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