Abstract: In 2013, the Obama Administration’s “Nuclear Employment Strategy” guidance announced that all war plans and operations would be “consistent with the fundamental principles of the Law of Armed Conflict” (LOAC). The Trump Administration’s 2018 Nuclear Posture Review repeated this commitment. The literature on nuclear strategy and deterrence in political science however, has either ignored these legal requirements or misunderstood them. The legal literature on nuclear weapons, however, has largely ignored the technical revolution regarding improved accuracy and lower-yield nuclear weapons and the different strategic contexts in which the U.S. might contemplate nuclear use. This paper analyzes how proper application of the Law of Armed Conflict should constrain U.S. nuclear doctrine and war planning and how knowledge of strategic considerations is fundamental to proper legal analysis. We argue that the principle of proportionality can permit “counter-force” targeting— most clearly when such attacks can prevent or significantly reduce the expected damage to U.S. and allied populations with lower foreign collateral damage. We also argue that the legal requirement to take “feasible precautions” to protect non-combatants means the U.S. must use conventional weapons or the lowest yield nuclear weapons possible in any counterforce attack. Finally, we contend that the prohibition against deliberate targeting of civilians has gained the status of customary international law and that the U.S. government should therefore reverse its traditional position and reject the doctrine of “belligerent reprisal” against foreign civilians. This prohibition means that it is illegal for the United States, contrary to what is implied in the 2018 NPR and explicitly maintained by prominent U.S. Air Force lawyers, to either intentionally target civilians in reprisal to a strike against U.S. or allied civilians, or launch attacks against legitimate military targets if the intent to is cause incidental civilian harm.
The speaker, Professor Scott Sagan, is Caroline S.G. Munro Professor of Political Science, the Mimi and Peter Haas University Fellow in Undergraduate Education, and Senior Fellow at the Center for International Security and Cooperation and the Freeman Spogli Institute at Stanford University
His non-presenting co-author is Professor Allen Weiner, Director of the Stanford Program in International and Comparative Law and Co-director of the Stanford Center on International Conflict and Negotiation at Stanford University
The discussant is Professor Sir Adam Roberts KCMG FBA, Emeritus Professor of International Relations at Oxford University, Senior Research Fellow in Oxford University’s Department of Politics and International Relations, and Emeritus Fellow of Balliol College
The panel will be chaired by Dr Janina Dill, the John G. Winant Associate Professor of U.S. Foreign Policy, Professorial Fellow at Nuffield College, and Co-Director of the Oxford Institute for Ethics Law and Armed Conflict.
This event is co-hosted by the Oxford Institute for Ethics, Law and Armed Conflict (ELAC) and the Centre for International Studies (CIS)