January 27, 2022

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Disarmament Law and Morality: A Critique

23 min read

Dr. Christopher Ashley Ford, Assistant SecretaryBureau of International Security and Nonproliferation

Conference on Nuclear Weapons and International Law in the Contemporary Era Sponsored by the New York Bar Association

As Prepared

Let me start by thanking my Jonathan Granoff for inviting me to participate in this event.  Jonathan and I surely don’t agree on much in this area of public policy, but you may be surprised to know that he and I are old friends, including through the Engaged Buddhist community.  Jonathan and I approach nuclear weapons issues from quite different perspectives, but I have always found him willing to listen, to take ideas seriously, and to engage open-mindedly with such ideas even – indeed, especially – when they challenge preconceptions and preferences.  That is something that is all too rare in today’s political climate, particularly on these topics, which helps make it a special pleasure to be a participant here today. 

In that generous spirit, I would like, as my opening contribution to this discussion, to offer a legal – but more importantly – a moral critique of the disarmament movement.  I hope you will take it in the spirit of friendly challenge in which I intend it.   

This is a time in our national life when it’s all too fashionable to shout down those with whom one disagrees.  Whether they be of the political Right or of the political Left, however, self-reinforcing ideological monocultures are almost always intellectually stunted and prone to errors in judgment in direct proportion to the unfalsifiable certainty they attribute to their own foundational assumptions.  So let’s enrich each other today by challenging premises and conclusions, and by learning from the encounter. 

Accordingly, I’d like to offer some thoughts, first on the Treaty on the Prohibition of Nuclear Weapons – a.k.a. the “Ban Treaty” – and then on International Humanitarian Law (IHL) issues related to the possession and use of nuclear weaponry.   

The “Ban” Treaty

For the many countries that directly or indirectly rely upon nuclear weapons for security, the TPNW is a simple issue: we will not join it, we already consider it to be a failed treaty, and upon its entry into force, it will not bind us.  These states have also repeatedly and consistently signaled their rejection of a potential ban on nuclear weapons, and of the idea that there is any hint of opinio juris in the non-use of such weapons since World War II – messages which should make clear that no customary international legal norm against nuclear weapons is emerging.  

These many nuclear weapons-reliant states oppose the “Ban” not because we oppose disarmament, for we do not.  Rather, we oppose the TPNW because it will not achieve its ends, it approaches its objectives in a counterproductive way, it could damage other institutions critical to international peace and security, and it might even be strategically destabilizing.  I’ve addressed the TPNW in a couple of public speeches – once when on the National Security Council staff and once as Assistant Secretary of State – so I won’t go over all these points now.  

What I would like to do, however, is stress two points about the “Ban” here today: (1) the moral implications of the likely selectivity of the Treaty’s impact; and (2) the crisis-instability and nuclear-use incentives that might persist, or worsen, in a world without nuclear weapons. 

The TPNW is the result of a campaign of civil-society activism and grass roots pressure upon national legislatures and elected representatives, pushing them toward Treaty ratification or accession.  Civil society activism is a well-established and entirely legitimate way to seek social change, of course, but in this context, the problem is obvious: nuclear weapons possessors that lack a free press and use draconian tools of political oppression to suppress disfavored political activism in civil society are highly resistant – and arguably even immune – to such pressures.   

To the degree that it succeeds in influencing the legislators and politicians that it targets, the “Ban” approach thus has the potential to bring about nuclear disarmament only for those free, democratic societies that actually listen to their citizens’ concerns.  Surely, however, it can hardly be a moral imperative to create a world in which dictators such as Vladimir Putin, Xi Jinping, and Kim Jong Un are the only leaders left with nuclear weapons.   

But things get even worse.  For the sake of argument, even if the TPNW were actually to persuade all current possessors to eliminate their nuclear weapons, the world it would thus create would still not obviously be a more desirable one.  A world in which all nuclear weapons had been dismantled – but in which states still knew how to build them and still confronted conflicts, tensions, and rivalries in the international security environment – might well be a world more unstable and likely to see nuclear weapon use even than today’s world.   

Such a world would give every technology-holder not merely a powerful incentive to engage in a “reconstitution race” to build nuclear weapons in any major military crisis with another technology-holder, but in fact also give an incentive for that country to use such weapons preemptively if it succeeded in reconstituting before its adversary.  And that’s even without factoring in the ways in which eliminating nuclear deterrence might remove major powers’ disincentives to engage in conventional war in the first place, thus making more likely the conflicts that could trigger reconstitution racing. 

So assuming that the objective is not to achieve “disarmament” at any cost but rather to strengthen international peace and security and prevent human suffering as effectively as possible, the situation is more complicated than TPNW advocacy would have one believe.   

The Law of War  

I’d also like to explore here the intersection of nuclear weapons policy and IHL, for these issues need to be seen in their real-world complexity. 

Even the face of intense pressure to do so, after all, the International Court of Justice (ICJ) in its famous 1996 non-binding advisory opinion did not conclude that the threat or use of nuclear weapons would be unlawful in all circumstances.  As the Court made plain, it is the jus ad bellum and jus in bello – and not simply the desires or assertions of those who have advanced disarmament – that provide us with compelling and widely recognized standards for evaluating not merely the legality but also the morality of a country’s nuclear weapons policies.    

And it is here that the disarmament community – in its disdain for complexity and nuance, and in its thirst for the crystalline clarity of one-size-fits-all moral pronouncements – has to my eye often gotten things wrong.  Such monodimensional moralism has tended to impede actual efforts to compare nuclear weapons postures and doctrines, thus not merely obscuring important points but also making it harder to identify opportunities for legal and moral progress therein.  It is perhaps useful to make some comparisons. 

The United States 

By far the most forthcoming among the nuclear weapons possessors when it comes to issues of doctrine, posture, policies, budgets, and future plans, the United States offers a model of transparency and clarity in the nuclear weapons arena.  There is, of course, no reconciling U.S. nuclear weapons policy with those who still insist that there is no legal or moral case for nuclear weapons possession at all.  For those more inclined to evaluate matters under established principles of international law and morality, however, U.S. approaches hold up well – and the approaches taken by some other possessors perhaps less so.  

As for the ICJ leaving open the possibility of lawful nuclear weapons use, the Court referred in this context to “an extreme circumstance of self-defence, in which the very survival of a State would be at stake.”  And it is noteworthy – and no coincidence – that U.S. nuclear doctrine has long stressed that the use of nuclear weapons could indeed only make sense in extreme circumstances.  U.S. declaratory policy is rooted in collective defense, exclusively against the most dire of threats, and in connection with protecting the vital interests not just of the United States itself but also of our many “allies and partners” – that is, the numerous democracies of the North Atlantic area and Pacific Rim that rely upon U.S. “extended” nuclear deterrence for their own safety, and perhaps even for their continued existence as independent sovereign states. 

The United States also recognizes the applicability of IHL to any potential use of nuclear weapons, and U.S. doctrine and nuclear weapons policy guidance have long made this quite clear.  In U.S. practice, moreover, deep involvement by military and DoD civilian lawyers in nuclear planning and operational matters is also a matter of well-established routine, such lawyers being an official part of formal and informal planning, targeting, and operational processes and reviews precisely in order to ensure consistency with the law of war and relevant implementing guidance.  All uniformed members of the U.S. armed forces are also bound by the Uniform Code of Military Justice, under which they are obliged to refuse to follow unlawful orders, such as those that direct violations of the law of war. 

All in all, the United States has established formidable doctrinal and procedural safeguards, including review and advice by lawyers, into all its military operations, and nuclear weapons policy is no exception.  Particularly in the broader moral context of its nuclear forces’ fundamental objective of deterring aggression, the United States stands in both a strong legal and a strong moral position in defending its careful and nuanced approach to nuclear weapons policy.   

Russia 

By contrast, there are reasons to be concerned about Russian policy.  To be sure, Russia says its doctrine conforms with international law, that it has nuclear weapons only for defense and deterrence, and that they would only be used in extremis.  One hopes this is the case. 

Worryingly, however, the Russians have suggested that they might respond with the all-out use of nuclear weapons if they see even a single incoming ballistic missile – apparently irrespective of whether or not the missile is likely to be armed with a conventional or nuclear warhead, or whether its target is a city, a military facility, or an entirely empty stretch of desert or forest.  Especially coming from a country that itself possesses a large arsenal of ballistic missiles capable of carrying either conventional or nuclear warheads, it is not obvious how such a threat of nuclear use in response to any missile attack would always be consistent with Law of Armed Conflict (LOAC) principles of necessity and proportionality.   

 Another disturbing sign comes with Russia’s development of the Poseidon nuclear powered underwater drones that it apparently intends to fit with multi-megaton nuclear warheads and launch across the ocean in wartime in order to inundate U.S. coastal cities with radioactive tsunamis.  This operational concept raises serious questions about the extent to which it could be used in compliance applicable international legal rules and principles. 

Questions might also arise in connection with the so-called Perimeter (a.k.a. “Dead Hand”) system in Russia that some media accounts claim was built in the 1980s and would seem to have been kept in service – and the existence of which the Russian Strategic Rocket Forces commander apparently confirmed in 2011.  This machine, as reported, would automatically launch all of Russia’s remaining nuclear weapons if it detected any nuclear detonation in Russia and the machine lost communication with the General Staff in a nuclear conflict.  Can Russia defend such a system as being anything more than just a vindictive and barbaric fun-house mirror vision of apocalyptic retribution?   

In the previous panel this morning, Governor Jerry Brown pointed out that the crucial concept of the rule of law rests upon a consensus understanding of values and principles.  I don’t disagree with that, but in that light, it is particularly disturbing that Russian officials in another arena – specifically, cyberspace – have recently begun openly to question the applicability of IHL principles to the complexities of modern armed conflict.  The Russians have suggested there that it would be futile even to try to apply the law where it is difficult to distinguish between civilian and military actors.  What would this dangerous notion mean in the context of nuclear weapons, however for a country that builds and maintains nuclear tools such as Poseidon and Perimeter?  Does this not raise real questions about whether the Russians would bother to follow any legal principles in the conduct of nuclear operations? 

China 

Nor can one be much more sanguine about the PRC’s nuclear policy, notwithstanding the sanctimonious moralism of Beijing’s virtue-signaling about supposedly following a policy of “minimum deterrence” and nuclear “no first use” (NFU).  Part of the reason for concern here is simply that the PRC is extraordinarily opaque about its nuclear posture and doctrine, even while expanding both the size and diversity of its nuclear arsenal at a rapid pace and rejecting all calls to participate in arms control dialogue with the United States and Russia. 

But there is more to it even than that.  Beijing makes much of its supposed NFU policy, but few foreign observers take that policy terribly seriously, that policy does not preclude initiating destabilizing nuclear threats against another nuclear power in a crisis, and there are signs that the PRC may be revising it in any event.  Even if PRC officials actually mean what they claim in peacetime, moreover, there is little reason to think they could be depended upon to refrain from nuclear use if faced with defeat in a purely conventional conflict.  In general, as I’ve said before, “NFU statements seem pretty useless: they can truly be credited only when they are unneeded, and where they would be the most consequential, they are at their most unreliable.” 

As for its ostensible policy of “minimum deterrence,” this is in Chinese usage a phrase of spectacularly indeterminate meaning, and thus in no way actually reassuring.  After all, the PRC’s current nuclear buildup is taking place in a strategic context in which the nuclear threats facing Beijing from Moscow and Washington have fallen precipitously, by a stunning total of more than 60,000 warheads, from their Cold War peaks.  You might think that a country espousing “no first use” and “minimum deterrence” would, under such circumstances of hugely diminished nuclear threat, be happy to cap or even correspondingly reduce its own arsenal.  But despite this extraordinary shrinkage of the nuclear forces arrayed against it, Beijing is still rapidly expanding its nuclear arsenal, even while apparently still embracing “countervalue” targeting of civilians.  All this should deeply trouble the disarmament community, who should join us in asking tough questions about Beijing’s nuclear doctrine and demanding far more transparency and clarity. 

Conclusion   

I raise these arguments problematizing some of the disarmament community’s reflexive moral and legal assumptions not in order to dismiss or denigrate the heartfelt intentions and earnestness behind them, but instead in order to encourage a more serious engagement with the security challenges that face real-world countries in a challenging strategic environment.  I also hope to encourage greater appreciation for the degree to which such details do very much matter if we really are to build a safer, saner, and sustainably peaceful world – one in which no one has to worry about nuclear use doctrine or reconstitution crises ever again. 

 If there’s a road to resolution of mankind’s nuclear dilemma, it doesn’t lie in imagining that sweeping moral pronouncements will simply make the challenges of complexity in the international security environment evaporate.  Those challenges have to be grappled with and actually addressed.  And to do that, it’s necessary to take security seriously, and to engage with nuclear postures and policies in their real-world detail more than is usually done in events like this. 

Thank you.  I look forward to our discussion.

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