Legality of Nuclear Demonstration Shots in WartimePosted: July 8, 2016
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.
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.