaties and conven-
tions, and on the historic context in which they were negotiated.

A commonly cited argument postulates that, because nuclear weapons
were unknown to military strategy prior to 1945, existing positive law could
not contemplate them and is therefore inapplicable. This argument was
specifically rejected by the Japanese District Court in The Shimoda Case,
the one instance in which this question has been directly addressed in a
court of law. In The Shimoda Case, the court decided that existing positive
law could provide relevant standards for the assessment of the legality of
the nuclear attacks on Hiroshima and Nagasaki:

It is right and proper that any weapon contrary to the custom of civilized
countries and to the principles of international law should be prohibited even
if there is no express provision in the laws and regulations. Only where there
is no provision in the statutory law, and as long as a new weapon is not contrary
to the principles of international law, can a new weapon be used as a legal
means of hostility. … Therefore, we cannot regard a weapon as legal only

34See Singh, supra, note 2 at 156-60. See also Schwarzenberger, supra, note 2; The Shimoda

Case, supra, note 9.

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because it is a new weapon, and it is still right that a new weapon must be
exposed to the examinations of positive international law. 35

Another argument relates to the binding force of the law to the extent
that it is found in the 1977 Geneva Protocol I Additional, since the Protocol
remains unratified by the nuclear weapon states. Moreover, it is pointed
out that all of the nuclear weapon states (with the exception of China), and
other states and nongovernmental organizations, have established “under-
standings” that the rules relevant to the use of weapons established by the
Protocol apply to conventional weapons and are not intended to regulate
or prohibit the use of nuclear weapons. 36

The actual relevance of these “understandings” and failures to ratify
is, however, by no means conclusive. While it is true that, with the exception
of India, none of the sixty-four countries that have ratified the Protocol
have objected to the understandings, few of those states have specifically
expressed agreement. With respect to ratification, it has been argued that,
in view of instruments such as the 1972 Stockholm Declaration on the
Human Environtnent and the 1978 Red Cross Fundamental Rules of In-
ternational Humanitarian Law Applicable in Armed Conflicts, the Protocol’s
environmental and civilian population protection provisions may be viewed
as declaratory of emerging customary law and, accordingly, remain unaf-
fected by non-ratification. 37 In addition, the Vienna Convention on the Law
of Treaties38 obliges countries which have signed but not yet ratified a treaty
to refrain from carrying out acts which would undermine the treaty’s object
and purposes.

With respect to the Hague and Geneva Conventions, a “conservative”
approach to treaty interpretation has been proposed. 39 It is argued that the
principles embodied in these conventions should be limited to respond to
the specific circumstances which the negotiations sought to address. For
example, prohibitions such as those found in article 23(3) of the 1907 Hague
Convention forbidding the use of weapons “calculated to cause superfluous
injury” should be confined to the narrow circumstance in which a wounded
victim of combat would be caused further suffering, without a military
purpose being advanced in justification. These conventions, it is argued,

35The Shimoda Case, ibid. at 327.
36E.L. Meyrowitz, Remarks (1981) 75 Proc. Am. Soc. Int’l L. 214.
37Weston, supra, note 5 at 567.
38Vienna Convention on the Law of Treaties, U.N. Doc. A/CONF. 39/27 at 289, reprinted
in (1969) 8 I.L.M. 679 (opened for signature 23 May 1969; entered into force 27 January 1980).
39See, e.g., R.E. Lisle, Remarks (1983) 9 Brooklyn J. Int’l L. 275; E. Cummings, Remarks

(1983) 9 Brooklyn J. Int’l L. 269.

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CONTEMPORARY DETERRENCE STRATEGIES

101

were not intended to prohibit the use of weapons because of their effects;
instead they were “modestly intended to reduce the inhumanity and bar-
barity of war when militarily possible”. 40

However, by confining these treaties to their specific prohibitions, these
arguments tend to overlook the more fundamental purposes which the pro-
visions were designed to achieve, namely to prohibit methods of warfare
which cause unnecessary suffering or indiscriminate harm. The “purposive
-dimension”41 of the law is precisely what unites the various individual
prohibitions into a cogent and uniform code of civilized conduct without
which the destructiveness of war would know no bounds. Furthermore, such
interpretations give rise to troubling anomalies. How, for example, could
restrictions on the use of comparatively inconsequential weapons such as
“dum-dum bullets” be taken seriously when use of the most destructive
weapon of all time is assumed to be lawful? As Professor Fried points out:
“It is scurrilous to argue that it is stillforbidden to kill a single enemy civilian
with a bayonet, or wantonly to destroy a single building on enemy territory
by machine-gun fire – but that it is legitimate to kill millions of enemy
noncombatants and wantonly to destroy entire enemy cities, regions and
perhaps countries … by nuclear weapons.”’42

A similar argument denies altogether the relevance of the customary
law of war to nuclear weapons. This traditional view. is based on the holding
in The Case of the S.S. “Lotus”43 wherein it was stated that the “rules of
law binding upon States … emanate from their own free will as expressed
in conventions or by usages generally accepted as expressing principles of
law”. 44 This theory of international law, requiring restrictions on interna-
tional conduct to be consented to by the state in question, forms the basis
of the American position “that there is at present no rule of international
law expressly prohibiting states from the use of nuclear weapons in warfare.
In the absence of any express prohibition, the use of such weapons against
enemy combatants and other military objectives is permitted.” 45

40Cummings, ibid. at 273.
41A. D’Amato, Remarks (1983) 9 Brooklyn J. Int’l L. 311.
42J.H.E. Fried, “First Use of Nuclear Weapons: Existing Prohibitions in International Law”

(1981) 12 Bull. Peace Proposals 21 at 28 [emphasis in original].

43(France v. Turkey) (1927), P.C.I.J., ser. A/No. 10.
441bid. at 18.
45United States Department of the Navy, supra, note 8. It is interesting to contrast this
statement with the more ambiguous one, found in paragraph 35 of the United States Depart-
ment of the Army, The Law ofLand Warfare (1956): “The use of explosive ‘atomic weapons’,
whether by air, sea or land forces, cannot as such be regarded as violative of international law
in the absence of a customary rule of international law or international convention restricting
their employment”[emphasis added].

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This view adopts an overly restricted and somewhat unrealistic ap-
proach to the sources of international law. Whether one emphasizes the
natural content of the law, 46 or the communicative process by which the
law attains juridical identity,47 it is difficult to escape the conclusion that
the application of international law, particularly the law of war, is not limited
to those few situations for which explicit treaty provisions have been drafted. 48

Indeed, support for a broader reading of the law is found in the fourth
Hague Convention of 1907. The “Martens Clause” of the Preamble contains
a general measure intended to address the situation in which no explicit
treaty prohibits a new weapon or tactic. It provides:

Until a more complete code of the laws of war has been issued, … in
cases not included in the Regulations adopted by them, the inhabitants and
the belligerents remain under the protection and the rule of the principles of
the law of nations, as they result from the usages established among civilized
peoples, from the laws of humanity, and the dictates of the public conscience.49

Similarly, the International Military Tribunal at Nuremberg stated:

The law of war is to be found not only in treaties, but in the customs and
practices of states which gradually obtained universal recognition, and from
the general principles of justice applied by jurists and practiced by military
courts.

50

This view, of course, corresponds with the sources of valid international
law referred to in article 38 of the Statute of the International Court of

Community (1982) at 83.

46A. D’Amato, “What ‘Counts’ as Law?” in N.G. Onuf, ed., Law-Making in the Global
47M.S. McDougal & W.M. Reisman, “The Prescribing Function in the World Constitutive
Process: How International Law Is Made” (1980) 6 Yale Stud. World Pub. Ord. 249. In Law
and Minimum World Public Order: The Legal Regulation of International Coercion, supra,
note 6 at 53, McDougal & Feliciano describe the reciprocity expected between states which
share a common interest in the application of the law of war.

The common interest which sustains the law of war is the interest of all participants
in economy in the use of force –
in the minimization of the unnecesary destruction
of values. Unnecessary destruction of values constitutes uneconomical use of force
not only because it involves, by definition, a dissipation of base values which yields
no military advantage; it will also, by operation of the condition of reciprocity,
result in the offending belligerent sustaining a positive disadvantage in the form of
at least an equal amount of destruction of its own values.

48Examples of the same conclusion, arrived at with slightly differing emphasis on each of
these approaches to the questions of “what counts as law”, may be found in E.L. Meyrowitz,
“The Laws of War and Nuclear Weapons” (1983) 9 Brooklyn J. Int’l L. 227 and Weston, supra,
note 5.

49Supra, note 15 at 309.
50Trial of the Major War Criminals Before the International Military Tribunal, vol. 22 (1948)

at 464.

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CONTEMPORARY DETERRENCE STRATEGIES

103

Justice. Finally, in The Shimoda Case, the Japanese District Court explicitly
addressed this point and concluded:

[I]t is right that use of a new weapon is legal, as long as international law
does not prohibit it. However, the prohibition in this case is understood to
include not only the case where there is an express provision of direct pro-
hibition but also the case where it is necessarily regarded that the use of a new
weapon is prohibited, from the interpretation and analogical application of
existing international laws and regulations. Further, we must understand that
the prohibition includes also the case where, in light of principles of interna-
tional law which are the basis of the above-mentioned positive international
law and regulations, the use of a new weapon is admitted to be contrary to
the principles. For there .is no reason why the interpretation of international
law must be limited to grammatical interpretation any more than in the inter-
pretation of domestic law.5′

Another argument, recently advanced by Eugene kostows2 in defense
of the legality of nuclear weapons policies, posits that the “authoritative”
practice of states in accumulating and threatening to use nuclear weapons
has crystallized so as to be recognized and accepted in customary interna-
tional law. But this is an extremely statist view of international law which
begs the central questions of whether general principles of international law
place imperative boundaries on the legitimacy of political acts, or whether,
in fact, international law amounts to no more than what any given state
administration decrees it to be at any point in time. The argument fun-
damentally ignores the concept of law as an enterprise tailored toward the
realization of certain basic, politically immutable values. Such values in-
clude the sanctity of human life and the principle of minimizing losses and
suffering in armed conflict which constitute the basis of the entire law of
war. If advances in weapons technology have rendered past discussions of
limiting the effects of war irrelevant, the modern weapons must cede to the
principles of law, not the reverse. To suggest otherwise is tantamount to
undermining one of the most basic cornerstones of law in our geopolitical
system.

Even if Rostow’s statist view is correct, there is ample evidence of
“authority signals”5 3 which affirm, rather than contradict, the view that
states perceive themselves as customarily bound by the laws of war as they

51The Shimoda Case, supra, note 9 at 235.
52E.V. Rostow, Remarks (1982) 76 Proc. Am. Soc. Int’l L. 25.
53McDougal & Reisman, supra, note 47.

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would be applied to nuclear weapons. Most important is United Nations
Resolution 1653 of 196154 which states:

(a) The use of nuclear and thermonuclear weapons is contrary to the spirit,
letter and aims of the United Nations, and, as such, a direct violation of
the Charter of the United Nations;

(b) The use of nuclear and thermonuclear weapons would exceed the scope of
war and cause indiscriminate suffering and destruction to mankind and
civilization and, as such, is contrary to the rules of international law and
to the laws of humanity;

(c) The use of nuclear and thermonuclear weapons is a war directed not against
an enemy or enemies alone but also against mankind in general, since the
people of the world not involved in such a war will be subjected to all the
evils generated by the use of such weapons;

(d) Any state using nuclear and thermonuclear weapons is to be considered
as violating the Charter of the United Nations, as acting contrary to the
laws and humanity and as committing a crime against mankind and civ-
ilization ….

Although resolutions of the United Nations do not themselves, without
further evidence of state practice, constitute binding international law, such
declarations must be regarded as evidence of a consensus which considers
the laws of war as far from outmoded or inapplicable to nuclear weapons.”5

Moreover, in recent years, leading policy makers have reaffirmed the
tradition ofjus in bello by citing it to criticize strategies of deterrence based
exclusively on threats of assured societal destruction. Former Secretary of

54Declaration on the Prohibition of the Use ofNuclear and Thermo-Nuclear Weapons, United
Nations G.A. Res. 1653, 16 U.N. GAOR, Supp. (No. 17) 4, U.N. Doc. A/5100 (1961), re-
affirmed by wider margins in 1978 and 1980: United Nations G.A. Res. 22/71-B, 33 U.N.
GAOR, Supp. (No. 45) 48, U.N. Doc. 2/33/45 (1978); United Nations G.A. Res. 35/152-0; 35
U.N. GAOR Supp. (No. 48) 69, U.N. Doe. A/35/48 (1980).
55In supporting the adoption of the Resolution on Respect for Human Rights In Armed
Conflicts, United Nations G.A. Res. 2444, 23 U.N. GAOR, Supp. (No. 18) 50 U.N. Doc. A/
7218 (1968), the U.S. representative said the following: “(1) There is a limit to the permissible
means of injuring the enemy, a limit which is inevitably affected by the actions of all parties
to any conflict; (2) Civilian populations may not be attacked as such, but we recognize the co-
location of military targets and civilians may make unavoidable certain injuries to civilians.
Moreover, we should recognize soberly, that none of these principles offers any significant
protection to civilians in the catastrophic event of nuclear war;, (3) There are indeed principles
of law relative to the use of weapons in warfare, and these principles apply as well to the use
of nuclear and similar weapons.” See U.S. Delegation to the General Assembly, Press Release
US-UN 240 (68), 10 December 1969. These statements seem to be an explicit recognition of
the continuing relevance and applicability of the law of war to both conventional and nuclear
weapons.

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CONTEMPORARY DETERRENCE STRATEGIES

Defense James Schlesinger, for example, has alluded to the moral and legal
shortcomings of “assured destruction” in commenting:

Not only must those in power consider the morality of threatening such
terrible retribution on the Soviet people for some ill-defined transgression by
their leaders; in the most practical terms, they must also question the prudence
and plausibility of such a response.5 6

As we shall see below, it is these doubts about the morality and legality
of assured destruction strategies which have given rise to the development
of increasingly flexible nuclear weapons designed for greater versatility and
target selectivity. But whether these changes in doctrine and capabilities
actually bring U.S. nuclear policies more into line with international law,
as is implied by the conclusions of a recent study by the influential RAND
Corporation, 57 remains to be considered below. First, however, the actual
conduct of nuclear warfare as contemplated by existing weapons and stra-
tegies must be assessed against the relevant standards of the law of war.

II. The Conduct of Nuclear War

A. Attributes or Context?

Although it has been argued on occasion that the attributes of nuclear
weapons render them illegal per se,58 the dominant mode of analysis is to
avoid the conclusion that nuclear weapons are necessarily legal or illegal.
Instead, the attributes of a given weapon are considered in the specific
context in which its use is contemplated, balancing “military necessity”
against the predicted effects of its use. In each instance, the contextualists
argue, the illegality depends on whether there is “disproportionate and un-
necessary destruction of values” in light of the military advantage to be
secured.5 9 Questions relevant to an assessment of any particular use of nu-
clear weapons include: (1) can the weapon be delivered accurately to the
target; (2) would its use necessarily result in excessive injury to civilians or
damage to civil objects, so as to qualify as an “indiscriminate weapon”; (3)
would its effects be uncontrollable in space or time so as to cause dispro-
portionate injury to civilians or damage to civilian objects; and (4) would
its use necessarily cause suffering excessive in relation to the military pur-
pose which the weapon serves? 60

See also infra, note 91 and accompanying text.

56Quoted in W.R. Van Cleave & R.W. Barnett, “Strategic Adaptability” (1975) 18 Orbis 655.
57Builder & Graubard, supra, note 5 at xi.
58Singh, supra, note 2; Schwarzenberger, supra, note 2.
59McDougal & Feliciano, supra, note 6 at 663.
6United States Department of the Air Force, supra, note 8 at 6-7.

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The most notable aspect of the contextualists’ approach is that it pro-
vides a more significant role for legal and normative considerations in the
formation of state practice as compared to a rather inflexible prohibition
which, given the centrality of nuclear threats to current global defense plan-
ning, would likely be ignored in the event of a crisis or conflict. However,
the contextual approach may be criticized for its excessive subjectivity in
assuming that an accurate balancing of “military necessity” and “humanity”
could take place under the pressure of conflict when national decision-mak-
ers are left with almost unfettered discretion to decide what is permissible.
Professor Falk has highlighted the lack of consistency inherent in the sub-
jective assessment of “military necessity”:

Those tending to widen the context to include the overall war effort and
those tending to define belligerent objective as including the realization of peace
on an acceptable political and moral basis seem to have a more flexible and
manipulative view of when the use of nuclear weapons is legal than do those
contextualists who limit what is relevant to the ratio between military and
non-military destruction at the scene of the nuclear attack.61

The problems of defining “military necessity” were compounded, earlier in
the nuclear age, by the shortage of reliable evidence about the likely effects
of nuclear explosions. Thus, while in The Shimoda Case the Japanese court
adopted a more conservative definition of context, 62 concluding that the
“total war” claim of military necessity to end the war could not justify
nuclear bombing, the dearth of available information concerning the hy-
pothetical effects of nuclear blasts forced even the contextualists to allow
that perhaps some military necessity might justify using nuclear weapons
“against military objectives which can be destroyed without serious loss of
life or injury to health”. 63 Recent scientific advances have, however, brought
new vitality to the contextual approach by providing more precise evidence
about the likely medical, biological and ecological consequences of nuclear
war in a vastly expanded range of specific circumstances, thus enabling a
more precise balancing of the claim of “military necessity” in a given context
against the intensity and degree of destruction of the values of humanity.
The pertinent questions to be addressed in modem contextual analysis are
whether, in the light of this more reliable scientific information, nuclear
attack might still be justifiable in particular contexts, and, if so, under what
circumstances.

61R. Falk, Legal Order in a Violent World (1968) at 411.
62Ibid.
63L. Oppenheim, International Law:Disputes, War and Neutrality, 8th ed. by H. Lauterpacht

(1967) at 349. See also Lee, supra, note 5.

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CONTEMPORARY DETERRENCE STRATEGIES

B. Nuclear Exchange: Some Contextual Possibilities

The most recent and most comprehensive contextual assessment of the
use of nuclear weapons in light of the humanitarian rules of armed conffict,
has been undertaken by Professor Burns Weston.64 In his study, Professor
Weston applies the six rules set out above65 to “first strike” and “retaliatory”
“strategic” 66 nuclear exchanges, distinguishing in both cases between
“countervalue” 67 and “counterforce” 68 targeting. In addition, the author

64Weston, supra, note 5.
65See supra, Part I(A).
66Strategic nuclear weapons are designed to destroy the homeland military, political and
economic capacity of the adversary. These weapons usually have strike ranges exceeding 3 000
miles, yields up to 20 megatons, and accuracy, measurd in terms of “circular error probable”
[CEP], of 300 to 2 500 metres. See United Nations, Comprehensive Study on Nuclear Weapons:
Report of the Secretary-General, 35 U.N. GAOR, Annex (Provisional Agenda Item 48(b)) ch.
2, U.N. Doc. A/35/392 (1980) table 1, cited in Weston, supra, note 5 at 576 n. 129 [hereinafter
Report of the Secretary General cited to U.N. Doc.].
67″Countervalue targeting” refers to nuclear attacks on the population centers of the adversary.
68″Counterforce targeting” refers to nuclear attacks on the military targets of the adversary,
including some economic and industrial targets deemed “war supporting” or “contributing to
economic recovery”. The U.S. Department of Defense has listed the following targets (see U.S.
Senate Committee on Armed Services, Department of Defense Authorization for Appropriation
for Fiscal Year 1981 (Washington: Government Printing Office, 1980) at 2721):

1. Soviet nuclear forces
Intercontinental and intermediate range ballistic missiles, together with their launch
facilities and launch command centers
Nuclear weapons storage sites
Airfields supporting nuclear capable aircraft
Bases for submarines firing nuclear missiles
2. Conventional military forces
Casernes
Supply’depots
Marshalling points
Conventional airfields
Ammunition storage facilities
Tank and vehicle storage yards
3. Military and political leadership
Command posts
Key communications facilities
4. Economic and political leadership
a. War-supporting Industry
Ammunition factories
Tank and armored personnel carrier factories
Petroleum refineries
Railway yards and repair factories.
b. Industry contributing to economic recovery
Coal
Basic Steel
Basic Aluminium
Cement
Electrical Power

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considers “first strike” and “retaliatory tactical” 69 uses of nuclear weapons,
distinguishing between those involving “theatre” and “battlefield” 70 targeting.

The analysis that follows will employ many of the same criteria. How-
ever, it will not confine assessment to isolated, individual uses of nuclear
weapons. Instead, the legal consequences of the use of nuclear weapons will
be considered in light of the scenarios for use contemplated by existing
strategies and weapons capabilities. The use of nuclear weapons targeted
against civilian populations pursuant to a strategy of “assured destruction”
will be considered first, followed by an analysis of the legality of various
contemplated scenarios of “limited” war, involving tactical and strategic
nuclear weapons designed for use against military targets.

1. Assured Destruction

There is now little or no doubt that a significant countervalue exchange
of strategic weapons, whether by first strike or in reprisal, would violate
each of the six rules set out in Part I(A). In 1975, a special committee of
the National Research Council, U.S. National Academy of Sciences released
a report entitled Long Term Worldwide Effects ofMultiple Nuclear Weapons
Detonations.7′ The report concluded that the exchange of -10 000 megatons
of explosive power in the Northern Hemisphere would constitute a “hor-
rendous” calamity and that “no report can portray the enormity, the utter
horror which must befall the target areas and adjoining territories”. 72 Four
years later, in May 1979, the Congressional Office of Technology Assessment
released its oft-cited, comprehensive study, entitled The Effects of Nuclear

The distinction between counterforce and countervalue targeting is not always precise. The
essential purpose of counterforce targeting is military defeat, whereas the purpose of counter-
value targeting is to threaten massive punishment. On this subject, see also F. Barnaby et aL,
“Reference Scenario: How a Nuclear War Might Be Fought” (1982) 11 Ambio 94.

69″Tactical” nuclear weapons are those maintained for more circumscribed purposes than
are strategic weapons (i.e. for purposes other than striking the homeland). Again, the divisions
are not neat: certain weapons considered by the U.S. to be “tactical”, such as the Cruise and
Pershing II, are easily capable of being used outside a limited theatre to strike the Soviet
homeland.

7The distinction between “theatre” and “battlefield” targeting is also fairly arbitrary. How-
ever, theatre class weapons generally have striking ranges up to 3 000 nautical miles, yield up
to one megaton, and CEP accuracy of better than 300 metres. Battlefield class weapons have
ranges up to 600 nautical miles, yields up to 100 kilotons, and are highly accurate. See Report
of the Secretary-General, supra, note 66 at 26-31.
71Special Committee of the National Research Council, Long Term Worldwide Effects of

Multiple Nuclear Weapons Detonations (1975).

72Ibid., Preamble.

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CONTEMPORARY DETERRENCE STRATEGIES

War.73 That report concluded that in a full-scale strategic war between the
‘Soviet Union and the United States, over 300 million people would be
eliminated in the initial exchange alone. Finally, the most recent study
concludes that immediate deaths from blast, prompt radiation and fires in
any significant countervalue exchange would be as high as 1.1 billion people,
with another 1.1 billion people requiring immediate medical attention. Thus,
the direct effects of a strategic nuclear war would likely kill or seriously
wound over half the world’s population. 74

Predictions about the consequences of all-out strategic attack aside, the
well-documented immediate medical and psychological effects of the nuclear
blasts at Hiroshima and Nagasaki 75 provide ample evidence of the dispro-
portionate and cruel nature of what were, by today’s standards, virtually
insignificant detonations. 76 The use of a single modem weapon, which might
have a million times the yield of strategic bombs used in World War II, or
one hundred to one thousand times the yield of the Hiroshima bomb would,
in its direct and initial effects, render virtually meaningless the cardinal
principles of proportionality, discrimination and humanity embodied in
Rules 1, 2, and 4 (Le. aggravated devastation, indiscriminate harm as be-
tween combatants and noncombatants, disproportionate reprisals).

But that is only the beginning of the story. The 1975 report lists among
the likely long term effects of strategic nuclear war the following elements
of global physical, biological, and ecological calamity: temperature changes
of varying magnitudes and direction; contamination of foods by radio-
nuclides; worldwide disease epidemics due to radiation in crops and do-
mestic animals; irreversible injury to sensitive aquatic species; long term
carcinogenesis due to inhalation of plutonium particles; some radiation-
induced developmental anomalies in persons in utero at the time of deto-
nations; increase in skin cancer caused by severe depletion of the ozone
layer; and sharply increased incidence of genetic disease that would extend
over many generations. 77

73Congress of the United States, Office of Technology Assessment, The Effects of Nuclear

War (Washington: Government Printing Office, 1979).

74World Health Organization, Effects of Nuclear War on Health and Health Services (1983).
75The Committee for the Compilation of Materials on Damage Caused by the Atomic Bombs
in Hiroshima and Nagasaki, Hiroshima and Nagasaki: The Physical, Medical and Social Effects
ofAtomic Bombings, trans. E. Ishikawa & D. Swain (1981); R.J. Lifton, Death in Life: Survivors
of Hiroshima (1967). See, also, 0. Greene et aL, London After the Bomb: What Nuclear Attack
Really Means (1982) for a systematic account of the effects of a nuclear blast on one large city.
76The Hiroshima bomb that killed between 100 000 and 200 000 people was a device of
about 12 kilotons yield (the explosive equivalent of 12 000 tons of TNT). A modern thermo-
nuclear bomb uses a device like the Hiroshima bomb as a trigger –
the “match” to light the
fusion reactor. A typical thermo-nuclear weapon yields about 500 kilotons (the explosive equiv-
alent of half a million tons of TNT). See Sagan, supra, note 27.

77See L.R. Beres, Apocalypse: Nuclear Catastrophe in World Politics (1980) at 139.

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Even more alarming is the most recent finding of a group of interna-
tional scientists, known as TTAPS, that a simultaneous groundburst coun-
tervalue detonation of nuclear weapons yielding as little as 100 megatons
could trigger prolonged declines in global temperatures (a syndrome referred
to as “Nuclear Winter”) which would have a catastrophic impact on the
ecosphere. The long term effects would include acute shortages of food and
fuel, and countless unpredictable “synergies” or “interactive effects” caused
by two or more simultaneous assaults on the environment.

To assert that strategic nuclear exchange involving the targeting of cities
would violate Rule 3 (prohibiting the use of tactics and weapons causing
severe damage to the environment), Rule 5 (prohibiting the use of weapons
or tactics that violate the neutral status of non-participating states), or Rule
6 (prohibition of chemical, biological and “analogous” means of warfare)
understates the case. A quotation from the summary of findings of the group
of biologists assembled in April 1983 to assess the TTAPS conclusions states
the point most eloquently:

Species extinction could be expected for most tropical plants and animals and
of most terrestial vertebrates of north temperature regions. … Whether any
people would be able to persist for long in the face of highly modified biological
communities; novel climates; high levels of radiation; shattered agriculture,
social, and economic systems; and a host of other difficulties is open to ques-
tion. It is clear that the ecosystem effects alone resulting from large scale ther-
monuclear war could be enough to destroy the current civilization in at least
the Northern Hemisphere. Coupled with the direct casualties of perhaps two
billion people, the combined intermediate and long term effects of nuclear war
suggest that there might be no survivors in the North Hemisphere. 78

In view of the notion, generally accepted even by most military planners,
that a “small” strategic exchange involving the targeting of civilian popu-
lations would be impossible to contain,79 an analysis of the use of coun-
tervalue forces in single or isolated circumstances is actually irrelevant.
Indeed, circumscribed use of nuclear weapons against cities is not currently
contemplated in American strategy. The vast majority of nuclear weapons
targeted against civilian populations are large, “dirty”, strategic weapons,
designed to carry out threats of “assured destruction”. If these threats were
ever carried out, scientific findings illustrate that the traditional legal balance
of “humanity” and “military necessity” would be tipped vastly in favour
of outlawing the exchange. It would be straining to perform the function of
a bucket attempting to collect a waterfall.

78P.R. Ehrlich et al., The Cold and the Dark” The World After Nuclear War (1984) 191 at
210.79See, e.g., D. Ball, Can Nuclear War Be Controlled? (198 1). This point will be examined in
greater detail, infra, when the implications of the law are considered.

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CONTEMPORARY DETERRENCE STRATEGIES

111

In a world where the potential cost of war extends beyond the scale
traditionally measured by legal principles to the elimination of the principles
and the socio-cultural context in which they were created, and, in fact, to
the destruction of the ecological fabric of the world as we know it –
to the
extinction of the human enterprise –
it is clearly trite to argue that nuclear
war would violate the principles of “proportionality” and “target discrim-
ination”. Likewise, it would seem senseless to speak in terms of balancing
“military necessity” in circumstances in which the consequences of the
contemplated act “would be so catastrophic that they [would] render any
notion of ‘victory’ meaningless”. 80 The absence of a political justification
or identifiable military purpose would, in and of itself, provide a sufficient
basis for outlawing the aggressive act. Any use of strategic countervalue
weapons would thus amount to more than a violation of the traditional law
of war. It would likely constitute genocide 81 as well as suicide.

2. Limited Nuclear War

Doubts about the credibility and morality of threatening a devastating
“all out” strategic war involving cities have motivated theorists to search
for an alternative to Mutual Assured Destruction (MAD), a more flexible
strategy which would retain the use of tactical and some strategic nuclear
weapons targeted to maintain “control” while sparing civilian populations
from the direct consequences of a nuclear war.82 Central to the search has

1979) 35 at 47.

80IKN. Lewis, “The Prompt and Delayed Effects of Nuclear War”, Scientific American (July
81To the extent that national leaders initiating strategic war with knowledge of the likely
consequences (extinction of the enemy rather than victory in any perceptible “military” battle)
can be said to intend those consequences, they would be in violation of the Convention on the
Prevention and Punishment of the Crime ofGenocide (1951) 78 U.N.T.S. 277 (adopted by U.N.
General Assembly 9 December 1948; entered into force 1 January 1951) [hereinafter Genocide
Convention].

821n a letter to Cardinal Bernadin, 25 January 1983, William Clark, President Reagan’s
National Security Advisor claimed: “For moral, political, and military reasons, the United
States does not target the Soviet civilian population as such … [and] we do not threaten the
existence of Soviet civilization by threatening Soviet cities. Rather, we hold at risk the war-
making capacity of the Soviet Union …. ” Quoted in The Pastoral Letter, supra, note 4 at
714. The reader will notice use of the words “as such”. The U.S. nuclear targeting plan is
reported to include 60 “military” targets in Moscow alone –
enough to ensure that even a
“military” attack on Moscow using nuclear weapons would cause untold human destruction.
There are reportedly a total of 40 000 “military targets” for nuclear weapons which have been
identified in the whole of the Soviet Union. See D. Ball, “U.S. Strategic Forces: How They
Would Be Used” (1982) 7 Int’l Security 31 at 36. See also T. Powers, “Choosing a Strategy
for World War III”, The Atlantic Monthly (November 1982) 82. Direct urban targeting con-
tinues to play an important role in U.S. deterrence strategy, and this will be discussed, infra.

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been the assumption that increased flexibility would both enhance the cred-
ibility of the deterrent and, should deterrence fail, “contain” a nuclear war.
As Van Cleave and Barnett have written:

[D]eterrence may fail in any case, and the weapons may have to be used. The
ability to conduct selective and limited nuclear strikes for express and restricted
purposes … promotes the possibility of escalation control, and increases op-
portunities for war termination without major urban damage.83

The evolution of strategies which contemplate “limited” use of nuclear
weapons against selected targets began in earnest as long ago as 1962 with
the advocacy of a “no cities” targeting doctrine by Robert McNamara. In
his oft-quoted Ann Arbor speech, the then Secretary of Defense said:

The U.S. has come to the conclusion that, to the extent feasible, basic military
strategy in a possible nuclear war should be approached in much the same way
that more conventional military operations have been regarded in the past.
This is to say, principal military objectives … should be the destruction of
the enemy’s forces, not his civilian population. 84

Throughout the 1960’s and early 1970’s, while counterforce targeting was
not explicitly acknowledged as part of declared U.S. strategy, the assignment
of weapons to a growing target list continued in accordance with Mc-
Namara’s direction. 85

In the mid-1970’s Secretary of Defense James Schlesinger spearheaded
the completion of a transition to a policy of “flexible response”, under which
would be available “a series of measured responses to aggression which bear
some relation to the provocation, have prospects of terminating hostilities
before general war breaks out, and leave some possibility for restoring de-
terrence”. 86 Schlesinger’s policy for the first time declared American reliance
on the availability of “limited nuclear options” designed to be used against
precisely selected targets. The policy was affirmed in 1980 by the Carter
administration with the issuance of Presidential Directive No. 59. Subse-
quent explanations of PD 5987 and the 1981 defense budget authorized by
Secretary of Defense Harold Brown, emphasized that, in order to deter the
“full range” of potential Soviet attacks, the U.S. must be prepared to respond
“in a selective and measured way” against “a range of military, industrial,

83Van Cleave & Barnett, supra, note 56 at 661.
84Quoted in D. Ball, Deja Yu: The Return to Counterforce in the Nixon Administration (1974)

at 14.

85A.L. Friedberg, “A History of U.S. Strategic Doctrine: 1945-1980″ (1980) 3 J. Strat. Stud.

37 at 43.

86U.S. Secretary of Defense J. Schlesinger, Annual Defense Department Report: Fiscal Year

1975 (Washington: Government Printing Office, 1974) at 38.

87See H. Brown, Address (Naval War College, Newport, Rhode Island, 20 August 1980).

1984]

CONTEMPORARY DETERRENCE STRATEGIES

and political control targets, while retaining an assured destructive capacity
in reserve”.88

The Reagan administration has continued to move even more in the
direction of policies which assume that, should deterrence fail, nuclear war
can be waged in much the same way as conventional war, with similar
results. This commitment to “atomic superiority” is clearly reflected in the
Fiscal Year 1983 defense budget which states: “[S]hould deterrence fail and
strategic nuclear war with the U.S.S.R. occur, the United States must prevail
and be able to force the Soviet Union to seek earliest termination of hos-
tilities on terms favorable to the United States.” 89

Although current policy likely evolved as a response to the perceived
military and political shortcomings of assured destruction, it has been lauded
also by conservative “moral counterforce” theorists who base their suppport
of continued weapons development on moral and legal “concerns”. These
theorists argue that deterrence based on the holding of civilian populations
as hostages cannot be reconciled with traditional principles of the just em-
ployment of armed force. For example, Fred Ikl6 has written:

The jargon of American strategic analysis works like a narcotic. It dulls our
sense of moral outrage about the tragic confrontation of nuclear arsenals, primed
and constantly perfected to unleash widespread genocide. It fosters the current
smug complacence regarding the soundness and stability of mutual deterrence.

(Washington: Government Printing Office, 1980) at 66.

88U.S. Secretary of Defense H. Brown, Annual Defense Department Report: Fiscal Year 1981
8 U.S. Secretary of Defense C. Weinberger, Annual Defense Department Report: Fiscal Year
1983 (Washington: Government Printing Office, 1982) [hereinafter Report: FY 1983]. Secretary
Weinberger’s most recent Report represents a rhetorical retreat, yet little actual change in
strategy or policy:

Even if we ignored the direct and indirect role of nuclear forces in deterring con-
ventional attack, in a world where the knowledge of nuclear weapons cannot be
banished, the United States would still have to maintain nuclear forces to deter
nuclear attack on its allies and itself. This does not mean we are under any illusions
about the damages of nuclear war … . [W]e believe that neither side could win
such a war … . But while we work to preserve deterrence, we must also think
about and plan against possible failures of deterrence. If deterrence should fail, ….
we must plan for flexibility in our forces and in our options for response, so that
we might terminate the conflict on terms favorable to the forces of freedom, and
reestablish deterrence at the lowest possible level of violence, thus avoiding further
destruction.

Annual Defense Department Report: Fiscal Year 1985 (Washington: Government Printing Of-
fice, 1984) at 29 [hereinafter Report: FY 1985]. It seems somewhat difficult, if not entirely
impossible, to reconcile the admission that “neither side could win” a nuclear war with plans
to “terminate the conflict on terms favorable to the forces of freedom” should such a war break
out.

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[Vol. 30

It blinds us to the fact that our method for preventing war rests on a form of
the mass killing of hostages.9o
warfare universally condemned since the dark ages –

The alternative to MAD, it is argued, is the development of a strategic
posture similar to that being pursued by the Reagan administration –
a
posture which combines weapons technologies capable of concentrating with
“surgical precision” on the enemy’s military capabilities and command structure
with extensive “civil defense” programs. 9′

The moral counterforce argument has been most recently supported on
legal grounds, in the RAND study of the implications of the international
law of armed conflict for assured destruction. 92 The authors conclude that,
based on its likely effects, assured destruction and its derivatives are “di-
rectly opposed to international law and, hence, contrary to both domestic
law and Department of Defense directives governing individual actions
affecting the acquisition, procurement, and use of weapons” 93 Moreover,
“the implications of the law of armed conflict are that the weapons being
developed and deployed should be intended for use only against military
objectives and to be as discriminating as possible in their collateral effects
on the civilian population and property”. 94

On first reflection the reasoning of the RAND report is attractive. The
development of more discriminate, flexible weapons systems would provide
the United States with a “limited warfighting” option more consistent with
the prohibition against indiscriminate civilian bombardment than the ear-
lier “counter city” assured destruction strategy. But if the sole use contem-
plated for nuclear forces is to destroy military targets, there would be no
need to maintain them at all, since they would fail to possess any greater
military utility than conventional explosives. This is particularly so in light
of the increasing ability of conventional weapons to saturate large areas in
much the same way as low-yielding nuclear weaponry. 95

9 0F.C. Ikl6, “Can Nuclear Deterrence Last Out the Century?” (1973) 51 Foreign Affairs 261
at 281. See also, P. Ramsay, The Limits of Nuclear War (1963) at 48; A.L. Burns, “Ethics and
Deterrence: A Nuclear Balance Without Hostage Cities?”, Adelphi Paper No. 69 (London:
International Institute for Strategic Studies, 1970) at 15.

9 1C. Gray & K. Payne, “Victory is Possible” (1980) 39 Foreign Policy 14; C. Gray, Strategic
Studies and Public Policy: The American Experience (1982); B.M. Russett, “A Countercom-
batant Deterrent? Feasibility, Morality and Arms Control” in S. Sankesian, ed., The Military-
Industrial Complex: A Reassessment (1972).

92Builder & Graubard, supra, note 5.
931bid. at ix.
941bid. at xi.
95According to Senator Sam Nunn, “long range conventional weapons are now being de-
veloped that begin to approach the destructive potential of small yield (two to three kiloton)
battlefield nuclear weapons”. Senator Sam S. Nunn, “NATO: Can the Alliance Be Saved?” in
U.S. Senate, Report of the Committee on Armed Services (Washington: Government Printing
Office, 1982) at 16.

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CONTEMPORARY DETERRENCE STRATEGIES

A closer consideration of the RAND conclusions and the analogous
position of the moral counterforce theorists reveals their inadequacy: given
the geographic proximity of “military” and “civilian” targets, the effects of
an attack on strictly “military” installations would violate the principle of
target discrimination. To be consistent with its strategy of deterrence, once
population centres have been subject to the incidental effects of such an
attack, the adversary is left with no choice but to target a population centre
in response. Former Defense Secretary Brown has described this phenomenon:

To have a true countervailing strategy, our forces must be capable of
covering, and being withheld from, a substantial list of targets. Cities cannot
be excluded from such a list, not only because cities, population, and industry
are closely linked, but also because it is essential at all times to retain the option
to attack urban-industrial targets – both as a deterrent to attacks on our own
cities and as the final retaliation if that particular deterrent should fail. The
necessary forces should be included in whatever requirements we set for a
strategic nuclear reserve following initial exchanges. 96

Countervailing strategy does not, therefore, contemplate the substitution of
urban targets with more “discriminate” ones; it requires that both be main-
tained simultaneously, in the hope of sustaining “intra war deterrence”. The
effect of this strategy would be merely to postpone the threat of assured
destruction from being made in peacetime, in which it would be used to
avoid war, to wartime, in which it would be used as a last-ditch threat of
reprisal to keep nuclear war “limited”. Far from condemning the worst
elements of assured destruction, proponents of greater targeting flexibility
actually rely on them to enable the war to be fought and won at lower levels
of conflict.

Nevertheless, might not an argument be made that, taken in isolation,
a single “clean” strike using low yield battlefield weapons would fall within
the law? Indeed, if undertaken for defensive purposes, such a first use might
actually serve as the model of “military necessity” –
saving lives and
property without inflicting disproportionate harm to civilians. Such a claim
does not seem implausible in vacuo; but it is as unrealistic to limit analysis
to more selective counterforce or even isolated battlefield attacks as it would
be to assess isolated use of strategic countervalue weapons: all of these
weapons were, after all, designed for use in particular strategic and political
contexts.

American strategic counterforce and battlefield weapons are intended
for use primarily in three warfighting scenarios: 97 (1) a disarming first strike

96U.S. Secretary of Defense H. Brown, Annual Defense Department Report: Fiscal Year 1980

(Washington: Government Printing Office, 1979).

97See. S.M. Keeny, Jr & W.K.H. Panofsky, “MAD versus NUTS” (1981) 60 Foreign Affairs

287 at 294.

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against ground-launched Intercontinental Ballistic Missiles (ICBM) calcu-
lated to force surrender without full scale war; (2) a “de-capitating” first
strike designed to “take out” the adversary’s command and control facilities;
and (3) a selective use of nuclear weapons in battlefields located in Europe
or elsewhere, to prevent the collapse of Western forces in the face of an
overwhelming Soviet attack. In each of these situations, the collateral dam-
age associated with the use of nuclear weapons would most likely far out-
weigh the alleged “military necessity”.

A massive disarming first strike would, using existing capabilities, in-
volve numerous highly accurate but high-yielding weapons to destroy hard-
ened missile silos. 98 Such an attack, if directed against American Minuteman
silos, for example, would involve the detonation of somewhere between
2 000 and 4 500 attacking warheads, 99 many of which would explode at
ground level, thereby substantially aggravating the collateral effects. Al-
though most missile silos in the United States are located in rural areas,
major bush fires and fallout would have effects which even former Secretary
of Defense Rumsfeld referred to in an Annual Defense Budget as “appall-
ing”.100 Testimony of Dr Sidney Drell before the Senate Subcommittee on
Arms Control disclosed that such a Soviet attack would only be 80 per cent
effective, causing approximately 18.3 million American fatalities, but still
leaving 10 000 strategic warheads intact for retaliation against Soviet pop-
ulations.10′ A similar attack on the Soviet Union would likely be even more
devastating, since the Soviet ICBM force forms an even greater portion of
the total Soviet nuclear arsenal than that of the United States and would
thus attract even more incoming missiles. Worse still, from the Soviet per-
spective, is the fact that the Soviet “military targets” are heavily concen-
trated in close proximity to urban population centers. Indeed, if the United
States were to attack only one of over sixty “military targets” which current
war plans have identified within the city of Moscow alone, the effects of the
blast and collateral radiation would clearly cause death and suffering among

98Such an attack would involve the Soviet Union targeting 1 047 U.S. ICBM launchers or,
conversely, the U.S. destroying 1 400 Soviet launchers. See President’s Commission on Strategic
Forces, Report (Washington: Government Printing Office, 1983) at 4. Although the U.S. is
currently developing lower yield, high accuracy burrowing warheads (1-10 kiloton range, CEP
accuracy 40 meters) suitable for Pershing II missiles, an American attack would probably
employ high yield (335 kiloton), relatively inaccurate Minuteman III missiles.

99Estimates of Keeny & Panofsky, supra, note 97 at 295 ; Sagan, supra, note 27 at 276.
10U.S. Secretary of Defense D. Rumsfeld, Annual Defense Department Report: Fiscal Year

1978 (Washington: Government Printing Office, 1977) at 73.

1OUnited States Congress Senate Committee on Foreign Relations, Subcommittee on Arms
Control, International Law and Organization, Hearing on Effects of Counterforce Nuclear At-
tacks (Washington: Government Printing Office, 1975). The Congressional Office of Technology
Assessment estimates fatalities at 2 to 20 million, supra, note 73.

1984]

CONTEMPORARY DETERRENCE STRATEGIES

117

perhaps millions of innocent civilians. 02 A “major first strike”, according
to a recent scientific report, “would be clearly within the vicinity of, and
perhaps well over, the climatic threshold’ 1 3 beyond which irreversible cat-
astrophic damage could be done to the ecosphere. Clearly, an attack of this
magnitude would be well beyond the bounds of even the broadest possible
conception of military necessity.

The second scenario, involving decapitation attacks against command,
control, communication and intelligence facilities (C 3 1) is equally proble-
matic. Although some of these targets are “softer” than the hardened missile
silos involved in a pre-emptive first strike, thus allowing the use of lower
yield weapons to destroy them, the fact that these targets are more likely
to be located in or near population centers indicates that the direct effects
on civilian populations would be massive. Even the use of accurate 10 to
20 kiloton Pershing II missiles would likely cause aggravated devastation
and suffering (Rule 1) and indiscriminate harm to noncombatants (Rule 2)
which could not be justified even by reference to the “military necessity”
of pre-empting nuclear hostilities.

A claim of military necessity cannot even be considered overriding
where the decapitating blow is made in retaliation, for the purpose of forcing
a rapid end to hostilities, since decapitation would likely have the opposite
effect. This point was made recently by New York Times columnist Flora
Lewis in commenting on PD 59’s emphasis on targeting control centres:

A second policy question raised by the latest White House directive is the
inclusion of “command and control” targets. One constant of nuclear strategy
has been the understanding that, contrary to conventional doctrine, the enemy’s
command should be left intact so that there is still someone capable of stopping
action with whom to negotiate before escalation becomes automatic and un-
conditional for humankind. Is this axiom being abandoned?9 1 4

Indeed, the confusion and suffering created by a decapitating strike would
likely elicit a massive all-out response from the adversary. It, too, would
therefore seem to be lacking in legally justifiable military purpose.

The third scenario is the one most often cited as a justification for
continued deployment of modernized and more flexible nuclear weapons.
This scenario envisages selective use of tactical weapons to contain and
terminate Soviet conventional aggression in Western Europe or in some
other sphere of American interest.

102See supra, note 82.
103Sagan, supra, note 27 at 270.
104F. Lewis, “Old Strategy or New Risk?”, The New York Times (15 August 1980) A 23.

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At first glance, the justification for an isolated use of battlefield weapons
in the heat of a massive Soviet attack seems compelling. In view of the
increasing capacity of nuclear weapons to destroy discrete targets, and the
increasingly destructive character of conventional weaponry, nuclear con-
flict at the lowest level might arguably be only incrementally more destruc-
tive than high-intensity conventional war. 05 As sfich, the use of nuclear
weapons to repel a massive conventional attack might arguably constitute
a permissible, proportionate act of self-defense within the meaning of article
51 of the United Nations Charter. Moreover, it would probably bring an
early end to hostilities while at the same time conveying to the enemy an
intention to defeat him militarily without inflicting excessive damage or
annihilation. As well, the use of tactical weapons would maintain the so
called “coupling effect” by providing an added layer of deterrence –
the
threat of escalation to all out strategic war –
in the event of conventional
aggression.

However, the collateral effects, on noncombatants and neutrals as well
as on the environment, of an attack employing even a single 100 kiloton
weapon would be extreme. Such an attack would likely destroy 50 to 100
armoured fighting vehicles (the equivalent of one regiment), and the direct
effects would incinerate all people and structures within fifteen square miles,
likely including, in the best case, villages and towns containing thousands
of persons. 0 6 Moreover, there is little reason to expect that an initial bat-
tlefield detonation would not attract retaliation from the adversary.

During the resulting uncertainty and escalation from battlefield to the
broader combat theatre, heavily populated areas would easily, by advertence
or otherwise, become unwitting targets. In 1971, two former Pentagon aides
described the effects of such a “limited” war in Europe as follows:

Even under the most favourable assumptions, it appeared that between 2
and 20 million Europeans would be killed, with widespread damage to the
economy of the affected area and a high risk of 100 million dead if the war
escalated to attacks on cities. 0 7

The recent Report of the Secretary General, of the United Nations confirms
that, notwithstanding advances in the accuracy and decreases in the yield
of tactical weapons, a limited nuclear war in Europe involving 200 tactical
weapons targeted against “military” targets would cause five to six million
immediate civilian, and 400 000 military casualties, plus an additional 1.1

05See supra, note 95 and accompanying text. For an excellent account of these developments
in weapons capabilities, see M.T. Klare, “Conventional Arms, Military Doctrine and Nuclear
War The Vanishing Firebreak” (1984) 59 Thought 53.

106S.J. Deitchman, New Technology and Military Power: General Purpose Military Forces

for the 1980’s and Beyond (1979) at 12.

07A.C. Enthoven & K.W. Smith, Hoiv Much is Enough? (1971) at 128.

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CONTEMPORARY DETERRENCE STRATEGIES

119

million civilians suffering the collateral effects of radiation. 08 Another re-
cent estimate concludes that a European tactical nuclear war “could kill
nearly all the persons in the urban centers of Western Europe and subject
those areas to near total destruction”. 0 9

The likely collateral effects of “limited” war in each of the scenarios
contemplated by American countervailing strategy –
ranging from the im-
mediate death of thousands or millions of innocent citizens to climatic
catastrophe –
should serve as clear evidence of the falsity of the RAND
study’s conclusion that improved discrimination in targeting would bring
American strategy into line with the law of war. Those who remain uncon-
vinced must be reminded of a second, even greater problem confronting
strategies which assume a selective, military role for nuclear weapons: there
has yet to be advanced a credible reason to believe that the use of nuclear
weapons, even on the smallest scale, would remain limited. On the contrary,
there seems to be every reason to believe that once the nuclear firebreak is
crossed, rapid escalation to conflict involving the largest number of weapons
possible would take place.

Limitation of nuclear war is unlikely to succeed because of Soviet non-
reciprocity. Even in the event that the U.S. could maintain the discipline
and coordination to administer selectively controlled reprisals during the
chaos of nuclear war, Soviet defense planning apparently rejects the notion
of “limited” or “controlled” war scenarios. Instead, the Soviets could be
expected to opt for a strategy which would be most likely to result in the
quickest possible victory by destruction of all targets necessary to the ad-
versary’s war-waging ability. According to John M. Collins, author of a
recent study of the U.S.-Soviet military balance:

The Politburo assigns a low priority to sophisticated concepts for limited
nuclear war, if known Soviet doctrines are any indication. There is doubt, for
example, that diplomatic ballets and finely-tuned bargaining would reduce the
danger. Esoteric signals, such as symbolic, exemplary and talionic [tit-for-tat]
strikes, might well be missed or misunderstood in the heat of the nuclear battle
…. The Soviets therefore may well abandon most constraints once the thresh-
old of nuclear war has been crossed and, abiding by the adage “‘never send a
boy to do a man’s job”, employ whatever power is needed to defeat opponents
expeditiously.’ 0

1

Whether the Soviet distaste for limiting nuclear war is explained as a lack
of desire to “play the game” according to Western rules, or as an attempt

’08Report of the Secretary-General, supra, note 66.
109H.W. Kendall, Professor of Physics at M.I.T., cited in Beres, supra, note 77 at 33.
S0Cited in L.R_ Beres, Mimicking Sisyphus: America’s Countervailing Nuclear Strategy (1983)
at 35. Soviet military thought is described in B.S. Lambeth, “How to Think About Soviet
Military Doctrine” in J. Bayis & G. Segal, eds, Soviet Military Strategy (1981) at 105-23 and
A.A. Sidorenko, The Offensive (1970).

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to avoid the contradiction involved in attempting to justify to the population
plans to limit a war argued to be “just” according to Soviet ideology, is
irrelevant. The essential fact is that it takes both parties to agree to a code
of conduct for limiting the scope of hostilities.

Perhaps even more importantly, Western academics and policy makers
have long recognized the lack of any convention for termination which
would confer political benefits on a “victor” rather than causing mutual
annihilation. This dilemma was expressed by Defense Secretary Brown:

I do not wish to pretend … that anyone has found a way of conducting
a strategic nuclear exchange that remotely resembles a traditional campaign
fought with conventional weapons. . . . Admittedly, counterforce and damage-
limiting campaigns have been put forward as the nuclear equivalents of tra-
ditional warfare. But their proponents find it difficult to tell us what objectives
an enemy would seek in launching such campaigns and how these campaigns
would terminate.” I

Four well-known former government officials and experts in nuclear policy
are even more blunt about the prospects for limiting nuclear hostilities to
the military battleground:

It is time to recognize that no one has ever succeeded in advancing any
persuasive reason to believe that any use of nuclear weapons even on the
smallest scale, could reliably be expected to remain limited. Every serious
analysis and every military exercise, for over 25 years, has demonstrated that
even the most restrained battlefield use would be enormously destructive to
civilian life and property. There is no way for anyone to have any confidence
that such a nuclear action will not lead to further and more devastating ex-
changes. Any use of nuclear weapons in Europe, by the Alliance, or against it,
carries with it a high and inescapable risk of escalation into the general nuclear
war which would bring ruin to all and victory to none. ‘ 2

Having considered this and other difficulties with the assumption of limit
and control, a prominent group of scientists recently concluded that “there
is no plausible scenario for the use of nuclear weapons in a conflict between
the superpowers that does not carry with it the danger of catastrophic es-
calation”.”13 Bearing in, mind the weight of this authority, it seems reason-
able to conclude that if there is indeed a warfighting scenario which does
not carry with it the probability of rapid escalation, the onus must lie with
those who assert its existence to provide proof.

I’U.S. Secretary of Defense H. Brown, AnnualReport ofDepartment of Defense: Fiscal Year

1979 (Washington: Government Printing Office, 1978) at 75-6.

” 2Bundy et al., supra, note 3 at 757.
“13K. Gottfried, H.W. Kendall & J.M. Lee, “No First Use of Nuclear Weapons”, Scientific

American (March 1984) 33 at 34.

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CONTEMPORARY DETERRENCE STRATEGIES

121

In the absence of a plausible convention for limiting the escalation of
nuclear conflict, no victor could emerge from a nuclear war, since victory
implies that “the peace of one’s people is better after the war than before”
and “is only possible if a quick result can be obtained or if a long effort can
be economically proportioned to the national resources”.’ 14 With the hope
of victory frustrated by the devastating effects of an extended nuclear war,
a state would have no political or military purpose for entering into nuclear
hostilities in the first place. There being, thus, no possible “military neces-
sity” against which any violation of the principle of humanity could be
balanced, it may be concluded that any use of nuclear weapons would violate
the law of war.

At the end of the day, therefore, a contextual analysis of nuclear warfare
which takes into account currently existing weapons and strategies yields
the same practical conclusion as a finding of intrinsic illegality: although
nuclear weapons are not illegal per se, their likely effects and the absence
of any mechanism to control the escalatory spiral once the firebreak is
crossed render virtually any use inconsistent with the fundamental objec-
tives and principles of war. The use of nuclear weapons would therefore be
unlawful, even during a war of legitimate self-defense.

IH. The Threatened Use of Nuclear Weapons: Addressing the “Paradox of

Deterrence”

If a course of action is illegal, then moral and legal logic dictate that
its preparation and planning should be prohibited as well. Since nuclear
weapons are by their nature illegitimate, because their use cannot be con-
trolled nor their effects limited, the deterrence structures which rest on the
manufacture, possession, and threats to use these weapons would seem,
prima facie, to be unlawful.

Similarly, there is a legal basis for criminalizing the manufacture, pos-
session and deployment of nuclear weapons. The Genocide Convention, by
Article 1, clearly recognizes as a crime any conspiracy, incitement or attempt
to commit genocide or any complicity in the commission of the actual
crime.’ 15 To the extent that the use of nuclear weapons would constitute
an action taken intentionally” 16 against a national, ethnic, racial or religious
group, the language of the Convention would clearly embrace actions which
form the basis of threats to use them. Moreover, the judgements of the

“4B.H. Liddell-Hart, Strategy (1974) at 357.
115Genocide Convention, supra, note 81, Article 3 at 280.
” 6″Intention” is interpreted here as meaning either purposeful conduct, or conduct under-

taken with knowledge of the likely consequences.

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Nuremberg Tribunal, codified in 1950 by the International Law Commis-
sion and unanimously approved by the United Nations General Assem-
bly, 117 provide authority for the imposition of direct criminal liability on
those persons responsible for the use or threatened use of nuclear weapons
as part of “the planning, preparation, initiation, or waging of a war of aggres-
sion or a war in violation of international treaties, agreements or assurances”
or participation in a “common plan or conspiracy” for the accomplishment
of such purposes.

Finally, throughout this century, a body of authority has emerged which
prohibits not only aggressive war, but also the threat of war. The Kellogg-
Briand Pact of 1927 and the subsequent General Treaty for the Renunciation
of Wars for the first time formally outlawed war and the use of force in
international affairs. 81 While these instruments failed to prevent the advent
of World War II and the ensuing neglect of international norms of law and
morality, their validity and relevance was affirmed by the Nuremberg Tri-
bunal in 1946. The nations of the world reacted to the horrors of World
War II by proclaiming in the Preamble to the United Nations Charter that
the purpose of the organization was “to save succeeding generations from
the scourge of war”. This commitment is also reflected in Article 2(4) of
the Charter which prohibits the use and threatened use of force “against
the territorial integrity or independence of any state”, except in self-defense
or under authority of the United Nations.” 19 The principle that war of aggres-
sion warrants the highest degree of international opprobrium, namely to be
branded as an international crime, was also affirmed by the Nuremberg
Tribunals, and has been so often reaffirmed by the General Assembly as to
have become an undisputed axiom of international law.

1

7 United Nations G.A. Res. 95 (I), U.N. Doc. A/64/Add.1 (1946).
1 18General Treaty for the Renunciation of Wars, 27 August 1928, 46 Stat. 2343, 94 L.N.T.S.

57, provides:

Article 51 provides:

Article I: The High Contracting Parties solemnly declare that they condemn recourse
to war for the solution of international controversies, and renounce it as an instru-
ment of policy in their relations with one another.
Article II: The High Contracting Parties agree that the settlement of all disputes or
conflicts, of whatever origin they might be, which might arise among them, shall
never be sought except through pacific means.

19Article 2(4) provides:

All members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any state, or in
any other manner inconsistent with the purposes of the United Nations.

Nothing in the present Charter shall impair the inherent right of individual and
collective self-defense if an armed attack occurs against a member of the United
Nations, until the Security Council has taken measures necessary to maintain in-
ternational peace and security.

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CONTEMPORARY DETERRENCE STRATEGIES

123

Analysts who resist the application of this body of law to the manu-
facture, deployment and threatened use of nuclear weapons have cited a
troubling and paradoxical reality concerning the modem international sys-
tem: the possession and threatened use of nuclear weapons is claimed by
each of the nuclear powers to be necessary for the prevention of unlawful
uses by the adversary. According to this view, it is perfectly lawful for a
state to threaten to do in peacetime that which would be unlawful in war-
time, as long as the peacetime threat can be considered as rationally con-
tributing to the end of deterring the unlawful nuclear attack. 20 According
to Michael Reisman,’ 2′ in the present world of sovereign and suspicious
states there is “a Gresham’s Law of weapons in international law: the sta-
bility that one seeks in a decentralized system requires the development
and maintenance of the very weapon that threatens us and that we would
like to eliminate”. 22

Even if it is assumed that nuclear deterrence is an acceptable means of
preventing nuclear war,123 the objectives of U.S. nuclear policy have never
been limited to that end. 24 Contrary to the belief held by a vast majority
of Americans that U.S. “deterrence policy” contemplates the use of nuclear
weapons “if and only if’ the United States is first attacked with nuclear
weapons, 25 nuclear threats have, since their inception, played an essential

’12 See, e.g., H.H. Almond, Jr, “Deterrence Processes and Minimum Order” (1983) 4 N.Y.L.

Sch. J. Int’l & Comp. L. 283.

& Comp. L. 339.

1’2 W.M. Reisman, “Nuclear Weapons in International Law” (1983) 4 N.Y.U. L. Sch. J. Int’l
’22Reisman, ibid. at 341. In “The Abolition”, New Yorker [Magazine] (2 January 1984) 36
and (9 January 1984) 43, Jonathan Schell describes a regime of”weaponless deterrence” which
provides for complete nuclear disarmament while preserving the balance of power and state
sovereignty system. He proposes a four part treaty by which nuclear states would agree to
complete denuclearization and a balance of conventional forces, permitting the development
of anti-missile systems as a “hedge against cheaters”. Once disarmed, former nuclear states
would agree on a “defined state of readiness” for rearmament, which would deter potential
“cheaters” from clandestine production and threatened use. Although implementation of Schell’s
proposal would be fraught with difficulty, it does provide at least one vision of a world of
sovereign states in which the actual possession and threatened use would not be necessary for
purposes of deterring nuclear attack.

23This will be discussed at greater length in Part IV, infra.
’24For the remainder of this article, an important distinction will be drawn between two uses
of the term “deterrence”. “Minimal” or “pure” deterrence involves threatening to use nuclear
weapons only for retaliation in response to nuclear attack by the adversary. Its purpose is to
discourage direct nuclear attack on the homeland of the deterring nation by promising nuclear
response. “Extended” deterrence involves threats to use nuclear weapons in response to a
broader spectrum of undesirable behaviour by the adversary. Its purpose is to threaten un-
acceptable destruction in order to discourage the adversary from either undertaking or con-
tinuing to use conventional as well as nuclear force.

125D. Yankelovich & J. Doble, “The Public Mood: Nuclear Weapons and the U.S.S.R.”

(1984) 63 Foreign Affairs 33 at 45.

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role in the attainment of other objectives of U.S. foreign policy –
a role
that is closely associated with the protection of American geopolitical in-
terests and the projection of American power in the world. As two influential
theorists have written:

There should be no misunderstanding the fact that the primary interest
of U.S. strategy is deterrence. However, American strategic forces do not exist
solely for the purpose of deterring a Soviet nuclear threat or attack against the
United States itself. Instead, they are intended to support U.S. foreign policy
as reflected, for example, in the commitment to preserve Western Europe against
aggression. Such a function requires American strategic forces that would en-
able a President to initiate strategic nuclear use for coercive, though politically
defensive, purposes. 26

The centrality of nuclear diplomacy –

the threat to initiate nuclear
attack –
to the conduct of post-World War II U.S. foreign policy can be
traced as far back as the period following the Soviet incorporation of Eastern
Europe and threatened expansion into Greece and Turkey, the Truman
Doctrine of 1947, the Berlin crisis of the following year, and the creation
of NATO. With the adoption of National Security Memorandum 68 (NSC-
68)127 and the policy of containment 128 in 1950, a new major function of
U.S. nuclear weapons became dissuasion of Soviet conventional aggression
in Western Europe. Since then, nuclear weapons have been integrated to an
increasing extent into the overall military posture of the United States. They
have been designed with sufficient flexibility and in great enough numbers
to respond both to changes in the definition of perceived threats to U.S.
security interests which have generated changes in the “missions” which
U.S. forces are designed to serve, and to improvements in Soviet military
capabilities which have undermined the credibility of U.S. extended deter-
rent threats. Accordingly, while changes in nuclear doctrine have carried
the role of nuclear weapons from threatening “massive retaliation instantly,

126C.S. Gray & K. Payne, “Victory is Possible” (1980) 39 Foreign Policy 14 at 20.
127U.S. National Security Council, “‘NSC-68’: A Report to the National Security Council,

April 14, 1950” [May-June 1975] Naval War College Rev. at 68.

128Conceived primarily by Paul Nitze, now Chief Arms Control Negotiator of the Reagan
administration, the policy of containment articulated in NSC-68 sought “by all means short
of war to (1) block further expansion of Soviet power, (2) expose the falsities of Soviet pre-
tensions, (3) induce a retraction of the Kremlin’s control and influence and (4) in general, so
foster the seeds of destruction within the Soviet system that the Kremlin is brought at least
to the point of modifying its behaviour to conform to generally accepted standards”. Ibid. at
68. The policy of containment committed the United States unequivocally to a sustained drive
for military strength and superiority, including increases “in the size of our atomic capacity
as rapidly as other considerations make appropriate”. According to NSC-68: “Without superior
aggregate military strength, in being and readily mobilizable, a policy of containment – which
is in effect a policy of gradual coercion –

is no more than a policy of bluff.” Ibid.

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CONTEMPORARY DETERRENCE STRATEGIES

125

by means and places of our own choosing”129 in the 1950’s, to exhibiting
a “declared willingness to escalate as necessary”1 30 in the 1960’s, and pro-
viding “a series of measured responses to aggression which bear some re-
lation to the provocation, have some prospects of terminating hostilities
before general nuclear war breaks out, and leave some possibility for res-
toring deterrence”‘ 3′ in the 1970’s, threats of nuclear retaliation have never
been limited exclusively to responding to nuclear attack.

The Reagan nuclear weapons strategy carries the logic of extended de-
terrence to its ultimate end by expanding the number of missions and flex-
ibility of nuclear threats further than any of its progenitors.1 32 The current
“countervailing strategy” envisages “a single coherent policy that governs
the linkage among our conventional, non-strategic nuclear, and strategic
nuclear weapons”, 133 so as to ensure both willingness and capability to fight
and emerge victorious at any level of contemplated violence. According to
the Reagan defense budget of 1983, nuclear forces are retained in the policy
of “escalation dominance” for four purposes: (1) “to deter nuclear attack
on the United States or its allies”; (2) “to help deter major conventional
attack against U.S. forces and our allies, especially in NATO”; (3) “to impose
termination of a major war –
on terms favourable to the United States
and our allies even if nuclear weapons have been used, and in particular to
deter escalation in the level of hostilities”; and (4) “to negate possible Soviet
nuclear blackmail against the United States and our allies”. 134

In geopolitical terms, according to the most recent defense budget, U.S.
forces are now designed “to project forces over long distances to austere
regions”, to “deliver forces rapidly to distant trouble spots and to sustain

129U.S. Secretary of State J.F. Dulles, “Evolution of Foreign Policy” (Address to the Council
on Foreign Relations, 12 January 1954), excerpted in U.S. State Department, American Foreign
Policy: Basic Documents, 1950-55, vol. I (1971) at 80-5.

130U.S. Secretary of Defense R.S. McNamara, Address (Commencement Exercises at the
University of Michigan, Ann Arbor, 16 June 1982), quoted in W. Kaufman, The McNamara
Strategy (1964) at 116.

3’3 Schlesinger, supra, note 86 at 35.
132By the end of 1980, following the adoption of the Carter/Brown doctrine embodied in
PD-59, American forces were said to serve four primarily geopolitical functions: (1) deterrence
of Soviet nuclear attack on the U.S.; (2) deterrence of Soviet invasion of Western Europe using
conventional, chemical, or tactical nuclear weapons; (3) defeat of Soviet seizure of Persian
Gulf oil fields; and (4) capacity to fight an extra “half war” while fighting a major war against
the Soviet Union. See B. Posen & S. Van Evera, “Defense Policy and the Reagan Adminis-
tration” (1983) 8 Int’l Security 3.

133Weinberger, Report: FY 1983, supra, note 89 at 56.
1341bid. at 1-18.

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them once deployed”, and “to possess the advantage at every level of po-
tential conflict” in “any number of regions around the world”. 35 It has been
suggested that this policy adds at least three more “missions” to U.S. con-
ventional and nuclear forces: (1) the ability to launch a disarming counter-
force attack against the Soviet Union; (2) increased offensive capability; and
(3) increased capability to intervene in the Third World.136 In sum, ac-
cording to Eugene Rostow, a former Director of the United States Arms
Control and Disarmament Agency, U.S. foreign policy “turns ultimately on
the deterrent power of the American nuclear umbrella –
the rock on which
the renaissance of the West since 1945 was built and the foundation for its
security”. 137

So long as nuclear weapons are assigned such a broad geopolitical role,
it is clear that threats to use them will be far more frequent than if nuclear
threats were limited to deterrence of nuclear attack. Indeed, although little
is known about the process by which nuclear threats are formulated and
communicated, except that they are made at the highest levels of govern-
ment and generally without consultation with democratically elected rep-
resentatives,138 recently declassified documents show that “since 1945 there

35Weinberger, Report: FY 1985, supra, note 89. The commitment of nuclear weapons, as
1
the backbone of U.S. foreign policy, to such a broad range of missions raises legal questions
which are unrelated to the law of war as described in this article. The constant demands for
increases in the sophistication and number of nuclear weapons to carry out the missions of
the extended deterrent policy seem entirely inconsistent with obligations to “achieve the dis-
continuance of all test explosions for all time” found in the Partial Test Ban Treaty of 1963,
14 U.S.T. 1313, T.I.A.S. 5433, 480 U.N.T.S. 43, and the Threshold Test Ban Treaty of 1974,
reprinted in U.S. Arms Control and Disarmament Agency, Arms Control and Disarmament
Agreements, 5th ed. (1982) at 167, and the obligation in Article VI of the 1968 Non-Proliferation
Treaty, 21 U.S.T. 483, T.I.A.S. 6839, 729 U.N.T.S. 161, “to pursue negotiations in good faith
on effective measures relating to the cessation of the nuclear arms race at an early date and
to nuclear disarmament”. As Dimitri Simes has written, “[w]e cannot simultaneously have it
both ways –
enjoy meaningful nuclear arms control and at the same time believe that under
some circumstances we may rely on first use of nuclear weapons”. Quoted in A.L. Neidle, ed.,
Nuclear Negotiations: Reassessing Arms Control Goals in U.S.-Soviet Relations (1982) at xxv.
More recently, Richard Wagner, Assistant to the Secretary of Defense for Atomic Energy, stated:
“Even if our best efforts at arms control succeed, we are going to need new weapons designs
in the nineties and beyond.” U.S. House of Representatives, Armed Services Committee,
Atomic Energy Defense Activities: Fiscal Year 1984 (Washington: Government Printing Office,
1983) at 26.

1982), quoted in G. Prins, ed., The Nuclear Crisis Reader (1984) at 3.

136Posen and Van Evera, supra, note 132.
137 Eugene V. Rostow, Address (World Affairs Council, Los Angeles, California, 10 September
138The impact on the normal processes of democratic societies of such enormous power
residing in the hands of a few, often unelected bureaucrats and executive advisors is more fully
considered in R.A. Falk, “Nuclear Weapons and the End of Democracy” (1982) 2 Praxis Int’l

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CONTEMPORARY DETERRENCE STRATEGIES

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have been some twenty occasions during which responsible officials of the
United States government formally considered the use of nuclear weapons”. 139

Moreover, as extended deterrence is enhanced by the increased ability
to deliver more flexible nuclear weapons to those areas in which interests
are perceived to be at stake, nuclear threats become extraordinarily subtle,
and thus more easily relied upon. Whereas in the 1950’s the United States
communicated its nuclear threats verbally, 140 by the Yom Kippur war of
1973 the emplacement of U.S. ICBM forces at an increased level of alert’4’
made clear to the Soviet Union that the interference with U.S. geopolitical
interests in the Middle East might provoke nuclear response. In the 1980’s,
the mere dispatch of mobile of nuclear-capable naval or land forces to a
given geographic region constitutes clear communication of the threat to
use nuclear weapons.

In addition to expanding the range of circumstances in which nuclear
threats are made, extended deterrence portends to increase to a virtually
irrevocable level of commitment the promise that such threats will be carried
out, 42 thereby increasing the likelihood of nuclear war. This is the case for
two reasons. First, at the battlefield or theatre level, the integration of highly
selective and mobile nuclear artillery and warhead launchers into conven-
tional naval and land forces designed to insure “victory at every level of
contemplated violence” means that in a conventional battle the losing side
would be faced with only two choices: either to use its nuclear weapons or
to allow them to be overrun by the enemy. The net result is a severe erosion
of the critical manoeuvring space or “firebreak” between conventional and
nuclear war. 143 In Western Europe, for example, nuclear weapons are so

139Ball, supra, note 82 at 42. See also D. Ellsberg, “Introduction” in E.P. Thompson & D.

Smith, eds, Protest and Survive (1981).

140President Truman, for example, stated at a press conference in November, 1950 that
nuclear attack on North Korea was “under active consideration”. H.S. Truman, Memoirs:
Years of Trial and Hope, 1946-1952, vol. 2 (1965) at 450-1.

141M. Kalb & B. Kalb, Kissinger (1974) 491-2.
142See President John F. Kennedy, “The Soviet Threat to the Americas” (Address), reprinted
in (1962) 47 U.S. State Dep’t Bull. 715 at 716. President Kennedy seemed to recognize the
legal and moral significance of the increase in the level of commitment to use nuclear weapons
signified by the combination of weapons capabilities and political purposes, when he stated,
ibid., (with reference to the potential deployment of nuclear weapons in Cuba):

Neither the United States of America nor the world community of nations can
tolerate deliberate deception and offensive threats on the part of any nation, large
or small. We no longer live in a world where only the actual firing of weapons
represents a sufficient challenge to a nation’s security to constitute maximum peril.
Nuclear weapons are so destructive and ballistic missiles are so swift that any change
in their deployment may well be regarded as a threat to peace.

143The dangers of the eroding firebreak are more fully discussed in Klare, supra, note 105.

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heavily relied upon that the Supreme Allied Commander of NATO’s Eu-
ropean forces (SACEUR) recently stated: “If attacked conventionally NATO
would face fairly quickly the agonizing decision of escalating to a nuclear
response in order to try and convince the aggressor to halt his advance. In
essence, we have mortgaged NATO’s defense to the nuclear response.”‘ 144
Second, at the strategic level, an extended deterrent, war winning stra-
tegy encourages the production, deployment and threatened use of newer,
more accurate, and quicker weapons whose purpose is to destroy the ad-
versary’s military facilities. As improvements in technology make both sides’
arsenals more provocative, each moves closer to a “launch on warning”
posture, under which its weapons would be launched in the event of a crisis,
before they could be attacked and lost.’ 45

It should be clear, therefore, that both modem nuclear weapons and
doctrines for their use simply cannot be considered to be solely reactive in
their orientation. Instead, contemporary deterrence has steadily evolved into
something much more closely approximating the traditional conception of
military force applied in the pursuit of national objectives.

We must recall here our earlier conclusion that even within the current
international system, the only possible legal justification for threats to use
nuclear weapons is to dissuade nuclear attacks. Since extended deterrence
strategies and capabilities involve threats to initiate nuclear war for the
broader purpose of providing a credible contingency for warfighting victory,
they must be considered as violating of international law. Any nuclear weap-
ons in excess of those required to fulfill the minimal function of retaliation
must therefore be viewed as unconditionally unlawful.

Policy-makers continue, nevertheless, to assert the legality of the first-
use option, basing this view on the rights of “individual and collective self-
defense” recognized by article 51 of the United Nations Charter. As early
as 1962, Secretary of State Dean Rusk articulated the rationale which has
since been used by the United States to justify its opposition to or abstention
from successive U.N. resolutions against the use of nuclear weapons:

The defense system of the United States and its allies, freely arrived at in
accord with the United Nations Charter, includes nuclear weapons. This must

144Statement of General Bernard B. Rogers, Supreme Allied Commander of Europe in U.S.
House of Representatives, Committee on Armed Services, Hearings on Department of Defense
Authorizations of Appropriations for Fiscal Year 1985 (Washington: Government Printing Of-
fice, 1984) at 897.
145Such policies further subvert democratic processes by shifting authority and control over
nuclear weapons not only from consideration by elected representatives, but also from the
President, to advanced computer systems capable of detecting and immediately responding to
a possible nuclear attack.

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CONTEMPORARY DETERRENCE STRATEGIES

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continue to be the case as long as it is impossible to be certain through measures
of verification that the other states, which could use such weapons for aggressive
purposes, do not retain a similar array of weapons in their national arsenals.
The United States government can and does offer the fullest assurances that
it will never use any weapons, large or small, with aggressive intent. But the
United States, like other free nations, must be fully prepared to exercise effec-
tively the inherent right of individual and collective self-defense as provided
in the United Nations Charter.146

More recently, President Reagan stated: “The U.N. Charter… neither pro-
hibits the use of force in self-defense, nor outlaws nuclear weapons for
defense or deterrence.” 1 47

One of two assumptions necessarily underlies this interpretation of the
law: either that any degree of force is acceptable; or that the defensive use
of nuclear weapons could take place in accordance with the rules of jus in
bello. Both of these seem unfounded. First, on any meaningful interpretation
of the law of war, even the most justified uses of force cannot be unlimited
in their scope or destructiveness. Second, as was considered above, 148 in
view of the likely consequences of even the most circumscribed uses of
nuclear weapons and the overwhelming likelihood of rapid escalation once
the nuclear threshold is crossed, any “defensive” use of nuclear weapons is
virtually certain to violate the law. The threat of nuclear retaliation in re-
sponse to conventional aggression amounts, therefore, to no more than what
has often been described as “either a bluff or a suicide pact”. In either case
it is unlawful.

According to another interpretation, the first-use option can be de-
fended as part of a law-making process of expectation and communication
which involves “a balancing of weapons and threats to ensure a deterrence
equilibrium”, 49 and thus the prevention of any aggressive change in rela-
tions between nuclear states which could result in nuclear war. In policy
terms, this interpretation is based on the view that the best way to prevent
nuclear war is by deterring conventional war which could escalate, and the
best way to deter conventional war is to threaten nuclear retaliation. Ac-
cording to Secretary of Defense Weinberger. “The nuclear option remains
an important element in deterring Soviet attack. If the Soviet leadership is
aware that NATO, if attacked, will employ, if required, all means necessary
to defend itself and prevent the U.S.S.R. from achieving its war aims, then

146United States Arms Control and Disarmament Agency, Documents on Disarmament

(Washington: Government Printing Office, 1962) at 630.

147U.S. State Department, United States Participation in the U.N.: Report by the President

to the Congress for the Year 1981 (Washington: Government Printing Office, 1981) at 54.

148See supra, notes 81-114 and accompanying text.
149Almond, supra, note 120 at 286.

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deterrence is strengthened and the chances of both conventional and nuclear
war are reduced.”‘ 150

Even if it is assumed that the nuclear threat, and not other political
and economic factors, has prevented conventional assault on Europe, this
defense of extended deterrence seems circular. If indeed the requirements
of conventional and nuclear deterrence have merged, it is only because the
nuclear option has wedded conventional war to nuclear war, rendering the
integrated conflict unwinnable and suicidal. Far from providing grounds for
legal support of the first-use option, this fact is the very cause of its unlaw-
fulness. Moreover, the political objective of controlling conventional aggres-
sion is irrelevant to a consideration of the legality of the means chosen. The
defense of “necessity”, which might justify limited nuclear threats to deter
nuclear attack within the balance of power system, is inapplicable to the
objective of deterring conventional attack. This objective can be obtained
by a variety of other means.

IV. Implications for U.S. Defense Planning: Toward a Legal Regime for

Nuclear Weapons

A. The Short Term: A Minimal and Stable Deterrence

If state practice is to respect international law, the following notions
must be recognized: (1) crossing the nuclear firebreak would result in a grave
violation of the modern law of armed conflict; (2) avoidance of nuclear war-
lies, therefore, at the pinnacle of the hierarchy of objectives pursued by the
law of war in the nuclear age, 15 1 and if there is any function of nuclear
weapons which might possibly be consistent with this objective, it is only
to deter their use; 152 (3) current U.S. nuclear policy is unlawful because it
contemplates the first use of nuclear weapons for unlawful purposes (to
reinforce the application of offensive conventional force in the Third World)
or for purposes of escalating defensive uses of military force beyond the
level of intensity or scope permitted by the rules of target discrimination
and proportionality; and (4) nuclear weapons which are vulnerable to pre-
emption or which threaten the adversary’s retaliatory forces are of no de-
terrent value and are thus unlawful per se.

The immediate implication for U.S. defense planners, who are bound
by treaty and national directives to observe the requirements of the law of

I”0 Weinberger, Report: FY 1983, supra, note 89 at 57.
15’For this term, I am indebted to Richard A. Falk, “Toward a Legal Regime for Nuclear
152See supra, note 122 and accompanying text.

Weapons” (1983) 28 McGill L.J. 519 n. 31.

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CONTEMPORARY DETERRENCE STRATEGIES

131

war,15 3 is that nuclear policies and capabilities must be revised in a manner
which reserves the threatened use of nuclear weapons exclusively for de-
terring nuclear attack on the U.S. homeland, and no longer for integration
as a “coherent” and “responsive” instrument of foreign policy. Rather than
being calculated to create an apprehension that nuclear responses are flexible
enough to retaliate credibly to unspecified “provocations”, military arsenals
should be restructured to create a small, invulnerable, non-threatening de-
fensive deterrent. 54 Such a force posture would pose no threat of first strike
or attack to the adversary, while deterring nuclear attack by ensuring the
survivability and possible use of a strong enough nuclear force to cause
devastating consequences to an adversary who might be tempted to launch
a nuclear attack.

The transition to a posture of “minimal deterrence” would involve the
elimination of all but approximately four hundred survivable warheads1 55
and a restructuring of military arsenals in a way that would make credible
a bilateral “no first use” arrangement.15 6 It would confine the military to,
stable defense as follows:

’53Article 86 of the 1977 Geneva Protocol I Additional, supra, note 21 provides:

In the study, development, acquisition or adoption of new weapons, means or
method of warfare, a High Contracting Party is under an obligation to determine
whether its employment would, in some or all circumstances, be prohibited by the
Protocol or by any rule of law applicable to the High Contracting Party.

Also relevant is Department of Defense Instruction 5500.15, dated October 1974 (see United
States Department of the Air Force, supra, note 8) which stipulates that:

All actions of the Department of Defense with respect to the acquisition and pro-
curement of weapons, and their intended use in armed conflict, shall be consistent
with the obligations assumed by the United States Government under all applicable
treaties, with customary international law, and in particular with the laws of war.

154See V. Ferraro & K. Fitzgerald, “The End of the Strategic Era: A Proposal for Minimum

Deterrence” (1983) 1 World Policy J. 30.

155 The question “How much is enough?” was addressed by Secretary of Defense Robert
McNamara over two decades ago. After having considered the effect of nuclear weapons in
relation to Soviet demographics, McNamara concluded that very little additional damage could
be accomplished in a nuclear war beyond the 200-400 one-megaton-equivalent warheads. In
fact, his calculations illustrated that 400 warheads would destroy 76% of Soviet industry; any
warheads beyond this number would destroy only 1% additional industry due to widespread
dispersion across the Soviet countryside at that level. The 400 figure would also enhance the
credibility of the deterrent by threatening damage below the theshold of nuclear winter. On
this point, see Sagan, supra, note 27.

156Soviet Defense Minister D. Ustinov stated in 1982 that “only extraordinary circumstances
–
a direct nuclear aggression against the Soviet state or its allies –
can compel us to resort
to a retaliating nuclear strike as a last means of self-defense”. Quoted in R. McNamara, “The
Military Role of Nuclear Weapons” (1983) 62 Foreign Affairs 50 at 66. At the United Nations
Special Session on Disarmament in 1982, the Soviet Union “solemnly” pledged that it “would
not be the first to use nuclear weapons”. China has made a similar commitment and, as recently
as September 1984, at the United Nations, has called upon other nuclear powers to reciprocate.
See, J. Feron, “China Calls on Nuclear Powers For Pledge on First Use of Weapons” The New

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1. Elimination offirst-strike and otherwise destabilizing missiles.

The elimination of first-strike weapons –

those capable of attacking
the adversary’s missile silos and military command centres – would require
an immediate return to single warhead missiles, as well as a de-emphasis
on missile accuracy, payload size, and delivery speed. Of greatest immediate
concern are the MX missiles which are highly accurate as well as extremely
vulnerable, the Mark 12-A “hard-target-kill” warhead deployed on existing
Minuteman ICBMs, the highly accurate and swift Trident II (D-5) missile
(under development) and the Pershing II missile, each of which increases
the gravity of threat to Soviet military facilities, placing the Soviets in a
“launch on warning” status which increases the likelihood of an outbreak
of nuclear war by accident or miscalculation.
2. Elimination of “coupling” doctrines and capabilities tending to erode the
firebreak between nuclear and conventional conflict.

In order to strengthen the nuclear firebreak so as to decrease the like-
lihood that any conventional war would escalate to nuclear war, U.S. forces
should be de-nuclearized by the removal of dual-capable and tactical weap-
ons from forward-base areas and the discontinuance of production of such
weapons. Included in this category are nuclear artillery warheads (W-33,
W-78, W-79) and their dual-capable launchers, Lance, Honest John and
Nike-Hercules, as well as the Joint Tactical Missile system now under de-
velopment. Dual-capable air-launched, ground-launched and sea-launched
(Tomahawk) cruise missiles, which are highly accurate and difficult to detect,
with their corresponding nuclear warheads, should be eliminated and their
production arrested. Finally, ASROC, SUBROC, and Terrier anti-subma-
rine missiles and their nuclear warheads should be destroyed.
3. Removal of conventional “‘trip-wires” which erode the firebreak between
war and peace, and strengthening of norms against interventions.

To reduce the risk of accidental engagement in a superpower conflict
which might result in escalation to nuclear war, offensive conventional forces
should be pulled back or withdrawn from volatile regions such as the Persian
Gulf and the Kola Peninsula. Further, recognizing the potentially deadly

York Times (27 September 1984) A 4. The difference between a bilateral declaration of “no
first use” and a bilateral “no first use” arrangement is most important. A no first use declaration
should be followed by withdrawal of all nuclear weapons which have warfighting rather than
deterrent functions. This would include virtually all short-range nuclear weapons. According
to Paul Warnke, former SALT II negotiator and Director of the Arms Control and Disarmament
Agency, “[slo long as both sides deploy thousands of tactical weapons in close proximity to
the borders that divide the NATO countries from those of WTO, statements by the leaders of
either side that they will not be the first to utilize them are of little practical value”. P. Warnke,
“Should the United States Commit Itself Not to Be the First to Use Nuclear Weapons?” in
F. Blackaby, J. Goldblat & S. Lodgard, eds, No First Use (1984) at 122.

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CONTEMPORARY DETERRENCE STRATEGIES

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connection between Third World intervention and the possibility of nuclear
conflict, the nuclear powers should reaffirm their obligation to refrain from
any intervention, direct or indirect, in the internal affairs of another sove-
reign state that in any way impairs the exercise of its citizens’ right to self-
determination.

The elimination of the most provocative and vulnerable elements of
the nuclear triad, 157 and reliance on a reduced retaliatory nuclear force
posture designed only for deterring nuclear attack, would substantially sta-
bilize and reduce the threat of intentional or accidental nuclear war. In
addition, it would remove the unlawful, escalatory character of the extended
deterrent threat. However, stabilizing and minimizing the deterrent does
not resolve all of the legal difficulties encountered by contemporary deter-
rence policies. An important issue related to targeting remains to be considered.

In order to provide a credible deterrent against attack, each side must
demonstrate to its adversary that a nuclear attack would carry a convincing
possibility of nuclear retaliation of sufficient magnitude to destroy it as a
viable military and economic entity. To create such a deterrent without
aggressively targeting “hardened” military targets, each side would neces-
sarily be forced to target some “soft” industrial and economic recovery
facilities, in addition to facilities more directly connected with the adver-
sary’s war-making efforts. It is true that improvements in technology have
vastly enhanced target discrimination, making control over destruction of
economic and military targets more likely than in the early days of assured
destruction. However, given that the majority of these “soft” targets are
located in or near population centres, it seems inconceivable that a break-
down in deterrence would result in anything less than overwhelming non-
combatant casualties, in serious breach of the law.

The law of war is therefore confronted with a paradoxical trade-off
between two potential defense postures: (1) a stable deterrent, which maxi-
mizes the inhibitions against resort to the use of nuclear weapons but does
so by increasing the degree of threat and thus the seriousness of possible
breach; (2) a more selective strategy which restricts its targets to military
installations but actually increases the likelihood of accidental or preemptive
nuclear atack, either by failing to threaten sufficient retaliatory destruction,
or by provoking the adversary, in times of crisis, to launch its missiles first,
before they are lost. Recalling our earlier conclusion that the only possible
legal claim for deterrence is the avoidance of any use of nuclear weapons,
we must reluctantly resolve the tension in favour of a stable deterrent which
minimizes the likelihood of any use of nuclear weapons, rather than a more

157The term “triad” refers to what is currently the basic stucture of the United States force,

composed of land-based, sea-based and air-launched nuclear tipped missiles.

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discriminating deterrent which creates the illusion of damage control once
nuclear war has begun. A deterrent force most consonant with all nuclear
war avoidance would favour more stable (invulnerable) yet more destructive
(less accurate) submarine-launched missiles, over less stable (more vulner-
able) but less destructive (more discriminate) ICBM and bomber-launched
missiles.

The choice of even this minimal, stable deterrent is, however, truly a
choice of the lesser of two evils. At best, even a minimal deterrent promises
only t6 decrease the likelihood of unlawful nuclear attack by displacing the
assumption that the threatened use of nuclear weapons is a legally acceptable
means of attaining a variety of foreign policy goals. It cannot prevent the
use of nuclear weapons. By definition, any system of offensive deterrence
involves maintaining a “balance of terror” based on both willingness and
capability to inflict unacceptable harm, factors which are constantly subject
to irrationality, accident or miscalculation. In essence, if the letter and spirit
of the law of war are to be observed, mechanisms must be developed to
ensure that nuclear weapons cannot, under any circumstances, be employed
against civilian populations.

B. The Long Term

1. Ballistic Missile Defense?

In March 1983, President Reagan called for a “comprehensive and
intensive” effort to develop anti-ballistic missile systems (ABM) to serve as
“the means of rendering these nuclear weapons obsolete”‘ 158 by providing
a secure defense against strategic nuclear attack. According to preliminary
studies, plans involve the deployment, in this century, of ABM systems
capable of attacking Soviet ICBMs continuously during each of three stages
of flight: hitting boosters within the first five minutes (before they disgorge
their multiple independently-targeted warheads); hitting separate warheads
while in mid-course trajectory; and hitting those warheads which penetrate
the first two layers of defense in a last-ditch, point-blank effort using nuclear
tipped rockets.

Generally, it has been argued that any possibility of successful defense
of American civilian populations would depend on the development of a
ballistic missile defense system (BMD) capable of intercepting the vast ma-
jority of Soviet missiles in the first phase of flight, before their multiple

138President R. Reagan, “President’s Speech on Military Spending and a New Defense”, The

New York Times (24 March 1983) A 20.

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CONTEMPORARY DETERRENCE STRATEGIES

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warheads can be released. Such a system would require laser beam tech-
nology capable of attacking upwards of 2 000 boosters within 300 seconds
of their exit from missile silos and submarine hatches. 59

Arriving at a feasible basing mode for these lasers promises to be a
near-impossible task. A space-based system, involving thousands of sensors
and mirrors deployed at 100-ton orbiting space stations, would be extremely
vulnerable to Soviet attack in the event of a crisis and might, in fact, help
to hasten the outbreak of nuclear war. The alternatives to orbital based
ground-based, airborne, or “pop-up” systems designed to boost
systems –
mirrors into firing position after the enemy missile launch –
are said to
be less capable of intercepting missiles in the early phases of ffight. 160

Even if a suitable basing mode were developed, its operation would
depend on the ability of computer software, which has never been tested
under actual war conditions, to track and control hundreds of thousands of
objects by carrying out billions of operations per second. Then, if the ad-
versary refrained from using decoy missiles and anti-satellite technology to
confuse the system, and it otherwise operated entirely as theoretically con-
ceived, optimistic proponents still expect that there would be “leakage” of
between 5 and 30 per cent. According to a recent study, “best case” leakage
of 5 per cent of current Soviet ballistic warheads would immediately kill up
to one half of the urban population of the United States. Leakage of ten
per cent would kill two-thirds. 161 In both cases, the consequential damage
to the environment would most likely trigger nuclear winter. 62

The foregoing assumes that the BMD operates against existing Soviet
capabilities. It also ignores the existence of cruise missiles, which will likely
destroy BMD ground control assets, even before they have a chance to
defend against incoming ballistic missiles. For all of these reasons, the U.S.
Congressional Office of Technology Assessment recently concluded that the
prospect of such technology operating as envisaged by President Reagan “is
so remote that it should not serve as the basis of public expectation or
national poliCy”. 163 Ambassador Gerard Smith, who negotiated the Anti-
Ballistic Missile Treaty and who is a former director of the Arms Control

159W.E. Burrows, “Ballistic Missile Defense: The Illusion of Security” (1984) 62 Foreign

Affairs 843 at 848.

60K. Gottfried et al., “Reagan’s Star Wars”, excerpted in New York Review of Books (26

April 1984) 47 at 49.

161A. Carter & D.N. Schwartz, eds, Ballistic Missile Defense (1984).
162Sagan, supra, note 27 at 282.
163U.S. Congressional Office of Technology Assessment, Directed Energy Missile Defense in
Space, reprinted in Senate Committee on Foreign Relations, Strategic Defense andAnti-Satellite
Weapons (Washington: Government Printing Office, 1984) 259 at 322.

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and Disarmament Agency, stated even more pointedly: “This strikes me as
having been a cruel illusion to put in the minds of the American people.”‘ 64
The realization that the President’s vision is more of a dream has not,
however, prevented proponents from arguing for a more “limited”, imper-
fect set of BMD systems. The development of near-term BMD technology
is promised to “provide the means for the important lower tiers of con-
ventional defense designed to defend U.S. intercontinental ballistic missiles
(ICBMs), strategic bomber bases, and selected critical command, control,
and communication facilities”. 165 Deterrence, it is argued, would no longer
involve “mutual vulnerability” but instead a “defensive capability to deny
plausibility any Soviet ‘theory of victory”‘. 1 66 Such a deterrent would ensure
Soviet “inability to defeat the United States –
promising a long and po-
tentially unwinnable war which could allow the vastly superior U.S., and
U.S.-allied, military-industrial potential to come into play”.’ 67

These arguments rely on the tenuous assumption that BMD would
somehow render “protracted” nuclear war fightable and winnable by the
United States in the event of deterrence failure. As discussed above, the
leak factor places “safe” conduct of nuclear war far beyond the realm of
plausibility, even with the most advanced BMD technology. BMD thus
provides a false sense of security, while encouraging flood targeting by the
adversary against the urban centres that the plan is supposedly designed to
protect.

Rather than enhancing deterrence, the acquisition of BMD is likely to
be perceived as an effort to gain the capability to strike first against the
Soviet Union and to defend against a ragged Soviet retaliation. This is so
because BMD would be useful only to an attacker, since it would be easily
overcome by a well-executed first strike, but not by a weakened retaliatory
attack. Far from serving its stated humanitarian purposes, BMD represents
an effort to reduce fatalities, and thus the “costs” of nuclear war, for purposes
of controlling Soviet behaviour by more credibly threatening offensive nuc-
lear attack in times of crisis.168

Equally important, for purposes of international law, is the effect which
the so-called “Strategic Defense Initiative” (SDI) is likely to have on the
existing legal arms control regime. The ABM Treaty of 1972, perhaps the

1

ibid. at 57.

‘ 64Prepared statement of Gerard Smith, reprinted in Senate Committee on Foreign Relations,
65C. Gray and K. Payne, “Nuclear Policy and the Defensive Tradition” (1984) 62 Foreign
Affairs 820 at 823.
166Ibid. at 827-8.
1671bid. at 828.
168U.S. Congressional Office of Technology Assessment, supra, note 163 at 318.

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CONTEMPORARY DETERRENCE STRATEGIES

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most important arms control agreement to date, prohibits the development,
testing and deployment of ABM systems or components which are sea-
based, air-based, space-based, or mobile land-based, and flatly bans any
nation-wide system of defense against ballistic missile attack.169 The Reagan
SDI poses so imminent a threat to those signed and duly ratified provisions
that Ambassador Smith concluded in June 1984 that: “We are already in
an anticipatory breach of contract.”‘ 7 0

Beyond the abandonment of the ABM regime, the SDI is likely to mean
the end of all efforts at arms control. The erosion of the important as-
sumption built into the treaty –
that efforts to construct technologically
effective defenses to nuclear attack are futile –
is likely to stimulate an
unrestrained proliferation of both offensive and defensive weapons, as both
sides jockey for the advantage of circumventing each other’s defenses. A
premium in the competition would be placed on large ICBMs, capable of
delivering large numbers of warheads, decoys, and penetration aids, on
difficult-to-detect weapons designed to circumvent BMD altogether, and on
destabilizing weapons such as the Anti-satellite (ASAT) whose purpose is
to impair command, control and communications processes. Such a state
of affairs would make a mockery of existing legal obligations to negotiate
reversal of the arms race toward “complete nuclear disarmament”.’ 71

For all of these reasons, as well as the increased likelihood of nuclear
war by accident or miscalculation which would be caused by reliance on
increasingly complex offensive and defensive technology, the “defensive
transition” cannot be relied upon to deliver its promise of rendering “ob-
solete” the prospect of an illegal use of nuclear weapons. If the principles
of international law are to be observed in the long run, a more stable,
comprehensive solution to the threatened use of nuclear weapons must be
sought.

C. Overcoming Nuclear Deterrence

To the extent that it involves the recognition that nuclear war cannot
be fought or won, and that nuclear weapons may not lawfully continue to
serve as an instrument of foreign policy, a minimal and stable nuclear de-
terrent would represent a step in the right direction. It would, however, only

169Treaty Between the United States ofAmerica and the Union of Soviet Socialist Republics
on the Limitation ofAnti-Ballistic Missile Systems 25 U.S.T. 3435, T.I.A.S. 7503, reprinted in
(1972) 11 I.L.M. at 784, art. V.

’17″U.S. Close to Violating ABM Treaty of Security, Panel of Specialists Says”, The Wash-
‘7’See discussion in note 135, supra.

ington Post (20 June 1984) A 12.

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be a small step, for even a posture of minimal deterrence would remain
overshadowed by the paradoxes created by the attempt to maintain balance
by threatening to do that which would most flagrantly violate our most basic
conceptions of law and morality. As Winston Churchill stated in a speech
to the House of Commons in 1955, as long as nuclear deterrence is the
“guarantor” of human survival “safety will be the sturdy child of terror,
and survival the twin brother of annihilation”.172 In addition, the assump-
tion that any form of deterrence can operate in the long term as a substantial
basis for peace and security is inconsistent with both the lessons of history
and the original rationale of nuclear deterrence. From the beginning of the
atomic era, deterrence has always been viewed as an interim condition 73
whose lack of permanent viability is derived from the fact that every pre-
vious deterrence/balance of power structure throughout the history of great
power relations has ended in collapse and the ensuing use of weapons,
designed to maintain peace, in devastating global war.174

The spectre of nuclear war presents a more fundamental legal challenge
than management of the size and functions of an arsenal for purposes of
reducing the risk of a disastrous breakdown in the system of deterrence. If
the integrity of the moral and legal norms reflected in the law of war is to
remain intact, a legal regime must be constructed to forever eliminate, not
merely control, the possibility of nuclear catastrophe. The task, though by
no account politically simple, is no less than to provide for the elimination
of nuclear threats by developing means to eliminate the weapons themselves.
With the nuclear genie out of the bottle, any legal regime for the aboli-
tion of nuclear weapons must necessarily confront an important structural
weakness in the current internatioinal system: the difficulty of applying the
concept of “balance of power” to a geopolitical situation in which the ac-
cumulation and application of military force is no longer synonymous with
the acquisition of power, international triumph, and national security. As
events of the past thirty-nine years have illustrated, the procurement of
more sophisticated or larger numbers of weapons by each side has only
strengthened the adversary’s resolve to match capabilities, to the ultimate
detriment of the world’s people.

Elimination of the nuclear threat will necessarily require a shift in em-
phasis within the state system, replacing reliance on military force with

’72Quoted in J. Schell, The Fate of the Earth (1982) at 197. See also A. Krass, “The Evolution
of Military Technology and Deterrence Strategy” [1981] Stockholm International Peace Re-
search Institute [SIPRI] Yearbook 19 for a useful discussion of the paradoxes of deterrence.
173B. Brodie, “War in the Atomic Age” in B. Brodie, ed., The Absolute Weapon: Atomic

Power and World Order (1946).

174See, e.g., G. Modelski & P. Morgan, “Understanding Global War”, (Address to the Amer-

ican Political Science Association Annual Convention, Washington D.C., August 1984).

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CONTEMPORARY DETERRENCE STRATEGIES

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improved transnational processes for the maintenance of national security.
The transition to what has been referred to as a “Global Security Policy”‘175
would involve the realization by world leaders that, in the nuclear age, “to
gain limits on the military behaviour of others requires willingness to accept
limits on oneself’. 176

A Global Security Policy includes five specific features. 177 First, it “tries
to prevent the desire for short-range advantage from dominating decisions
at the expense of long-run interests”. Second, it “emphasizes the importance
of providing greatly expanded positive incentives rather than relying largely
on negative military threats as the means to influence other nations’ security
policy and to establish a dependable security order”. Third, it “emphasizes
a positive image of peace which includes more than war prevention” — an
image which integrates the values of peace, human dignity, resource sharing
and protection of the environment. 178 Fourth, the approach “moves beyond
the familiar, singular focus on security for one nation-state”, to an orien-
tation which benefits global citizens on a transnational basis. Finally, a
Global Security Policy recognizes the equal importance of normative and
territorial boundaries.

To build on the measures set out in Part IV(A) designed to promote
minimal and stable deterrence (renunciation of first-use option, non-inter-
vention, and reversal of arms competition), the following are some addi-
tional elements of the legal regime which would help to strengthen norms
of non-intervention and complete the transition from a minimal deterrence
posture to a substantially demilitarized, nuclear-free system of international
relations:
1. Comprehensive transarmament.179

This process would involve confining the role of all military power –

conventional as well as nuclear –

to defense of national territories and

1983)

175R. Johansen, Toward an Alternative Security System (New York: World Policy Institute,
1761bid, at 31.
177Ibid. at 27-30.
’78These are the “World Order Values” which form the core of the search for a just world
order undertaken by contributors to the World Policy Institute’s World Order Models Project
(WOMP). Among the many works available, see in particular- R. Falk & S. Kim, “An Approach
to World Order Studies and the World System”, WOMP Working Paper No. 22 (1982); R.
Falk, A Study of Future Worlds (1975); J. Galtung, The Three Worlds: A Transnational Per-
spective (1980); S. Mendlovitz, ed., On the Creation of a Just World Order (1975); R. Falk, S.
Kim & S. Mendlovitz, eds, Toward a Just World Order, vol. 1 (1982).

’79This term and its meaning are fully discussed in D. Fischer, Preventing War in the Nuclear
Age (1984). See also R. Forsberg, “The Freeze and Beyond: Confining the Military to Defense”
(1983) 1 *World Policy J. 288; and Alternative Defense Commission, Defense Without the Bomb
(1983).

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borders. Aggressive capabilities, foreign bases and alliances would be abol-
ished and replaced with strictly defensive systems such as anti-aircraft, anti-
tank, mines, radar, and non-military means of defense. The current Swiss
system of defense provides a good example.180

2. Increased reliance on non-military methods of dispute resolution and en-
hancement of confidence building measures.

U.S. failure to ratify the judicial settlement provisions of the Law of
the Sea Treaty, refusal to recognize the jurisdiction of the International
Court of Justice in relation to recent Nicaraguan claims, and public accu-
sations of Soviet non-compliance with existing arms control arrangements
(despite the existence of the Standing Consultative Council established by
SALT I to deal with such disputes), represent steps in the wrong direction.
The United States should reaffirm its commitment to encourage the expan-
sion of these arrangements. Specifically, the jurisdiction of the International
Atomic Energy Agency (IAEA) should be strengthened to enable that body
to play a more active and effective role in safeguarding against proliferation
of fissionable materials used in the construction of nuclear weapons. The
establishment of a neutral International Satellite Monitoring Agency would
also contribute greatly, by providing important, impartial information to
ensure compliance with arms control agreements, and to deter clandestine
arms tests or transfers.

3. Increased reliance on international peacekeeping forces.

The creation of permanent local and global peacekeeping forces would
reduce the temptation to resort to force unilaterally and would contribute,
in a way which would minimize the risk of escalation by third party en-
gagement, to control of border violations and other national skirmishes
which might nevertheless arise. Regional peacekeeping forces would also
serve as an important local mechanism for compliance with arms control
and arms transfer agreements. As well, such forces would enhance the pros-
pects for international peace by engendering a sense of international community.

4. Promotion of world authority and cooperation.

The Independent Commission on Disarmament and Security Issues
(“Palme Commission”) recently recommended the following measures re-
lated to strengthening the current United Nations system: achieving agree-
ment between the Third World countries and the permanent members of
the Security Council to ensure observance of the territorial integrity and
political independence of Third World countries; a more active role by the

180D. Fischer, “Invulnerability Without Threat: The Swiss Concept of General Defense”

(1982) 19 J. Peace Research [Oslo] 205.

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CONTEMPORARY DETERRENCE STRATEGIES

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Security Council in pre-empting conflict; greater use of civilian fact finding,
U.N. observers, and U.N. forces in areas of potential conflict; and greater
restraint with respect to use of the Security Council veto power.1 81 Increased
commitment to the United Nations process by all powers, most particularly
by the United States and the Soviet Union, would greatly enhance the de-
militarization process while at the same time maintaining the benefits of
cultural pluralism and self-determination embodied in the concept of the
nation state.

Conclusion

The most fundamental objective of any legal system is the maintenance
of peace and social order. In the international system, law protects against
arbitrariness and chaos in interstate relations. Among the normative obli-
gations most central to the international ordering process are those rules
which, regardless of time or location, prescribe the limits beyond which no
state may transgress in the treatment of innocents caught in political conflict.
Although paradoxes abound in reconciling the imperatives of humanity with
the ends of military ambition in the 1980’s, to renounce the effort is to
neglect the purported ends of the international order and the avowed pur-
poses of all national governments: the protection of human life.

Despite advances in targeting capabilities, contextual analysis yields the
conclusion that the initiation of nuclear war, either in the first instance or
through the resulting uncontrolled escalation, would be fundamentally in-
consistent with the letter and spirit of the law of war. Nuclear war might
indeed cause the end of humanity, making it, whether for “offensive” or
“defensive” purposes, a form of self-inflicted genocide which could scarcely
find “legal justification” in a system tailored to the exigencies of humanity.

To challenge the legality of nuclear war is to restate an already vexing
moral, scientific and political problem. Indeed, virtually everyone must by
now be in accord with President Reagan who, despite having presided over
the largest peacetime military build-up in American history, has often stated
that “nuclear war can never be won and must never be fought”.

The true legal challenge presented by nuclear weapons is to articulate
the implications flowing from the illegality of nuclear war. First, and most
important, is that the prevention of any use of nuclear weapons must be
recognized as the over-arching imperative of the law of war. Of course, there
are many means by which nuclear war might possibly be avoided, but there

‘8 11ndependent Commission on Disarmament and Security Issues, Common Security: A

Blueprint for Survival (1982).

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is only one way to guarantee that it is prevented. The weapons which make
it possible must be eliminated.

In order to respond meaningfully to prevailing political realities, how-
ever, the law must develop a regime for compliance which, without trig-
gering the undesired breach, poses a set of interim measures, each of which
represents sustained progress toward the next step in the direction of the
ultimate goal of complete denuclearization. It is in this remedial, solution-
oriented role that legal analysis might be distinguished from even important
moral and scientific enquiry.

The initial step in the process of building a legal regime for nuclear
weapons requires a clear consideration and circumscription of the role of
nuclear weapons. “Extended deterrent” capabilities and threats designed to
facilitate the pursuit of geopolitical interests by threatening nuclear response
to lesser provocations are unlawful, since they are based on willingness to
initiate nuclear war in violation of the cardinal principles of discrimination
and proportionality. The role of nuclear threats must unequivocally be con-
fined to dissuasion of nuclear attack by means of a promise of unacceptable
retaliation..

A stable deterrent is not, however, the end; it would merely facilitate
the next set of steps. The final goal is to create an international system of
security and dispute resolution which would serve as the foundation for
complete dismantling of all nuclear arsenals.