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.
Scott D. Sagan is the 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. He also serves as Chairman of the American Academy of Arts and Sciences’ Committee on International Security Studies. Before joining the Stanford faculty, Sagan was a lecturer in the Department of Government at Harvard University and served as special assistant to the director of the Organization of the Joint Chiefs of Staff in the Pentagon. Sagan has also served as a consultant to the office of the Secretary of Defense and at the Sandia National Laboratory and the Los Alamos National Laboratory.
Sagan is the author of Moving Targets: Nuclear Strategy and National Security (Princeton University Press, 1989); The Limits of Safety: Organizations, Accidents, and Nuclear Weapons (Princeton University Press, 1993); and, with co-author Kenneth N. Waltz, The Spread of Nuclear Weapons: An Enduring Debate (W.W. Norton, 2012). He is the co-editor of Learning from a Disaster: Improving Nuclear Safety and Security after Fukushima (Stanford University Press, 2016) with Edward D. Blandford and co-editor of Insider Threats (Cornell University Press, 2017) with Matthew Bunn. Sagan was also the guest editor of a two-volume special issue of Daedalus: Ethics, Technology, and War (Fall 2016) and The Changing Rules of War (Winter 2017).
Recent publications include “Armed and Dangerous: When Dictators Get the Bomb” in Foreign Affairs (November/December 2018); “Not Just a War Theory: American Public Opinion on Ethics in Combat” with Benjamin A. Valentino in International Studies Quarterly (Fall 2018); The Korean Missile Crisis” in Foreign Affairs (November/December 2017); “Revisiting Hiroshima in Iran: What Americans Really Think About Using Nuclear Weapons and Killing Noncombatants” with Benjamin A. Valentino in International Security (Summer 2017); and “Atomic Aversion: Experimental Evidence on Taboos, Traditions, and the Non-Use of Nuclear Weapons” with Daryl G. Press and Benjamin A. Valentino in the American Political Science Review (February 2013).
In 2018, Sagan received the Andrew Carnegie Fellowship from the Carnegie Corporation of New York. In 2017, he received the International Studies Association’s Susan Strange Award which recognizes the scholar whose “singular intellect, assertiveness, and insight most challenge conventional wisdom and intellectual and organizational complacency" in the international studies community. Sagan was also the recipient of the National Academy of Sciences William and Katherine Estes Award in 2015, for his work addressing the risks of nuclear weapons and the causes of nuclear proliferation. The award, which is granted triennially, recognizes “research in any field of cognitive or behavioral science that advances understanding of issues relating to the risk of nuclear war.” In 2013, Sagan received the International Studies Association's International Security Studies Section Distinguished Scholar Award. He has also won four teaching awards: Stanford’s 1998-99 Dean’s Award for Distinguished Teaching; Stanford's 1996 Hoagland Prize for Undergraduate Teaching; the International Studies Association’s 2008 Innovative Teaching Award; and the Monterey Institute for International Studies’ Nonproliferation Education Award in 2009.
Allen S. Weiner, JD ’89, is an international legal scholar with expertise in such wide-ranging fields as international and national security law, the law of war, international conflict resolution, and international criminal law (including transitional justice). His scholarship focuses on international law and the response to the contemporary security threats of international terrorism, the proliferation of weapons of mass destruction, and situations of widespread humanitarian atrocities. He also explores assertions by states of “war powers” under international law, domestic law, and just war theory in the context of asymmetric armed conflicts between states and nonstate armed groups and the response to terrorism. In the realm of international conflict resolution, his highly multidisciplinary work analyzes the barriers to resolving violent political conflicts, with a particular focus on the Israeli-Palestinian conflict. Weiner’s scholarship is deeply informed by experience; he practiced international law in the U.S. Department of State for more than a decade advising government policymakers, negotiating international agreements, and representing the United States in litigation before the International Criminal Tribunal for the former Yugoslavia, the International Court of Justice, and the Iran-United States Claims Tribunal.
Senior Lecturer Weiner is director of the Stanford Program in International and Comparative Law and co-director of the Stanford Center on International Conflict and Negotiation. Before joining the Stanford Law School faculty in 2003, Weiner served as legal counselor to the U.S. Embassy in The Hague and attorney adviser in the Office of the Legal Adviser of the U.S. Department of State. He was a law clerk to Judge John Steadman of the District of Columbia Court of Appeals.