Preventing Nuclear War: Legal Obligations for an Imperiled Planet
Hiroshima Children's Peace Monument (Pixabay/ArminEP)
Preventing Nuclear War: Legal Obligations for an Imperiled Planet

“Scholars build the structure of peace in the world.”

Babylonian Talmud; Order Zera’im, Tractate Berakoth, IX

Background of the Problem

Back in the late 1960s, at Yale Law School and Princeton University’s Department of Politics, a series of joint-programs was developed under the heading of World Order Studies. This advanced academic series focused upon the tangibly interrelated planetary dangers of nuclear war, overpopulation, human rights deprivation (injustice) and what was then called “ecological spoliation.” To the extent that participating scholars in the “World Order Models Project” (WOMP”) were asked to prioritize these presumptively existential threats, nuclear war avoidance was always ranked at the top.

Were these thinkers correct in their early rank-ordering? As this is not a question of fact, but one of personal or subjective judgment, the question is per se meaningless. Nonetheless, it remains obvious that remediating the military nuclear threat is not only indispensable to planetary survival, it is antecedent to any broader global “victories” for justice and climate rescue. Also obvious is that nuclear war avoidance now occupies too little public or media attention. Even now, moreover, the former Trump presidency’s multiple derelictions on this problem remain under-reported.

With all this in mind, Professor Louis René Beres, an original member of Princeton WOMP and the author of many law-related books and articles concerning nuclear war avoidance, clarifies where we are heading on “spaceship earth” and what still needs to be done (both strategically and legally) to avert an atomic war “apocalypse.”

Realism as an Intellectual Calculation

In the best of all possible worlds, scholars might still speak reasonably about “nuclear disarmament” or “denuclearization.” Plainly, however, we don’t yet live in such a law-abiding world, and realistic peace strategies still need to entail various fundamental compromises. On specific matters of nuclear war avoidance, this means, inter alia, refining threat-based strategies of “escalation dominance” and nuclear deterrence.

Prime facie, these are intellectual matters. In essence, nuclear deterrence is a “game” that certain major world leaders simply will have to play. These leaders can choose to learn this complex game purposefully and skillfully or inattentively and inexpertly. As the correct choice is obvious, calculably gainful plays will be based upon variously enhanced capacities for threat assessment and strategic decision. In the final analysis, as we ought already to have learned from history, “winning” will not be about supremacy and dominance, but rather law-based cooperation and continuous de-escalation.

All this will require high-quality scholarship. To begin, pertinent inquiries must be grounded in logic and scientific–method, not political clichés or empty witticisms. Going forward, controlling nuclear proliferation will be increasingly important and overriding. Under no circumstances should any sane and capable scholar or policy-maker ever recommend further proliferation of nuclear weapons.

On its face, such a starkly confused endorsement could only represent the reductio ad absurdum of all possible intellectual misjudgments.

Nuclear proliferation has been dealt with by competent nuclear strategists for decades, by authentic thinkers who well understand that any alleged benefits of nuclear spread would be overridden by unimaginably staggering costs. Most obviously, as this writer has indicated in more than a dozen “world order books” since 1971, the correspondingly expanded risks of inadvertent nuclear war, accidental nuclear war, nuclear war by irrationality/ coup d’état and nuclear war by miscalculation would be indisputable.

To date, this has been an incontestable presumption. Foreseeably, it will not change. The “Westphalian” system of international relations and international law first bequeathed by treaty in 1648 remains fundamentally unchanged. Still, it is rooted  in anarchy and worsened by chaos.

Equilibrium as Facile Metaphor

Historically, the idea of a balance of power – an idea of which the nuclear-age balance of terror is a variant – has never been more than a facile metaphor. In fact, it has never had anything to do with ascertaining true equilibrium. As such a “balance” is always a matter of individual and more-or-less subjective perceptions, adversary states can never be sufficiently confident that strategic circumstances are oriented in their favor. In consequence, each side in a Still-Westphalian world order must perpetually fear that it will be left behind. Accordingly, the continual search for balance only produces ever wider patterns of insecurity, inequality and disequilibrium.

At the start of the Cold War, the United States first began to codify rudimentary orientations to nuclear deterrence and nuclear war. At that time, the world was tightly bipolar and the clear enemy was the Soviet Union. Tempered by a shared knowledge of the horror that temporarily ceased in 1945, each superpower had understood a conspicuously core need for expanding global cooperation (to wit, the United Nations) as necessary adjunct to conflict preparedness.

The Emergence of Strategic Nuclear Doctrine

With the start of the nuclear age, American national security was premised on grimly primal threats of “massive retaliation.” Over time, especially during the Kennedy years, this bitterly corrosive policy was softened by subtler and more nuanced threats of “flexible response.” Along the way, a coherent and generalized American strategic doctrine was crafted in increments to accommodate almost every conceivable kind of adversary and adversarial encounter.

Systematic and historically grounded, this doctrine was developed self-consciously and with very deliberate prudence. In its actual execution, however, much was left to “seat-of-the-pants” calculations. In this regard, the 1962 Cuban missile crisis speaks for itself.

Strategic doctrine, earlier generation defense intellectuals had already understood, is a “net.” Only those who cast, can expect to catch. Nonetheless, even the benefits of “casting” would remain subject to various considerations of individual human personality. In the terms of professional strategic thinkers, there would always remain an “idiosyncratic factor.”

Although, for a time – especially immediately after collapse of the Soviet Union – the world became increasingly multipolar, we are now witnessing the start of a second cold war. This time, however, there will likely be more conspicuous points of convergent interest and prospective cooperation between Washington and Moscow. In principle at least, in view of current mutual concern for controlling Jihadist terrorism, “Cold War II” could eventually offer an improved context for identifying overlapping strategic interests.

Yet, even after the continuation in force of New START between the U.S. and Russia, Moscow continues to reinvigorate its production of intercontinental ballistic missiles, and ICBM supporting infrastructures. In part, this represents a predictable Russian response to fears that America may be expanding its plans for expanded ballistic missile defense in Europe, and (as corollary) for enlarging NATO blueprints to advance variously aggressive strategies of “encirclement.”

Obvious Areas of Nuclear Concern

At this moment. strategic planners should be thinking especially about already-nuclear North Korea and Pakistan and a still prospectively nuclear Iran. Among other issues, Tehran’s repeated calls for “removing” Israel as a state are unambiguously exterminatory; in law, they also represent an “incitement to genocide.” Looking ahead, military nuclear developments in North Korea, Pakistan and Iran could prove synergistic,  circumstances that are largely unpredictable and potentially overwhelming.

There will also be legal considerations of justice. Nullum crimen sine poena; “No crime without a punishment,” was a key principle of justice reaffirmed at Nuremberg, in 1946. This principle likely originated in the Hebrew Bible and the Lex Talionis or law of exact retaliation.

The Trump-brokered Abraham Accords had no discernible effects upon nuclear war in the Middle East. If anything, Iran was made more belligerent by the Accords’ design to diminish Iranian power, and certain major Sunni Arab states (probably Egypt and/or Saudi Araba) feel new incentives to nuclearize themselves. In all these uncertain cases, there will emerge more-or-less plausible issues of enemy irrationality. In such “special” situations, ones where leadership elites in Pyongyang, Islamabad, Tehran or elsewhere might sometime value presumed national or religious obligations more highly than national physical survival, the logic of deterrence could fail.

Any such fearful scenario is “probably improbable,” but, is by no means inconceivable. This hesitancy-conditioned probability calculation is effectively mandated by assorted fixed limitations of science. More precisely, one can never speak reliably about the probability of unique events (all probability judgments must be based upon the determinable frequency of past events). Fortunately, of course, there has never been a genuine nuclear war.

Again, important for leaders to understand will be various possible interactions or synergies between changing adversaries and their particular ties to China, Syria and Russia. In managing such strategic threats, a new question should arise: Will Cold War II help our imperiled planet, or hurt it even more?

Such queries will represent intellectual questions, not political ones. Above all, they will need to be addressed at suitably analytic levels.

Sub-national or Terrorist Threats

Strategic policies will have to deal with a variegated assortment of sub-national threats of WMD terrorism. Until now, insurgent enemies were sometimes able to confront states with serious perils and in assorted theatres of conflict, but they were never really capable of posing any catastrophic hazard to a nation’s homeland. Now, however, with the steadily expanding prospect of WMD-equipped terrorist enemies – possibly, in the future, even well-armed nuclear terrorists– humankind could have to face a strategic situation that is prospectively dire and historically sui generis.

To face any such unprecedented and portentous situation, America’s president will need to “arm” themselves with antecedent nuclear doctrine and policies. By definition, such doctrine and policies should never represent “seat of the pants” reactions to ad hoc threats. Rather, because generality is a trait of all serious meaning in science, such doctrine and policies will have to be shaped according to broad categories of strategic threat. In the absence of such previously worked-out conceptual categories, human responses are almost certain to be inadequate or worse.

Rationality and Non-Rationality

From the start, all strategic policies have been founded upon some underlying assumption of rationality. We humans have always presumed that our enemies, states and terrorists, will inevitably value their own continued survival more highly than any other preference or combination of preferences. But this core assumption can no longer be taken for granted.

Expressions of decisional irrationality could take various different and overlapping forms. These forms include a disorderly or inconsistent value system; computational errors in calculation; an incapacity to communicate efficiently; random or haphazard influences in the making or transmittal of particular decisions; and the internal dissonance generated by any structure of collective decision-making (i.e., assemblies of individuals who lack identical value systems and/or whose organizational arrangements impact their willing capacity to act as a single or unitary national decision maker).

Confronted with Jihadist enemies, states and terrorists, world leaders must quickly understand that our primary threats to retaliate for first-strike aggressions could sometime fall on deaf ears. This holds true whether we would threaten massive retaliation (MAD), or instead, the more graduated and measured forms of reprisal termed nuclear utilization theory (NUT).

Ultimately, sensible. nuclear doctrine must recognize certain critical connections between law and strategy. From the formal standpoint of international law, certain expressions of preemption or defensive first strikes are known as anticipatory self-defense. Expecting possible enemy irrationality, when would such protective military actions be required to safeguard the human homeland from diverse forms of WMD attack?

This is an all-important question to be considered.

There is more. Recalling that international law is part of the law of the United States, most notably at Article 6 of the Constitution (the “Supremacy Clause”) and at a 1900 Supreme Court case (the Pacquete Habana), how could anticipatory military defense actions be rendered compatible with both conventional and customary obligations? This is a critical question to be raised.

From the standpoint of international law, it is necessary to distinguish preemptive attacks from “preventive ones.” Preemption is a military strategy of striking first in the expectation that the only foreseeable alternative would be to be struck first oneself.  A preemptive attack is launched by a state that believes enemy forces are about to attack.  A preventive attack, on the other hand, is not launched out of any genuine concern about “imminent” hostilities, but rather for fear of some longer-term deterioration in a prevailing military balance.

In a preemptive attack, the length of time by which the enemy’s action is anticipated is presumptively very short; in a preventive strike, the anticipated interval is considerably longer. A related problem here for the United States and allies is not only the practical difficulty of accurately determining “imminence,” but also the problems of postponement. To the point, delaying a defensive strike until an imminent threat would be tangibly ascertainable could invite existential harms. A state’s resort to “anticipatory self-defense” could be nuclear or non-nuclear, and be directed at either a nuclear or non-nuclear adversary.

Any such resort involving nuclear weapons on one or several sides could prove catastrophic.

Nuclear Targeting Issues

There is more. World leaders must understand that any proposed national strategic doctrine will need to consider and reconsider key issues of nuclear targeting. Relevant operational concerns here would concern vital differences between the targeting of enemy civilians and cities (so-called “counter value” targeting) and targeting of enemy military assets/infrastructures (so-called “counterforce” targeting). Most national leaders still don’t realize that the actual essence of “massive retaliation” and MAD was always an unhidden plan for counter value targeting.

At first glance, any such partially-resurrected doctrine could sound barbarous or at least inhumane, but if the alternative were less credible systems of nuclear deterrence, certain explicit codifications of counter value posture might still become the best way to prevent millions of civilian deaths – i.e., deaths from nuclear war and/or nuclear terrorism. Neither preemption nor counter value targeting could ever guarantee absolute security for Planet Earth, but it is nonetheless imperative that we put serious strategic thinkers to work on these and other critically-related nuclear warfare issues. Under no circumstances should these policies ever be fashioned by “trained specialists” in marketing and public relations.

Quo Vadis

The first time that a world leader will have to face an authentic nuclear crisis, his or her national response should flow seamlessly from broad and previously calibrated strategic doctrine. It follows that national leaders should already be thinking carefully about how this complex doctrine could best be shaped and articulated. Whatever the particulars, these leaders should acknowledge at the outset the broadly systemic nature of the global security problem.

There is one final summarizing aspect of nuclear war avoidance. This is the continuously-intersecting subject matter of law. Whatever strategic imperatives can be identified, national leaders with nuclear weapons access or authority must be continuously constrained by binding principles of international law. These compelling principles concern all elements of the law of armed conflict or humanitarian international law, and various peremptory anti-genocide norms of the international law of human rights. At the same time, treaty law among sovereign states will never be suitably self-enforcing, and expectations of pacta sunt servanda will likely still fall upon largely deaf ears.

Going forward, a planetary system of law and power management that seeks to avoid nuclear war must recognize another significantly underlying axiom: As egregious crimes under international law, war and genocide need not be mutually exclusive. On the contrary, war could sometimes be undertaken as an especially “efficient” manner of national, ethnical, racial or religious annihilation. When the war in question is a nuclear one, the argument becomes self-evident and unassailable.

A final thought dawns. Our planet displays the same fragility an individual human life. Just as a person can perish because of a single miscalculation, misjudgment or accident, so too can the world as a whole be subject to singular error. In the final analysis, microcosm and macrocosm are both made of ashes, and ashes signify elements of incomparable importance. Most important here is that neither the individual person nor the individual state can ever achieve safety at the deliberate expense of designated others.

In world politics and world law, Realpolitik is inevitably a prescription for despair. Left to its traditional endpoints of conflict, war, terrorism and genocide, this time-dishonored dynamic, worsened by ongoing transition from anarchy to chaos, could propel entire continents toward irrecoverable nuclear war. There is likely still time for rescue, but only if humankind can first finally acknowledge the global survival obligations of intellect or mind.

In the end, our collective dignity and law-based avoidance of a nuclear war cannot depend upon a system of unceasing reciprocal threats.  What will be needed instead is some form of self-expanding system of global governance, a legal system rooted in the overriding “oneness” of humankind. This system will depend, in turn, on the quality and primacy of disciplined analytic thought.

For the moment, a world legal order based on credible threats of deterrence remains preferable to one willing to accept more tangible nuclear war risks – that is, a system functioning on behalf of traditional “sovereign prerogative” and “expansive national power.” Over time, however, such an expressed preference is destined to fall into an incoherent heap of catastrophic consequences. It follows that humankind’s only rational path to nuclear war avoidance lies in self-consciously intellectual/scientific efforts at global governance. Though this recommendation will first appear naïve and visionary, it is time to recall Italian film director Federico Fellini’s most extraordinary insight: “The visionary is the only realist.”

 

Louis René Beres (Ph.D., Princeton, 1971) is the author of many major books and articles on nuclear strategy and nuclear war, including early publications on nuclear terrorism. His work has appeared in many law journals, in Special Warfare and Parameters, publications of the U.S. Department of Defense, and in the DOD journals The War Room (US Army War College) and Modern War Institute (West Point). Dr. Beres has also published in International Security (Harvard); Harvard National Security Journal (Harvard Law School); World Politics (Princeton); Studies in Conflict and Terrorism; Armed Forces and Society; Bulletin of the Atomic Scientists; Yale Global Online (Yale); The New York Times; The Jerusalem Post; Daily Princetonian; Oxford University Press (Oxford Yearbook on International Law and Jurisprudence); American Political Science Review; American Journal of International Law; JURIST; Israel Journal of Foreign Affairs; The Brown Journal of World Affairs; and International Journal of Intelligence and Counter-Intelligence. In Israel, he served as Chair of Project Daniel, a senior “brain trust” on Israeli nuclear strategy (PM Sharon, 2003). Professor Beres was born in Zürich, Switzerland, at the end of the World War II.

 

Suggested citation: Louis René Beres, Preventing Nuclear War: Legal Obligations for an Imperiled Planet, JURIST – Academic Commentary, July 29, 2021 https://www.jurist.org/commentary/2021/07/louis-beres-nuclear-war/.


This article was prepared for publication by Khushali Mahajan, a JURIST staff editor. Please direct any questions or comments to her at commentary@jurist.org


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