Good afternoon. My name is george perkelvich and im going to talk a little as people enter the room. Its good to see you all here. Our topic today is the legality of Nuclear Deterrence. This is not a topic that you tend to find on Cable Television political shows or on op ed pages or in president ial debates, where probably if youre lucky at your summer bar bar becues, but it is an important topic. One of the reasons the question of the legality of Nuclear Deterrence is so important and often underappreciated, is that the women and men whose job it is to carry out nuclear operations, to manage our Nuclear Weapons and conduct operations with them, they understandably need to know that what they might be asked to do is considered legal and legitimate. And in many ways, obviously, society ohs them that kind of del deliberation. So its a quite important topic and its also, obviously as well hear, not so simple. The legality of deterrence may be distinguishable from the legality of using Nuclear Weapons. So the hope with deterrence is that the threat or the possibility of using these weapons would prevent you from ever actually having to do it. But if that fails and the decision to actually use the weapons occurs, a whole different set of legal considerations may be necessary. And if this kind of question isnt being addressed in moscow or other capitols, then we should be glad its being addressed here and people like you are coming out to be part of this discussion. Our speaker, i think will also point out that this question is more likely to become more salient, at least in some International Political debates over the next few years, which again reinforces the idea behind the excellent paper that hes written on the same topic, on the legality of Nuclear Deterrence. This paper was produced by the lawrence liverborn National Laboratories center for Global Security research. Its free. You can download it from that website. When i googled last night thinking of how to tell you to do this, i looked aup legality of Nuclear Deterrence and the first thing that popped up was the advertisement for todays discussion. If you click on that, theres a clinic to the paper through that way. So that would be an efficient way to do it. Newell acquired his expertise on this topic from a long and distinguished career in the state department, and from one to 2017 he was the he supervised a section of the legal office of state that dealt with nonproliferation and arms control. So hes got considerable experience on exactly this topic. Newell is going to take you through the essence of his analysis and argument. Ill make a few comments and then well open it up for discussion with you all. Thanks again for joining me. Thank you, george. And thank you to carnegie for hosting the discussion. I also would like to thank brad roberts and the National Laboratory for the support theyve provided me in producing the paper and having these opportunities to present my paper. So it was almost exactly two years ago that 122 nations adopted the treaty on the prohibition of Nuclear Weapons. 69 nations declined to participate in the adoption of the treaty, and that included all of the Nuclear Weapon states, the states that possessed Nuclear Weapons, and that is a distinction. Nuclear weapon states usually refers to the states under the nonproliferation treaty, but there are additional states that require Nuclear Weapons as well. Now, the treaty has not entered into force and so far only about half of the 50state ratifications have been completed, so its unclear when it will enter into force. The weapons ban treaty was not drafted with a view to gaining the adherence of the states that possess Nuclear Weapons. And if you review the treaty, that becomes fairly evident. But it was intended to send a strong message seeking to delegitimize Nuclear Weapons. And the evidence suggests that the advocates for that treaty but not end their efforts but pursue additional avenues as well. And one of those would be to try to reason gauge the International Court of justice on the issue of the legality of Nuclear Weapons. And that was what led to the decision to pursue this topic. In 1966, the International Court of justice issued an advisory opinion on the legality of the threat or use of Nuclear Weapons. Every one of the 14 judges wrote a separate opinion. It was a highly divided court. Only half of the judges supported the final opinion of the court. And i want to read the two critical elements of that finding in that advisory opinion. The first is that the threat or use of Nuclear Weapons would general be contrary to the rules of International Law applicable in Armed Conflict. And by the term rules of International Law applicable in Armed Conflict, theyre referring to basically what is often referred to as the laws of war or International Humanitarian law or sometimes shortened to ihl. The second fee finding was that notwithstanding that the threat or use would generally be contrary to the laws of war, the court could not conclude definitively whether the threat or use of Nuclear Weapons would be lawful or unlawful in an extreme circumstance of selfdefense in which the very survival of a state was at stake. Theres three elements to these two findings that i want to focus on in the majority of my comments, and the first is that the key to the decision was the analysis of the law of Armed Conflict. And the two critical elements to the law of Armed Conflict that were in play were, first of all, the requirement that any use of force must be proportional, and second of all, that an attack must be capable of distinguishing between combatants and noncombatants. And the second concept is also known as discrimination or distinction. And ill get into those further a little later in the discussion. The second key element i want to talk about is that the court identified one scenario, and only one scenario, where it could not quite decide whether the threat or use of Nuclear Weapons would be lawful or unlawful. And that was, as i said, in extreme circumstance of selfdefense in which the very survival of the state would be at stake. The third element i want to talk about and the main topic of my paper is that the finding of illegality or general likelihood of illegality applied to both actual use and to the threat of use. And because it also applied to the threat of use, it does implicate the practice of Nuclear Deterrence. And before i talk about these three key elements, i would like to talk briefly about some of what they did not find. First of all, the icj acknowledged that there was no per se prohibition against Nuclear Weapons in International Law. Theres no treaty that bans Nuclear Weapons altogether, and indeed, even the treaty on the prohibition of Nuclear Weapons is not in force and, even when it is in force, it would not be adhered to by the states that possess Nuclear Weapons. In addition, there is no prohibition against, per se prohibition against Nuclear Weapons under customary International Law. Now, customary International Law is similar to common law in a domestic legal context. It is law that accumulates over time and it is based on two elements. One is the subtle practice of states and the other is that the states that engage in that subtle practice believe they are doing so as a matter of legal requirement. So the next question is what is the subtle practice of states within the nuclear era . Well, that subtle practice would suggest that Nuclear Weapons are indeed legitimate. The Nuclear Weapon states and their allies have possessed Nuclear Weapons and relied on them for deterrence throughout the nuclear era. These states represent a substantial minority of all states, if you count the allies as well as the actual states that possess Nuclear Weapons, but in addition they represent a huge percentage of the population, the land mass and the economic power of the planet as a whole. Secondly, there are numerous treat hes that have addressed Nuclear Issues since during the nuclear era, but none of them purports to abolish Nuclear Weapons altogether, except as i mentioned, the treat of of the prohibition of Nuclear Weapons to which those states are not parties. The Nuclear Nonproliferation treaty allows for five states to continue to possess Nuclear Weapons. Its provided for in the treaty. And as we know in addition, for additional states that are believed to possess Nuclear Weapons beyond those five. There are a number of Nuclear Weaponsfree worlds, latin america, parts of asia, et cetera. All of these have protocols that they want adhered to by the Nuclear Weapons states. In other words, they also contemplate that countries will continue to possess Nuclear Weapons and it is very important to the countries in those zones to get assurances from the Nuclear Weapons states that theyre not going to use those Nuclear Weapons against them in exchange for them foregoing Nuclear Weapons in the entire region. And finally, of course, there are many or a number of treat hes that limit Nuclear Stock piles or that limit nuclear testing, but none of those purport to eliminate Nuclear Weapons or prohibit Nuclear Weapons altogether. I want to go back through the three key elements of the courts finding that i mentioned earlier. The first is that indeed the law of Armed Conflict was the basis that the court relied upon for finding that the threat or use of Nuclear Weapons would generally be contrary to International Law. Every state that presented views to the icj in that case, and that includes the United States and russia, agreed that the law of war does apply to Nuclear Weapons. They did not try to treat Nuclear Weapons as different from other types of weapons. So as i mentioned earlier, the two principles of the law of war that are most applicable in this case are proportionality and discrimination. Proportionality means that the expected harm from an attack must not be excessive in relation to the military advantage expected to be gained from the attack. In other words, its one of the mechanisms for limiting Collateral Damage, that you do not want to have excessive harm compared to the military advantage youre trying to attain. Discrimination, which is also referred to as distinction, requires that an attack must be capable of distinguishing between the armed forces and civilian population. Again, this means that civilians cannot be targeted as such, but the key words are as such. It does not mean that there can not be Collateral Damage in which civilians are harmed in connection with an attack on a legitimate military target. I want to look first at the application of these principles of the law of war to the actual use of Nuclear Weapons and then ill come back at the latter part to talk about their application to Nuclear Deterrence. In my view, and this view has raised a few eye browse, i think the court was actually correct in concluding that the actual use of Nuclear Weapons would be very difficult to square with discrimination under the law of war. I think in any actual case that Nuclear Weapons were used, they would likely be disproportionate and there would be minimal capacity to distinguish between come patents and noncombatants. Under the obama administration, nuclear planners were directed to ensure that our nuclear use plans complied with the International Humanitarian law, the law of war. And the planners have noted in writings that they do not target civilian populations, per se, which is of course one of the requirements of the law of war. Nevertheless, and this is without questioning the sincerity of the efforts of those nuclear planners or that they are doing the absolute best job they can to comply with the laws of war, certain concerns would continue to exist. First is that the nuclear use plans would generally be implemented in a hasty situation involving incomplete information. Thats just the nature of war. And under those circumstances, the ability to choose which option best comports with the law of war may be limited. Secondly, legitimate military objectives are not limited just to the armed forces of your opponent and theyre not limited just to the war waging capacity of your opponent, which would be things like missile factories and transportation lines, but could also include your opponents war sustaining activities. That could be things like Electrical Supply sources and other kinds of Industrial Facilities that arent directly supporting the war effort, but support the countrys ability to sustain an attack. So on top of this sort of broad range of permissible targeting, in each of those cases you would have some amount of permissible Collateral Damage, because that is something that is permissible. You have an obligation to minute prize Collateral Damage and not to engage in an attack if that Collateral Damage would be excessive, but as we know from actual experience, there is almost always some Collateral Damage in war. And in addition to this, of course, any plans that seek to limit the amount of Nuclear Exchange that occurs, theres always a risk of Nuclear Escalation by one side or both sides that would lead to a much greater devastation than is originally in those plans. Despite my belief that in most of these realistic scenarios, the use of Nuclear Weapons would be very likely to violate the law of war, very likely is not the same as definitely. I dont think it is possible to say that every possible use of Nuclear Weapons would definitely violate the law of war, and in the absence of a legal basis for such a blanket finding, i think the court was correct to refrain from making that kind of blanket finding in its icj decision in 1966. This brings us to the second key element that i wanted to talk about, which is the exception that was possible exception that was identified by the court. That possible exception again was for extreme circumstances of selfdefense involving survival of the state. And i dont want to spend too much time on this, because in brief i think that the court provided no Legal Support for carving out that particular exception. In addition to that, its not clear what they mean by survival of the state. Do they mean as one of my colleagues as pointed out, do they mean survival of the state as an independent political entity . Do they mean survival of the particular government thats in control of that state, or do they mean the physical survival of the population of that state . So which of those you choose could have a significant effect on how you judge what survival of the state consists of. So in my view, the court would have been better off stopping and saying we cant determine that nuclear use would be illegal in all circumstances and not try to single out one scenario in which that might constitute a possible exception. So that brings me to the third key element i wanted to talk about and the main thrust of my paper, which is Nuclear Deterrence. The icj advisory opinion treated the threat of nuclear use the same as actual use of Nuclear Weapons. And thats consistent with International Law. Its consistent with the u. N. Charter with the way threats are actually treated in the use of force. Therefore, its conclusion that the use of Nuclear Weapons would general be illegal, would also apply to Nuclear Deterrence if Nuclear Deterrence is deemed to be a threat to use Nuclear Weapons. And even the u. S. Judge who disagreed with most of the findings of the court concluded that if a threat of possible use did not inhair deterrence, deterrence would not deter. And therefore most judges concluded that in some way Nuclear Deterrence does constitute a threat to use Nuclear Weapons. The problem, of course, is that if nuclear use would generally be contrary to International Humanitarian law, as long as Nuclear Weapons exist, you still want Nuclear Deterrence. Its essential to minimize the risk of actual use. And thats the conundrum i think that the court was grappling with. So the question is does milk deterrence constitute an loyal threat to use Nuclear Weapons . And that was the main thrust of my paper. Clearly it is possible to make a Nuclear Threat that does violate the laws of war. If, say, russia threatened ukraine that it would use Nuclear Weapons, unless it seeded some of his toer toer. That would violate International Laws of war. It would be a direct threat. But in my view, that is not representative of the nature of Nuclear Deterrence and its certainly not in its most Important Role. Its most Important Role is to deter an initial Nuclear Attack. The threat in Nuclear Deterrence is noncoercive in the sense that it is trying to avert a nuclear cats free. Secondly, that threat is nonspecific. Its not if were attacked were going to launch all our missiles, there are a wide range of options that might be used in responding under the Nuclear Deterrence that are part of the concept of Nuclear Deterrence, and that includes the option of not using Nuclear Weapons in responses to an attack. And finally, the threat is highly attenuated, it is contingent on the state relying on Nuclear Deterrence being attacked wrongfully by another state with Nuclear Weapons, and its contingent on the victim state choosing to respond with Nuclear Weapons. So in those ways, in my view, the Nuclear Deterrence is hardly distinguishable from the deterrence that is relied upon with conventional weapons. States have standing aerms and they have those standing armys to deter an attack. States have stationed overseas as we do in south korea, again to deter attack. And states can occasionally send navel forces into regions of conflict, again to deter attack. All of these examples involve a contingent threat the same as Nuclear Deterrence arguably involves a contingent threat. In some of those cases i cited, the threat is less specific and attenuated than what occurs with Nuclear Deterrence. But these examples of deterrence with conventional forces generally arent viewed as being contrary to the laws of war and i think the same should hold for Nuclear Deterrence. In addition, if youre assessing the applicability of the law of war to Nuclear Deterrence, it has to be based in any circumstance on facts. So for example, what is the nature and scope of the attack that youre responding to . What is the risk of further attack by that opponent . And on your side of the ledger, what is the nature and the number of weapons that you plan to use and targets you plan to attack in responses . What steps might you take to minimize Collateral Damage . All of that is highly factual and is very difficult to do an assessment of International Humanitarian law with so many factual variables in play. As again one of my colleagues wrote, it is difficult enough to assess the legality of hypothetical uses of Nuclear Weapons and it seems even more difficult to assess the legality of hypothetical threats to use Nuclear Weapons. And finally, the principle of proportionality does not mean that you can only respond to a use of force with an equal reresponsive use of force. You measure the proportionality by the nature of the threat. And a defensive use of force can exceed the force that was used in the attack. Take, for example, the invasion of ku wait. The responses by the u. S. And its Coalition Forces was much greater in terms of use of force in order to dislodge the irracky army and make sure there was no recurrence of the attacks. When youre looking at Nuclear Deterrence, which is a contingent threat to use force, i believe even more latitude is justified than in actual use. So for example, it is arguably permissible for a Major Nuclear responses to be used to deter even a limited Nuclear Attack by another country. Take, for example, what i assume the North Koreans assume if they made a limited Nuclear Attack on the United States, they would be risking a Massive Nuclear detal ya retaliation. So to sum up, im personally very sympathetic with the cause of eliminating Nuclear Weapons. Its disturbing, as many of the judges pointed out, its disturbing that a handful of countries by miscalculation or stupidity could devastate most of the planet. And its disturbing even if that outcome is not very likely in reality. Clearly the advocates for the weapons ban are very dedicated to their cause, and therefore i think it is fair to assume that they will not rely soly on the treaty in their efforts to delegitimize ye delegitimize Nuclear Weapons. In my view, the court would be wrong as a matter of law if it found that Nuclear Deterrence was illegal, certainly at least in its primary role of deterring a Nuclear Attack. More i think a decision along those lines by the icj would not purport with the reality of Nuclear Deterrence in the world. It would be beyond the court going beyond its mandate to interpret the law and the court attempting to make law. And its decision would be ignored and criticized by the major powers, which i think would be harmful to the reputation and legitimacy of the court. Even if the world would be safer without Nuclear Weapons, as long as those Nuclear Weapons exist, my view is that Nuclear Deterrence is essential. The elimination of Nuclear Weapons requires the hard work of treaty negotiation and those treaty negotiations need to solve the states that possess Nuclear Weapons and they need to address the very difficult verification issues involved in assuring that no state has retained its Nuclear Weapons and that no state is cheating by trying to reconstitute its Nuclear Weapons or make Nuclear Weapons for the first time. In my view, theres no credible shortcut to the treaty approach to eliminating Nuclear Weapons. Again, thank you very much for this opportunity to address this issue. Thanks, newell. So ive got a couple of thoughts and questions that ill raise and then well open it up to you all. I guess the first question i think, at least to my mind, you talk very candidly and throughout the paper about the likelihood or near likelihood that if Nuclear Weapons were actually used, the effects could be catastrophic, and that to keep within the laws of Armed Conflict in actual use, it would be much better to have less weapons, lower yields, targets away from populations. I guess my question is and this isnt directed just to you, but in general, why dont we focus more on trying to spell out the conditions in terms of the sizes of arsenals, the types of weapons, the targeting, that not only the u. S. , but that any state could adopt, which conditions would lower the probabilities of violating the laws of Armed Conflict and causing humanitarian disasters . We tend not to talk in those terms. I mean, i think thats a fair question. Is there a set of prescriptions that you could come up with that would make it much more likely that any use of Nuclear Weapons would be consistent with International Law . I think that and i guess what youre suggesting is that trying to come up with that might be a more achievable goal than the elimination altogether. You know, i defer to nuclear planners and strategists on that. I know some people think that reducing the numbers actually may increase the risk of a Nuclear Exchange. But i think thats the kind of study that its worth somebody who has that expertise engaging in. I think its a fair question. And ive just always noted that those questions havent been addressed or people havent analyzed comparative arsenals in those terms. We have nine states with Nuclear Weapons. Theyre all fairly different, so the lowest number would be north korea and the highest would be russia and the u. S. Is close to russia, and theres a big spectrum in between there. So kind of feltering that through questions about the pro pensty to violate International Law. One of the problems of grappling with the Nuclear Weapons, whether its the icj or experts trying to do it, is that the laws of war, as i mentioned earlier, are very factspecific. And the range of possible options are so broad that it would take there would be perhaps a very wide range of possible configurations of what youre talking about in terms of size and type of weapons that might increase your likelihood of comporting with International Law, but it would be a daunting task to try to figure all of those possible permutations out. It doesnt mean it shouldnt be tried, but it would be a daunting task. So then that raises another question, and i dont know if when you were in the state department, if part of your job was interacting with Strategic Command, for example. So Strategic Command and then omaha is kind of in charge of operating u. S. Nuclear forces major role and developing the targeting plans and operational plans for that, and theyre very explicit that they do all of that, as you said, with the laws of Armed Conflict in mind. They have lawyers involved who are very, very serious going through all of this. And so we say that the guidance for employment of Nuclear Weapons should follow those laws. But was there ever kind of a review of that or kind of back and forth as to what would happen in a legal argument on the same team, but for the purposes of actually saying, okay, we say were going to follow these principles, but how would you do it here or how would you do it there . Does that kind of review ever happen . Not that ive been involved in, but honestly, that would be more Defense Department and jcs lawyers, and i cite in my paper a really interesting article by general keller, who was the former commander of the strategic forces, who goes through what he viewed as a big change in their Nuclear Planning that they were starting to really take into account the laws of war and think hard about all of these issues. And having their lawyers involved in a way that they had not been previously. And so its a really interesting article that i would recommend to everybody. But theres also been critiques of that approach that say that, as i mentioned earlier, you can have those plans. You can try to design those plans to be as compliant as possible, but when push comes to shove, how capable will you be of exercising your responses in a way that does comport with the laws of war in situations that are no doubt going to be taxing, to say the least . And where you have a wide range of options, how do you consider those in a timely fashion in the fog of war . And so i think those are legitimate questions to ask. And in addition, even though their plans comport with the laws of war, by their analysis, we have very broad targeting, permissible targeting rules of engagement. And when youre talking about Nuclear Weapons engaging with the armed forces and the war waging capabilities like weapons plants and the war sustaining capabilities like Industrial Facilities and power plants, the result could be the complete devastation of a country in the ability of that society to function, and the impact on the population could be huge. But i think those discussions are ones that i hope theyre having, because it sounds like they have had very rigorous looks at their laws at their Nuclear Plans to try to comport with the laws of war. From the completely other side, scott sagan, hes been doing for years Public Opinion surveys, surveying respondents in the u. S. About scenarios of using Nuclear Weapons and to get perspectives and the responses, one was probably a month or six weeks ago that came out and it got a lot of attention in the press about how, lets say, willing respondents were to see the u. S. Nus Nuclear Weapons against, for example, north korea, actually when given a choice of one set of casualties that would be caused by this use of Nuclear Weapons versus a much higher set of casualties, a surprisingly large number said do the higher casualties. They interviewed somebody who says we want them all dead. So the tension that would exist within the body pole tick as youre kind of mounting up, where the law is saying being as restrained as possible, but given what might have been the precipitating attack on the u. S. , the political momentum could be quite different. So these kind of conversations, i think a lot of people if we heard it, they would say, what, youve got lawyers talking about this . I think there would be huge pressure. If the North Koreans hit one u. S. City, i think there would be huge pressure to respond in a massive way with Nuclear Weapons. And i think that applies in other scenarios as well. Ive grappled with the question if the u. S. Sees a significant attack coming, presumably from russia since theyre the most capable of launching such an attack, what is the legality of a massive counterstrike . Are we trying to deter future additional attacks beyond that, or do they simply want to retaliate because you hit us and were going to hit you back . Retaliation is not a legitimate military objective. But whats the reality . As a political matter, when youre engaged in that kind of conflict. And i think im not going to ask you to do it here, but more broadly, that raises the question, well, why do we care about International Law . And i think the retaliation one is a good example. So the u. S. Basically know its about to be destroyed or largely destroyed by Nuclear Weapons, theres nothing you can do to stop those weapons from landing here, what do you do . And people say respond massively. And you say its not going to prevent any more deaths in the u. S. , its retaliation and somebody would say thats not legal. And i think a lot of people would say i dont care if its legal. So that issue is not one that we think about much or debate, especially since the end of the cold war. Even a significant Nuclear Exchange in south asia would have huge effects globally on every aspect of life. And its a fair question, what is the rule of International Law at that point. In essence, International Law has failed at that point. And while it may be important in cleaning up some of the legal niceties after that kind of cats free. That leads me to the next question i want to ask and i want to open it up. You just pointed to it, actually. So we a lot is written over decades about the legality of the threat to use Nuclear Weapons or the legality of use. You had the court ruling in 1996, books have been written about this. And there are always kind of from the prospective point of view, would it be legal. And i always wonder why isnt there more discussion, why havent states done more to set up mechanisms to adjudicate after use. So weve got almost all of the states in possession of Nuclear Weapons, certainly the u. S. And the u. K. And france, as you mentioned, theyve all said they would follow the laws of Armed Conflict, number one. Number two, they all say theyre responsible poe sesers, so they treat the weapons, they all say basically trust us with them, were not going to give them up, even for those of you who are pushing for us to get rid of them, but theyre responsible about them. It seems to me to invite the question, if all of that is true and youre responsible, then if you ever did use them, would you accept in advance International Adjudication to make sure your conduct was as responsible and law abiding and everything that you said . I think i know what the answer is going to be, which is maybe on another planet. But im curious to get your views on it and to hear that donted. Because one of the responses could be it doesnt do any good because were all going to be dead. But the same people say actually we could use Nuclear Weapons in a way that wouldnt cause humanitarian disaster and violate International Law. So if thats the case, if you can manage escalation and not cause humanitarian disaster, then youre going to be around to be accountable or somebody is going to be around, so why not accept that kind of accountability . I dont have an answer to that. I guess my first responses is what you already said, which is none of those countries will ever accept that. Look at who accepts come pulsery jurisdiction of the law of justice and look at who accepts the court. It would be a tough call. Lets open it up. So if you have a question, please raise your hand and then well call on you and then please introduce yourself. Anyone . This gentleman here. Thank you very much. Vince manzo from the center for analysis. This discussion i think really is appropriate in light of the debate over the low yield sub marine launch Ballistic Missile that the u. S. Government is in the process of implementing with a strong debate in congress right now. So on the one hand you have analysts and scholars such as scott sagan who say lower your weapons and its actually a more ethical deterrent. And if we were in a situation where we had to respond to nuclear use, a low yield weapons probably gives you a better chance of doing that. On the other hand, you have some prominent members of congress and opponents of low yield weps ns who say thats crazy, even preparing for a nuclear war is very dangerous. In a sense theyre not following the logic through but theyre really arguing for a massive retaliation strategy, which based on the analysis im hearing here sounds like it would be less consistent with the law of Armed Conflict. So i would be interested in both of your views on that issue. Thank you. Before you answer, newell, i want to get a plug. Vince manzo has written a great paper recently on kind of the future of arms control on this situation, primarily u. S. , russia and china. So for those of you who are inclined to think and learn more about these issues, i recommend his paper. Newell, please, its a free spot. Its not a paid commercial. I address low yield Nuclear Weapons a little bit in my paper. I cant say that i am persuaded that they would in fact improve the situation. I probably would go down as a skeptic of whether they improve deterrence, which is the theory behind them. The theory is that if our adversaries are thinking about the possibility of using low yield weapons in, say, regional situations, they will be deterred better if we have low yield weapons that we could respond with. And i honestly am a bit of a skeptic that they would change their evaluation of the likelihood of u. S. Nuclear weapons as between strategic and low yield. And i think even a low yield exchange between the great powers would just pose a horrible risk of escalation and all of the things that you want to avoid. And these are not costfree exercises. Youre spending money on new weapons that you might have expended on stockpile stew ardship or other elements of the program potentially. So ive seen scotts discussion of that, but i think his is not as an advocate for low yield weapons, although perhaps in lieu of any strategic weapons. But i think he was just posing the possibility that yes, i think it is fair to say that use of low yield weapons at least in theory gives a greater chance of complying with International Humanitarian law, because you can target more narrowly, Collateral Damage would be less, et cetera. You can read my paper. I dont really come down on the side that thats a good way for us to go. Vince, i would just add briefly, it seems to me that as a part of principle and policy, that yes, one should seek to use the lowest yield possible to destroy whatever legitimate target is there, especially if that could have reduced harm on noncombatants and the environment, that it would be wrong not to do that. We havent that hasnt been necessarily an approach. And then i think newell is right, there is this legacy. So if we have a legacy of weapons that actually are much higher yield because their Delivery Systems werent as accurate when they were deployed, so you had more yield to make sure you would destroy the target. Now if youve got better delivery, you could have lower yield. But there may be some expense or other difficulties in switching them out or redeploying them. That becomes a policy issue. But i think as a matter of principle, its worth stating the principle and that to the extent that its possible to switch, lower yields or have lower yield options than higher yield, that should be done, it seems to me. And moreover, that having that debate internationally is a good debate to have for reasons that one could go on. But anyway. Maybe well have that debate here. Thanks, erin. Thank you. Im Diane Pearlman, school for conflict analysis and resolution at george mason, and also the u. S. Convener of the International Network of conflict transformation. Ive been to like many of these kinds of discussions since ive been in dc and theres a kind of level of absurdity to it where youre willing to kill like innocent people and really destroy the fragile planet because they have terrible leaders or because we have terrible leaders. And just to few points. Im friend with people that asked for the icj opinion, friends in new zealand, and ive been to every mpt in new york since 2000 and i was at a ban treaty. The npt does not actually, its my understanding, allow for five states to have Nuclear Weapons. Theyre committed to negotiate towards disarment. Deterrence is a theory and it holds up under some conditions and it breaks down under certain conditions and flips into spiral theory and theres a lot of work done on that in social science. And also if we get to that point, theres not much talk about tension reduction diplomacy, or the reciprocated initiatives in tension reduction where you ratchet down the tension. And kafl white, the social psychologist says that works if its accompanied by drastic reduction. So just that theres strategies of whats called second order change where you deal with the underlying conflict and understanding the cause of the conflict. Thank you. This gentlemen here and then in the back there. Im hank gafney. I spent 13 years on Nuclear Weapons. In 1977 my guys led a nato study. It was called the military implications of technology. And my guy demonstrated that nothing, no conventional ever, compares to a nuke. And i see a lot of discussion these days. This is filthy stuff. I did a lot of work to get rid of adms for one thing. And then of course they were put in the ground and they did all kinds of bad stuff. And secondly, on this business of this low yield thing, its supposed to go on a missile. We launch a trident missile against somebody, that doesnt look like a mininuke. This is ridiculous. I dont know why people are fooling around with this kind of stuff. This is very bad, this nuclear stuff. Thanks. I learned a lot. Im martin fleck. Im with physicians for social responsibility. And physicians for social responsibility, we agree with beyat ris fin who said this sort of wep be should be illegal. And so my question is about you kind of laid a Legal Foundation that included the mpt, Diane Pearlman already picked up on that. You said that the mpt says that if i understood you right, it sounded like you were saying the mpt allows for five nations to have Nuclear Weapons. And i think that you left something out, which is the mpt allows for five nations to have Nuclear Weapons temporarily. And i also would i also would purport that the vast majority of the signers, their understanding of the deal was that it was temporary. I asked tom graham about that. He said their understanding was it was temporary. There have been, last december, 162 nations at the u. N. Called for total elimination of Nuclear Weapons. Its been 49 years since it was in force. How temporary . Thats a long temporary arrangement and were still in a lot of danger. How do you square it allows five nations to permanently possess Nuclear Weapons. I think thats does not square with the vast majority of people parties to that treaty. I clearly should have mentioned article 6 of the mpt. I knew it would come up. I didnt mean to suggest it allows for five nations to have Nuclear Weapons. All states including the five Nuclear Weapons states has good faith towards Nuclear Disarmament and for all five to have complete and complete and general disarmament. General disarmament. Thank you. I agree with you. The countries that agreed to forego their Nuclear Weapons was at some point these negotiations would successfully result in Nuclear Disarmament. Since that time, we had four Additional Nuclear states who had no such obligations. One of your problems is that, even if the five came wake up a disarmament plan, those four have no obligation under International Law to join in with that. None of the four seem inclined to give up their Nuclear Weapon. In addition to that, even if you go back to the time of the mpt, i agree the expectation was there would be Nuclear Disarmament. That was at the height of the cold war. What did they really expect in terms of the timetable . They didnt set a timetable in the mpt, nor could they. You cant set a timetable realistically to compel states to agree to something as complicated as what are the provisions going to be for elimination and how will you verify it . It will require extremely intrusive verification measures. It had to be understood at the time. I wasnt at those negotiations, i know tom graham was, it had to be understood at the time there had to be fundamental changes in the National Security environment that would allow for the elimination of Nuclear Weapons. I think that that has not occurred and with the addition of four Nuclear Weapons statements it further complicated that problem. I dont want to minimize the obligation but it is important to defend the opposition that mpt parties are negotiating in good faith towards disarmament is the problem. The woman in front of martin there. Thank you for being here. My name is sona. Im with the American Enterprise institute. I read the paper outside by dalton on south asia nuclear cry sees. My question is, other than military conflicts or flareups, are there any other trends that guide your research, scientific developments and Nuclear Power with liquid salt technologies or perhaps when countries invest heavily in Nuclear Energy or are those separate from what you do . We have worked here at carnegie on various aspects of civilian Nuclear Energy, which is what i think youre referring to. We finished it in 2012, worked with all the vendors, all the company is in the world. There were 13 of them that sell Nuclear Power plants to develop a voluntary code of conduct for their export. One of the things that happened subsequently the Nuclear Power industry is in very very bad shape. French company is nearly bankrupt, g. E. Doesnt have a licensed reactor and westinghouse is nearly bankrupt. The South Koreans are doing okay. And the japanese countries, after fukushima, one thing you look at internationally, there isnt much demand for Nuclear Energy probably because the costs keep going up and no one knows how long it takes to build a Nuclear Power plant. The Specialized Labor necessary has basically aged out. The people who built these things in the west in the 60s and 70s arent there and companies have a very hard time getting skilled labor. United air of emirates have a program they brought south Korean Companies to build four power plants. The first is nearly done but two years behind schedule because they havent been able to train emirates to do the regulatory work and set up colleges. Everywhere its been very problematic. That isnt to say there couldnt be a revival somehow for Climate Change purposes but right now, its in a very very difficult situation. Why i went on at that length is i think theres an implication, our community, the people who work on nonproliferation havent really explored yet. That is this. One of the motivations for developing countries, especially to go along with nonprolive raipgs proliferation and promise not to make Nuclear Weapons and intelligence sharing to prevent proliferation, one of their motivations was they would then get access to Nuclear Energy and get cooperation and help to acquire Nuclear Energy. As long as that was really attractive, i had a good motive to not acquire Nuclear Weapons because i was going to get something in return. If Nuclear Energy is no longer attractive but im still being asked to participate and export controls allow inspections, theres nothing in it for me. Whats in it for me . Thats happening at the same time as you and others pointed out there hasnt been progress towards Nuclear Disarmament. From the standpoint of countries again mostly in the developing world that dont have Nuclear Weapons now dont find Nuclear Energy attractive and would want Nuclear Disarmament, thats happening, theyre saying, whats in it for us, were kind of getting screwed here and we dont want to invest in this. I think from my perspective the civilian Peaceful Nuclear shield issue, if we were able to negotiate a banned treaty that includes a state that has Nuclear Weapons, the understanding many people have is you would not only have to create verification for their weapons complexes but also ramp up even higher than it currently is inspections of Peaceful Nuclear field cycle facilities. In the case of the five Nuclear Weapons states, those are states that currently dont have a high level of inspection of their facilities by the iaea. You have to take that into account. It would be a large task to ramp up iaea activities to give you that sense of assurance nothing is being diverted from all those facilities. A corollary of that is that some people urge under a weapons ban treaty there should be some internationalization and restrictions on enrichment and reprocessing so its easier to assure additional states arent pursuing materials that can be used in Nuclear Weapons. Its an interesting idea and been looked at in different contents over the decades. It would have to be rec tiled with article 4 of the Nuclear Nonproliferation treaty that states wont purtu adjustment of nuclear activities. Right there. Wont pursue. For the internet, right . Okay. I agree with your general argument, but i wanted to pull the thread a little on something george said earlier, that is, im interested in your thoughts on what International Law has to say on any one of three aspects of Nuclear Weapons possession. One would be nuclear strategy, through the how and why, states would consider using Nuclear Weapons in extreme is or why they possess them, Nuclear Posture, prepared Nuclear Preparedness and structure of Nuclear Forces and then to the actual systems and weapons themselves. I think you make a real valuable contribution because a lot of the discussion of legality on Nuclear Forces has been a little structured and, frankly, barren, a little too binary. I think you made an important contribution there and im curious your thoughts as to the next level of discussion, what does International Law have to say about the other aspects . They become a question policymakers in the u. S. And other Nuclear States will consider in the future. Thanks. You are indeed pulling the thread what george was talking about earlier, can you explore ways to configure Nuclear Arsenals and policy and strategy to be more compliant with International Law. I dont think a whole lot of work has been done on that or if there has, im not that aware of it. It gets down to much of what you just said. It implicates strategy. What do you have your weapons for . What are the reasons behind possessing those Nuclear Lessons . Are they just deterrence . If so, deter what . Other types of attacks or insults to your leader or what have you. You would have to break that down and apply International Law in a factually specific way to those kinds of purposes. Posture and structure, what george was talking about, are there ways you could and Delivery Systems. Are there ways to design your Delivery Systems, for example, easier recall or ways to interrupt an attack that you started . Are your forces structured in a way that going back to the point made earlier that minimizes Collateral Damage, maybe by low yield weapons or that approach. It gets very factually complicated. It would be quite a task, an interesting task that would involve nuclear planners, policymakers, lawyers, and probably a similar way to what the nuclear planners had to do when instructed by obama to try to make our plans consistent with International Law, but go quite a bit further because they were dealing with the strategies we have in place and Weapons Systems we have in place as a static matter. Youre suggesting we can look even further, how can we change those and could there be some sort of agreement among various countries to go down that road. I havent given a lot of thought to that previously. I think its very interesting. One criticism might be if were going down that road, why arent we going straight for Nuclear Disarmament . Why not spend that time and energy trying to come up with verification schemes and improvement in interNational Security environment that would allow you to go to integration, raises an interesting issue and i dont have an answer to it. The gentleman, im forgetting your name, i do that a lot now. Im gilbert brown, emer tis professor at Nuclear Engineering at umass law. I was very intrigued from the question by the lady in the corner, to choose a 5 word, nexus, between peaceful uses and what youre doing. I did have some time at state. I wasnt privileged to engage directly but i was around all the activity 5, 6, 7 years ago. I was focused on peaceful uses. Do you think what youre doing has an effect on peaceful uses . I surely would have a different look on prospects of Nuclear Power. Nuclear power isnt the only quote peaceful use. What are the implications of peaceful uses and the related activities . Or power or agricultural, et cetera, et cetera. Well, i think it is true that in an environment where at least some countries arent parties to the mpt, there is some hesitancy and we have not achieved elimination of Nuclear Weapons, there is some hesitantsy to achieve Nuclear Cooperation with some countries we are concerned about. That has certainly been the history of the United States, going back and time, there are countries we were willing to engage with and countries were less willing to engage with. Some of that has eroded over time and we expanded those were willing to deal with. Without the elimination of Nuclear Weapons all together, there is a concern were helping this country learn about Peaceful Nuclear activities they may be able to parlay into Something Like a weapons program. Im not sure thats getting at your question, though. Wait for the mike. The Nuclear World is different than it was in 1954, december, 53. Yep. We dont have all the Technology Like we used to. So that doesnt stop the chinese or russians in particular or koreans, a handful of countries from exporting technology. Is this focus just a u. S. Focus . Because we have our rules of engagement, true, the 1, 2, 3 agreements in particular for exporting Nuclear Power plants and nuclear technology, but were not the only ones. We may not even be the leaders anymore. The question would be she issues lou was talking about, legality and use, dont really spill over into the terms of Nuclear Cooperation for peaceful purposes, 123 agreements, right . Right. But if the concern would be somehow not a preoccupation, attention to legal issues of using Nuclear Weapons would somehow make us more restrictive in Nuclear Cooperation, that doesnt happen so much, i think. Its really a strict nonproliferation focus, not about legality of deterrent. No. Its a perforation issue. [inaudible]. This gentleman right here. Thank you very much. Sam rising from pacific northwestern lab. Going back to strategy and posture and delivery, i found it interesting and wondered if we could unpack that a little bit, one of the big buzz words of pro and counter pro is entanglement, how conscious or unconscious entanglement would affect the strategy of posture and delivery. You have to tell me what you mean by entanglement. Colocation of forces conventional and conventional forces, Nuclear Forces, the entanglement of c 3i systems that our Nuclear Forces are dependent on, we might interpret and attack on our satellite system as a Nuclear Deterrent when in fact it might not be and chinese ballistic submarines are generally supported by conventional forces and may assume an attack on conventional forces in the South China Sea or strike deterrent. I wondered if you could impact how it impacts posture and delivery. Another example is cruise missiles where you dont know where theyre carrying a Nuclear Warhead or conventional warhead. In some ways, of course, everything is different in the nuclear context. In some ways, not an unusual situation in the law of war analysis, where you have ko location of military forces and millimeter supporting forces with populations. Sometimes thats the way things grew up and other times, its intentional to try to deter an attack by the other side. Those are the kinds of factual complexities that make it so difficult to do a proper analysis in the nuclear context. In any context, ill admit but nuclear more so. When you have the Nuclear Targeting parameters we have, not just the forces themselves but war supporting activities on top of that. It opens up so much Collateral Damage and if it takes place, the only country right now that has a no first use policy is china. Everybody else reserves the right to use Nuclear Force potentially in circumstances where theyre being attacked by something other than Nuclear Weapons. That does open up those kinds of concerns about, theyre attacking part of our command and control structure. Will that blind our Nuclear Forces and we have to launch in order to avoid their becoming ineffectual. So you get that complex of problems where we arent limiting our actions to Nuclear Attack and we have certain types of things we view as vital express in the Nuclear Posture reviews period like issued by the government and presumably some comparable type of concept for other governments as well. Those expanded areas of concern may be very highly entangled with civilian populations and even populations overseas of our allies. Again, its a long way of saying very factually complex and underscores the daunting task of trying to evaluate the humanitarian law in a vacuum without specific facts to look at. This gentleman here. Hello. Owen with the arms control association. You were talking about the application of article 6, foundation of mpt, predicated on the notion at that time there were really no favorable conditions for disarmament that would mean realistic disarmament in the future in the cold war. It has been revisited with this administration, where theyre quitting the armament for Nuclear Disarmament initiative. I was wondering what your view was on the efficacy of such a mission . Do you think thats the only way for the future, a change in the National Security environment might be able to achieve determent . I dont think you necessarily have to have complete elimination of International Conflict to tackle Nuclear Disarmament. Theres certain areas you have to resolve to get states to give up their Nuclear Weapons. South asia is one and theres others. Until you have security changes in security environment that allow those countries to be willing to give up their Nuclear Weapons, you cant even begin the process you can begin but it has to go parallel with the process of working out security arrangements between the u. S. And russia and the u. S. And china where we are comfortable giving those up. I dont think its an unachievable objective. I think its one difficult and will take time. I dont think were close to it honestly in the current environment. Let me add to that. I agree with what you said. Part of what it would require is very unnatural for countries, societies, at least historically. If Nuclear Weapons are historically attractive for weaker countries facing potentially stronger countries, right, think how its thought about versus india and u. S. And allies think about it versus russia and extending in japan because of china and israel got its Nuclear Weapons because of the arabs backed by russia. It would be a bigger power that would be aggressive if we didnt have Nuclear Weapons. That kind of requires the bigger powers to do things to not only assure the smaller ones, beyond my good intentions to physically reduce my advantage. Who does that . There are people who do that perhaps. Its an unnatural act, lets say. Can you imagine getting the u. S. Congress to say, we have an advantage here. Lets reduce the advantage in order to reassure these guys and then go on and get rid of Nuclear Weapons. Id like to live in that world even just to watch the debate but it isnt the one were in now. If you think thats the case here, i can take you to pakistan or estonia and other places closer to it. That isnt to say we have anything other than to try to do it and address the issue. If you see it in its more basic terms, its a real challenge. Yes. Milton from the International Gun and terrorism studies. A hypothetical question. Is there any possibility hyper velocity weapons would be able to take with their maneuverability and small area of impact would be able to take the place of lowyield Nuclear Weapons in these theoretical scenarios going around now . I can think of several people in the audience better to answer that question better than myself. One there and one there. I dont know if they want to answer it i would answer it if from the political strategic sense, that was something putin was worried about a decade, to provide a conventional capability to destroy strategic targets and leave them at a disadvantage and russia has done a lot to catch up than that capability. I would argue, whatever the physical capability, there has been a psychological and Political Convention of Nuclear Weapons that is different. Those two get mixed in because its precisely of the different psychological effects or wrapping around conventional weapons that putin was saying, they can really use these weapons because they dont come with all the psychological baggage. They could really use them and it could hurt us and we can counter them. The psychological of it cuts both ways. Brad roberts, you still have to introduce yourself. Brad roberts. I have the pleasure of working with noel on this. I wanted to expand the conversation on a different direction if i could. Back to the question of proportionality. This is one of those words it seems to me, we all have that experience in life talking to someone, sharing a common vocabulary and understanding after the fact we meant Something Different from each other. I have the impression thats so with the word proportionality. A lot of people think of it with having to do with the injury done and thus the question is about the reaction to the injury done. Some think about the injury prevented. Thats a matter of conjecture. If we adopt the former definition and ask what were hiroshima and nagasaki proportionate to . It wasnt the last japanese attack or immediately preceding japanese attack. May not have been the japanese attack on pearl harbor, an entire war strategy in employment of a particular u. S. War goal, which was unconditional surrender. I just invite you to and maybe for the fact the moment, set aside the nuclear topic and explain to us what International Law means when it comes to the topic of proportionality and how that difference from, your side at the end said about retaliati retaliation. Retaliation is not moral or legal so what is Nuclear Retaliation all about . I agree retaliation is a difficult topic. If you read the u. S. Law book manual, they go in and recognize some different views how you assess proportionality. I think in the u. S. View and probably the prominent predominant predominant view, its the military objective. Its somewhat subjective because what is your military objective . It does not have to be to respond to the previous attack. As i mentioned in the kuwait example, the attack had not only dislodged the iraqis but it made sure the iraqis could not the attacks by the iraqis could not recur. You mesh proportionality based on that military objective, and that can include whatever is legitimate in the context of that war. That goes to your example of world war ii, i think. Without getting into the debate whether that particular use was permissible or not, the military objective was to end the war. That is a permissible military objective. That is what military objectives are all about for either party. It again doesnt mean it has to be equal force. It doesnt mean it has to be calculated to stop the same kind of attack that just occurred. It has to be measured, based on what can be a very broad military objective as long as it is justified circumstances, not getting into the circumstances of hiroshima and nagasaki. Because of that, if it has that much flexibility in actual Nuclear Weapons, i think it has to have that if not more in a Nuclear Deterrence. The whole goal, if youre successful is no casualties and no attacks. Thats where i come down on proportionality. It is a complicated topic pneumonia. I want to jump in on this. I get why brad made the important point, and you did, too, and your paper makes it very well, what we normally think of proportionality, if i hit you half as hard as i can you hit me half as hard as i can an its different. On the other hand, the perspective one party would give is obviously so subjective. What i think in my requirement of the war or say use of Nuclear Weapons, i want to do it in a very limited way. On the other hand, i want to limit the damage you could do to me so i will add weapons and go after your capability. It ends up being a very Large Nuclear strike to achieve a nuclear objective but i say that to limit the damage. It looks disproportionate, but you can argue it is not, proportionate to what i have to do and all of the issues begs out for ajudication. Makes it nonajudd kalb. On one side you have very good lawyers to argue why its accomplishing this objective and other side, third parties standing back saying, you just devastated that country. How do you justify that . Thats there are injuries. Theres not a jury, though. I get it. I remember Robert Mcnamara saying hiroshima would probably have been adjudged a war crime. You look at the pictures and slides they gave to stenson of hiroshima and said this was a uniform factory and jeep factory, legitimate military target. It does ask for somebody other than the winner to preside over whether the argument that it was proportional or defensible arguments or not. The last pointed on this one, especially, i find the argument that supporters of the prohibition treaty make, and i dont support the treaty, but their argument, especially those who come from countries that would not be belligerent, dont get anything from Nuclear Deterrence, not their fight, but very possible radiation or nuclear, things that could seriously harm them. Theyre coming on, those guys get to choose and nobody evaluates it after, i get why then they reach for these other instruments, which i would argue arent going to work either. Then, if we say, tough, we have our lawyers and no one will hear your lawyers because theres no mechanism to hear them, that will be harder to sustain going forward. One more point. I cite the oil platform case in the paper an icj issue, that looked at it and whether the u. S. Could prove attacks on tankers were coming from Iranian Oil Platforms and therefore the u. S. Attacked the oil platforms. The u. S. Vigorously defended their decision, and i i see jay disagreed with it. The court comes in and says that was not a legitimate attack under the laws of war. Well, a good decision. So yes, maam. What about discrimination of civilians in the case of hiroshima and nagasaki . It seems blatantly clear they had no problem knowing many many civilians. I really dont want to get into that debate but its the problem of Nuclear Weapons, ill say that. Discrimination is a problem. I will grant the lowyield help with that issue of discrimination, potentially, but theres always a risk of escalation. Low new zealand perhaps increases the chances there will be low yield perhaps increases the chances there will be Nuclear Exchange. Since 1945, there have been occasions they could have been used in various context, and they were. I worry if we go down this road, well, its not that bad if one responds with a tactical Nuclear Weapon and the other responds with one, i worry about that because i dont think thats easily attainable. Discrimination is a problem with Nuclear Weapons and a problem with Nuclear Weapons. A problem with other weapons, oo too, and more so and particularly if you had this entanglement issue. I would add one thing on your very pointed question, which is there had already been years of firebombing. The principle of discrimination had gone away and not a remotely satisfaction about your answer, a strip tore that there was already wanton disruption in europe, including that by japanese forces. Nobody was playing biy laws of Armed Conflict and japanese used a biological weapon against china. To learn from that and the world has developed a lot more International Law since then, precisely for that reason. The month before world war ii started there were declarations about not targeting civilians and then within a month it went out the window. We have International Law and is growing its about the Research Scott has done about Public Opinion i think is relevant. We think we have these structures and i imagine how quickly it can be discarded . Its one of the reasons its written and were having this discussion. Susan cook, and then we will take one more and wrap up. Really, following up on what you just said. The question, first, is there a moral and legal difference from h hiroshima and nagasaki and discrimination and the fact that nagasaki is the last use of Nuclear Weapons and been on a pretty impressive run for Nuclear Deterrence. What is the moral and legal judgment about making its easier to have conventional war without the let the of Nuclear Weapons. Theyre eliminated . Taking the second question, i touch on that a little bit in my paper. As with virtually every issue in the Nuclear Field there are arguments on both sides whether the nuclear era is responsible for historically low period of people dying from violence and absence of war between the great powers, and those who said, no, there were other factors, after world war ii, the horrors wouldnt have happened anyway. It was reassessed. Theres no answer to that question but it is something you do have to think about if it is the case that the field of use of Nuclear Weapons is one of the restraining factors that at the point countries guesting that additional step of career, all of a sudden it becomes a power conflict, not just a regional conflict. Unknowable. Unfortunately. As for the difference between dread sen tokyo and hiroshimo versus nagasaki. Under the conventional laws, Nuclear Weapons are applied to the same as others. Are you engaging in a way that allows you to discriminate and minimizing Collateral Damage . I want to ask you all to join me in thanking you and then well thank you. [ applause ] if you missed live coverage we will have it live on