By Lawyers Committee on Nuclear Policy | lcnp.org
The Nuclear Posture Review (NPR) released today at the Pentagon ignores international legal obligations of the United States and increases the risks of nuclear war. Prepared by the Department of Defense in consultation with other agencies, the review was approved by the White House.
Aside from a vague reference to “goals” of the Nuclear Non-Proliferation Treaty (NPT), the NPR does not acknowledge the obligation under that treaty “to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament.” That obligation was reinforced by an NPT Review Conference “unequivocal undertaking to accomplish the total elimination” of nuclear arsenals, a commitment approved by the United States. According to a unanimous conclusion of the International Court of Justice, the obligation requires states “to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects.”
None of this is reflected in the NPR. The most offered is a grudging acceptance of arms control measures for purposes of stability and predictability. The Trump NPR thus stands in marked contrast to the 2010 review conducted by the Obama administration, which committed the United States to seek the eventual achievement of a world free of nuclear weapons and addressed how to succeed in that endeavor in some detail.
The Trump NPR also fails to acknowledge that the use of nuclear weapons is subject to the international law of armed conflict, though the Pentagon has done so clearly in other contexts. Thus a 2013 Report on Nuclear Employment Strategy stated that all plans for use of nuclear weapons must “for instance, apply the principles of distinction and proportionality and seek to minimize the collateral damage to civilian populations and civilian objects.” In public appearances last fall, the present and former commanders of Strategic Command stated that orders to use nuclear weapons in violation of the law of armed conflict would be refused. The truth is that nuclear weapons cannot be used in compliance with that law, above all because their massive indiscriminate effects make it impossible to distinguish between military targets and civilian populations and infrastructure.
The NPR expands the role of nuclear weapons by identifying new circumstances in which they could be used, namely in response to “strategic non-nuclear attacks” including cyber attacks. This change runs directly counter to an NPT commitment to reduce the role of nuclear weapons in security policies in order to facilitate disarmament. It is contrary to the requirement of good faith in pursuing disarmament. And it raises the risks of nuclear war. For example, hard-to-attribute apparent cyber attacks will be considered a possible reason to resort to nuclear weapons, a change that will be all the more risky if other nuclear powers emulate the US policy.
A plan announced by the NPR for the acquisition of low-yield warheads to be mounted on submarine-based missiles is also contrary to the NPT commitment to reduce the role of nuclear weapons. It is especially disturbing because it comes in the context of the NPR’s theme that an era of great-power rivalry has returned. The proposed low-yield warheads are a return to a mode of nuclear war-fighting; supposedly Russia would not be deterred from initiating use of nuclear weapons to “deescalate” a conflict unless the United States has such a capability. Such scenarios rest on the dangerous assumption that nuclear escalation can be controlled. Further, the United States already has deployed low-yield nuclear weapons.
Finally, the Trump NPR carries forward existing plans for the replacement and upgrading of submarine-based, land-based, and air-based (bomber and cruise missile) nuclear forces, while adding a new element, a sea-based cruise missile. From any point of view, this is an extravagant and unaffordable plan. In the budgetary process, Congress must reject the NPR recommendations and inject some sanity into US nuclear planning.
