In 1868, the Imperial Cabinet of Russia convened an International Commission to issue a Declaration on the laws of war. In its Preamble, the St. Petersburg Declaration stated,
The only legitimate object which states should endeavor to accomplish during war is to weaken the military forces of the enemy.
The League of Nations and the International Committee of the Red Cross returned to this topic in 1920, after the carnage of the First World War. The character of warfare, the President of the ICRC told the League, “should be a struggle between armies and not between populations.”
The Second World War was far more brutal to noncombatants than the First, including the use of fire bombing and two nuclear detonations against cities, after which it was discovered that radiation posed a severe threat to the survivors. Under the nuclear shadow, combat evolved from large-scale conventional campaigns in Korea, Vietnam, Afghanistan, and Iraq to low-intensity, unconventional and limited conventional wars.
These wars have placed a heavy toll on noncombatants, who are taking a horrific beating in Syria, Afghanistan, Sudan, eastern Ukraine, Gaza, and wherever ISIL rears its hydra-heads. In the last decade alone, cluster bombs have reportedly been used against civilians by Syria, Israel, Hezbollah, Sudan, Russia, Ukraine, Libya, Saudi Arabia, and Thailand. All violence directed against noncombatants is local, but the demise of borders and governance has growing international ramifications. Displaced humanity and refugee flows have doubled in the last two decades.
Paradoxically, concerns over the humanitarian consequences of using nuclear weapons have grown alongside the carnage of unconventional and limited conventional warfare. There are several reasons for this paradox. Nuclear disarmament campaigns fill vacuums and counter strategic modernization programs. The snail-like pace of U.S. and Russian strategic arms reductions, the absence of negotiations on deeper cuts, and growing Chinese, Pakistani, Indian, and North Korean stockpiles warrant rejoinders.
Enter the Humanitarian Pledge movement, which seeks to “stigmatize, prohibit and eliminate nuclear weapons in light of their unacceptable humanitarian consequences and associated risks.” In addition, this initiative calls on states possessing nuclear weapons to take “concrete interim measures to reduce the risk of nuclear weapons detonations.” Over 100 nations have endorsed this agenda. Pope Francis and other religious leaders have given it a powerful moral impulse.
Attempts to conform targeting plans for nuclear weapons to the laws of war have been sporadic and unsuccessful. The U.S. Secretary of Defense who tried hardest was Robert McNamara. At a commencement address in Ann Arbor in 1962, McNamara tried to enlist the Kremlin in a mutual pledge not to strike cities:
The U.S. has come to the conclusion that, to the extent feasible, basic military strategy in a possible general nuclear war should be approached in much the same way that more conventional military operations have been regarded in the past. That is to say, principal military objectives in the event of an atomic war … should be the destruction of the enemy’s military forces, not of his civilian population. In other words, we are giving a possible opponent the strongest imaginable incentive to refrain from striking our own cities.
The Kremlin never picked up the phone and, besides, McNamara’s formulation couldn’t withstand the orthodoxy of U.S. nuclear targeting, which included command centers, war-supporting industry and other targets that were located within or nearby cities.
Yields can be downsized and limited, very small target sets can be planned, and a demonstration shot can signal strong interest in halting an adversary’s advance and limiting damage. But all of these limited options can open the Gates of Hell unless escalation can be controlled.
In 1996, the International Court of Justice almost closed the door on any use of nuclear weapons, no matter how limited, on humanitarian grounds. The Court unanimously held that
And what about even a singular use to warn an adversary in circumstances bearing on the very survival of the state? Here, the Court split seven to seven:
The threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law. However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defense, in which the very survival of a State would be at stake.
This finding barely leaves room for limited use in extreme cases but, even here, this opening closes without assurance of escalation control. Lower-yield weapons and limited-use options pursued to avoid greater humanitarian consequences lose their purpose in the absence of escalation control.
As long as nuclear deterrence is predicated on war-fighting strategies, there are no good answers to the questions raised by the humanitarian-consequence movement — whatever the size of the arsenal. Small arsenals that seek to deter by killing cities are contrary to the humanitarian laws of war. Nuclear arsenals that are climbing into three digits fail worse, and arsenals that stretch into four digits fail the worst of all.
The only way that arsenals in being can be squared with humanitarian laws of war is if they are never used pending their elimination. Avoiding the next use of a nuclear weapon obligates states that possess these weapons to engage diplomatically to reduce risk and stockpiles. There are no current, substantive, bilateral engagement between states that target each other with nuclear weapons. States that don’t talk to each other cannot be expected to excel at nuclear escalation control.
Michael Krepon is Co-Founder of the Stimson Center. This piece originally ran in Arms Control Wonk on October 15, 2015.