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Legality of Nuclear Demonstration Shots in Wartime

I’m very pleased to host a guest post by Theodore Richard, an attorney with the United States Strategic Command (USSTRATCOM).  The piece is on the fascinating topic of “nuclear demonstration shots” during armed conflict.  I confess that I had never heard of this concept.  In the piece, the author argues that such demonstration shots are, in theory, not in violation of international law.  I’ll jump in in the comments section with some thoughts and questions, and of course I encourage others to do the same, in a collegial and engaging manner.

The author wishes to make it clear that the views expressed in this article are solely those of the author and do not reflect the official policy or position of the DoD or the U.S. Government.

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Legality of Nuclear Demonstration Shots in Wartime

By Theodore Richard

 Dr. Justin Anderson posted an article and follow up about the application of the laws of war to the potential use of nuclear weapons.  One point he made was that not every potential use of nuclear weapons would have catastrophic humanitarian consequences.  He provided examples, specifically identifying a high altitude demonstration shot as having limited humanitarian consequences.

This example, however, generates a question about the legality of potential nuclear demonstration shots.  Could it be possible to interpret the 1963 Limited Test Ban Treaty (LTBT) as prohibiting wartime use of nuclear weapons, including demonstration shots?  Neither the United States nor the Soviet Union held such a view during the Cold War.  In the early 1980s, the Washington Post reported that in the event of a Soviet invasion, NATO contemplated whether its “first use” of a nuclear weapon in response should be a demonstration shot detonated over empty water to show resolve.

At a glance, the first paragraph of the LTBT might appear to support the prohibition of this or any demonstration shot.  It says, “Each of the Parties to this Treaty undertakes to prohibit, to prevent, and not to carry out any nuclear weapon test explosion, or any other nuclear explosion, at any place under its jurisdiction or control: … in the atmosphere; beyond its limits, including outer space; or under water, including territorial waters or high seas… .”

The treaty, however, does not support that interpretation when looking at the entire document, including its historical background.  The complete reading, rather than an assessment of isolated text, is necessary to understand the treaty’s meaning.  Article 31 of the Vienna Convention on the Law of Treaties holds that a treaty is to be interpreted in accordance with the plain meaning of terms, in their context, and in light of the treaty’s object and purpose.  The United States and Soviet position in 1963 was that the treaty prohibited testing, not wartime use.  The treaty’s scope is limited in the title, which establishes that the treaty’s object and purpose is limited to testing.  The treaty’s text then further defines the prohibition as to testing within the atmosphere, outer space, or the oceans.

President Kennedy made this point clear in 1963, when he explained the LTBT to the nation.  He clarified that the LTBT only restricted nuclear testing.  The treaty would not “mean an end to the threat of nuclear war.  It will not reduce nuclear stockpiles; it will not halt the production of nuclear weapons; it will not restrict their use in time of war.”

Although Secretary of State Dean Rusk and the White House Special Counsel Ted Sorensen thought that applying the LTBT to wartime use was “far-fetched,” others were concerned that the LTBT might be read in a way to prohibit wartime use. Ultimately, the United States asked for the Soviet position on the question.  Soviet Foreign Minister Gromyko was presented with the “possibility that Article One might be read to outlaw use of nuclear weapons in war. Gromyko looked baffled. He said ‘this treaty deals with the prohibition of nuclear tests in three environments. Of course it is not a prohibition of nuclear weapons or weapons in general, although the USSR is in favor of general and complete disarmament. The scope of the treaty is self-explanatory.’”

Similarly, Secretary Rusk told the Joint Chiefs of Staff in August 1963, “Article I of the treaty in no way inhibited our ability to use nuclear weapons in either general or limited hostilities and pointed out that this had been made categorically clear in the President’s speech, the Secretary’s speech at the time of signing the treaty, the President’s message transmitting the treaty to the Senate, and the Secretary’s testimony before the Foreign Relations Committee.  It was not a ‘ban the bomb’ treaty.  Mr Harriman stated that, when he had raised the subject with Gromyko, the latter had appeared to be baffled as to our reason for raising the question.”

Could other treaties limit nuclear demonstration shots during wartime?  They were not prohibited by the 1899 or 1907 Hague Conventions, nor by the 1949 Geneva Conventions.  The other potential source would be the 1977 Additional Protocol I to the Geneva Conventions, but it was negotiated with the understanding that it applied only to conventional weapons.  Even if it did apply, it would not necessarily prohibit a demonstration or warning shot where neither the adversary nor a civilian population was actually affected because such a shot would not rise to the level of an attack under Article 49.

If the concern relates to an electromagnetic pulse (EMP) generated from the blast adversely impacting civilians, then Article 52(2) of Additional Protocol I would require the EMP effects to be directed against a legitimate military objective; Article 57 would require an attacker to take feasible precautions to avoid civilian loss of life and property damage; and Article 51(5)(b) would require the effects be proportional (meaning that the expected loss of civilian life, injury to civilians, and damage to civilian objects cannot be excessive in relation to the concrete and direct military advantage anticipated from the EMP).

While the United States has rejected Additional Protocol I for ratification and rejects the applicability of its new rules, it applies fundamental principles of the law of war to nuclear weapon use.  Thus, the United States would still evaluate demonstration shots for compliance with longstanding, fundamental rules of warfare.  Wartime demonstration shots would not be prohibited by any currently existing treaty unless they otherwise violate the law of war.

Is the U.S.Complying with the JCPOA?

One often reads complaints by Iranian officials, and by the Iranian public, that the U.S. is not complying with the commitments it undertook in the JCPOA to ease economic sanctions on Iran in exchange for Iran’s compliance with its JCPOA commitments to limit its nuclear program.  This got me wondering whether this is in fact the case.

As far as I can tell, the U.S. has in fact complied with all of its specifically delineated sanctions-lifting commitments that are due for compliance at the present stage of the JCPOA’s schedule. This explanatory document released by the U.S. Treasury provides a detailed review of the specific sanctions-lifting actions the U.S. has taken, and their relationship to the JCPOA.  I haven’t seen any commentator seriously call into question this recitation of what the U.S. government has done, nor have I seen any persuasive allegations that the U.S. has not complied with the letter of its commitments under the JCPOA to this point.

Rather, what seems to be at the root of the complaints by Iranian officials and the Iranian public is disappointment caused by an earlier excess of expectations about the economic benefits that would flow from the JCPOA’s commitments of sanctions relief, and about how quickly those benefits would be realized.

As others have explained, the reasons why the economic benefits of the JCPOA’s sanctions relief commitments have to this point been disappointingly slim are manifold and complex.  First, the JCPOA sanctions commitments only required the U.S. to remove sanctions that were specifically related to Iran’s nuclear program, leaving in place a complex legal architecture of primary and secondary economic and financial sanctions targeting Iran based on U.S. concerns about human rights in Iran, and Iran’s connection to terrorist groups. These remaining sanctions have, by many accounts, significantly deterred foreign investment and commerce with Iran, due to fears particularly by non-U.S. banks that they will inadvertently run afoul of this byzantine web of continuing sanctions, and face stiff financial penalties. Second, Iran’s economy is notoriously opaque and riddled with corruption.  This creates an environment of business risk that is simply unattractive to many foreign companies.

These and other factors have combined to produce only modest economic benefits for Iran over the past six months since the lifting of sanctions, which has in turn made the initial excitement and optimism about the JCPOA in Iran fade significantly.

Tyler Cullis has written extensively on the issue of U.S. sanctions on Iran post-JCPOA, including detailed analysis of the most recent developments, and possibilities for narrowing the gap between commitments and expectations.  I recommend his work to readers.

So what are we to make of the gap between Iranian expectation and commitment reality with regard to sanctions relief in the JCPOA?  Were Iranian negotiators bamboozled by their U.S. counterparts into thinking that the sanctions relief commitments the U.S. was undertaking would lead to an economic windfall for Iran?  I doubt it. I’m confident that the Iranian negotiators were sophisticated enough to know exactly what they had bargained for, and understood the limited nature of the economic benefits that would flow to Iran, particularly during the early months following the lifting of sanctions.  I suspect that, just like the negotiators from the P5+1, the Iranian negotiators knew they were not going to get everything they wanted out of the JCPOA. That’s the nature of compromise.

But I also suspect that the Iranian negotiators understood that with the lifting of U.N. Security Council sanctions and European Union sanctions, also provided for under the JCPOA, doors would be opened that were not previously open to foreign investment and commerce with Iran, and that even under the pall of continuing U.S. sanctions, eventually businesses in Europe and Asia would become confident enough to take their first furtive steps back into the potentially hugely lucrative Iranian economy. And that as ever when there is sufficient economic incentive, creative minds would devise financial means to facilitate these transactions.

For those of us who want the JCPOA to be successful and to remain adhered to by all of its parties, the hope now must be that the understandable disappointment felt by Iranians can be tempered by a more realistic, cautiously optimistic patience, and that it does not translate into political loss for President Rouhani and his moderate allies in the 2017 Iranian Presidential election.

And please God don’t let Donald Trump be elected President here.