by Prof. Louis Rene Beres
Abstract: Earlier, as part of Russia’s escalating aggression against Ukraine – an aggression that now includes armed attack on a nuclear power plant – President Vladimir Putin placed his nuclear forces on high alert. Correspondingly, the United States should now recalibrate how best to “play” the increasingly complex “games” of military nuclear strategy. Most worrisome, in this regard, will be assorted scenarios of inadvertent and accidental nuclear war. Though unwelcome to all “civilized nations,” irremediable failures of nuclear deterrence could sometime take place without deliberate intent. Much of the still-impending existential hazard will lie in the unpredictable struggle for “escalation dominance” over Russia, a threat-based struggle that could help Ukraine, but only if the United States takes incrementally greater nuclear risks.
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Primacy of the Nuclear War Problem
Soon, though it had been “off the radar” for some time, nuclear war avoidance has once again become the world’s overriding policy obligation. The justification for such a resurrected rank-ordering is straightforward and not at all mysterious. In brief, if the world should fail to prevent a nuclear war over Russia’s aggression against Ukraine, all other sought-after human values would be imperiled.
Various specific policy questions will need to be answered immediately. Above all, analysts must query, what should be done to limit and remedy Russia’s ongoing aggression, war crimes and crimes against humanity? What can be said more precisely in relevant law about the responsibility of Russian army soldiers for their president’s multiple crimes against Ukraine? Without exaggeration, these egregious crimes now begin to compare with what was unleashed by another dangerous dictator in early September 1939.
There is more. To begin, US and allied national leaders must accept that even generally unwanted escalatory breakdowns could occur. On the specific matters of nuclear deterrence, matters rendered even more time-urgent by Putin’s announced posture of “nuclear high alert,” this means refining pertinent threat-based strategies of “escalation dominance.” In essence, nuclear deterrence is a “game” that major world leaders will sometime have to play, most plausibly over Ukraine. It follows that these leaders can learn to join this hideously complex game purposefully and skillfully, or instead merely deal with it on an ad hoc basis and with marginal policy attentiveness.
The optimal choice here will be one that obviates any further or escalating warfare between the players, but that also puts an end to ongoing Russian crimes of war and crimes against humanity. Therein lies the core dilemma: For the United States and NATO to meaningfully help Ukraine, they will first have to construct and skillfully “climb” an unstable escalation “ladder.”
Going forward, controlling nuclear proliferation will become increasingly important and potentially overriding for world politics and global diplomacy. In this connection, it would prove problematic to assume that nuclear deterrence credibility must always correlate positively with military threat destructiveness. Indeed, from the standpoint of stable nuclear deterrence, the likelihood of any actual nuclear conflict between states could sometimes relate inversely to the plausibly expected magnitude of catastrophic harms.
There is much more. Regarding the probability of a nuclear war, one tangible understanding is axiomatic. This particular understanding stipulates that determinable differences in probability will depend upon whether the particular war in question is intentional or inadvertent. Subsequently, a further analytic division must always be made between an inadvertent nuclear war caused by decisional errors in calculation and a nuclear war occasioned by accident, hacking or computer malfunction.
For the United States and its allies now fashioning policy over Ukraine, no authentically scientific estimations of nuclear war likelihood could be made apart from such a prior conceptual distinction.
Nuclear proliferation has been dealt with by competent nuclear strategists for decades, usually, by capable thinkers who understand that any alleged benefits of nuclear spread would be overridden by unimaginably staggering costs. To wit, the proliferation-expanded risks of inadvertent nuclear war, accidental nuclear war, nuclear war by irrationality/coup d’état and nuclear war by miscalculation are both manifest and indisputable.
How did global jurisprudence get to its present position? An answer obtains. The “Westphalian” system of international relations and international law first bequeathed by treaty law in 1648 remains fundamentally unchanged. It remains rooted in anarchy and is subject to a steady worsening by chaos. Prima facie, the ongoing unwinding of civilized life in Ukraine signals the rapidly-growing and potentially intolerable costs of such chaos.
The Deteriorating Balance of World Power
Historically, the idea of a balance of power – an idea of which the nuclear-age balance of terror is a variant – has never been more than facile metaphor. In fact, it has never had anything to do with ascertaining any true equilibrium. As such a “balance” is always a matter of individual and necessarily subjective perceptions, adversary states can never be sufficiently confident that strategic circumstances are oriented in their favor. In consequence, each side in our still-Westphalian world order must perpetually fear that it will be left behind. Accordingly, the continual search for balance only produces ever wider patterns of insecurity, inequality, disequilibrium and legal wrongdoing.
At the start of the Cold War (now best re-titled as “Cold War I”), the United States first began to codify rudimentary orientations to nuclear deterrence and nuclear war. At that time, the world was tightly bipolar and the enemy was the Soviet Union. Tempered by a shared knowledge of the horror that temporarily ceased in 1945, each superpower had understood a conspicuously core need for expanding global cooperation (to wit, the United Nations) as necessary adjunct to conflict preparedness.
With the start of the nuclear age, American national security was premised on grimly primal threats of “massive retaliation.” Over time, especially during the Kennedy years, this bitterly corrosive policy was softened by subtler and more nuanced threats of “flexible response.” Along the way, a coherent and generalized American strategic doctrine was crafted in increments to accommodate almost every conceivable kind of adversary and adversarial encounter.
Systematic and historically grounded, this doctrine was developed self-consciously and with very deliberate prudence. In its actual execution, however, much was left to “seat-of-the-pants” calculations. In this regard, the 1962 Cuban missile crisis speaks for itself.
Strategic doctrine, earlier generation defense intellectuals had already understood, is a “net.” Only those who cast, can expect to catch. Nonetheless, even the benefits of “casting” would remain subject to various considerations of individual human personality. In the terms of professional strategic thinkers, there would always remain an “idiosyncratic factor.”
Although for a time immediately after collapse of the Soviet Union the world became increasingly multipolar, we are now witnessing the start of “Cold War II.” This time, however, there will likely be more conspicuous points of convergent interest and prospective cooperation between Washington and Moscow. In principle at least (e.g. current mutual concerns for controlling Jihadist terrorism) “Cold War II” could potentially offer a propitious or even improved context for overlapping strategic interests.
Yet, even after the continuation in force of New START between the U.S. and Russia, Moscow continues to reinvigorate its production of intercontinental ballistic missiles, and ICBM supporting infrastructures. In part, this represents a predictable Russian response to fears that America may be expanding its plans for expanded ballistic missile defense in Europe, and (as corollary) for enlarging NATO blueprints to advance allegedly aggressive strategies of “encirclement.”
The Wider Geo-Strategic Context
At this moment. US strategic planners should be thinking especially about already-nuclear North Korea and Pakistan and a still prospectively nuclear Iran. Among other issues, Tehran’s repeated calls for “removing” Israel as a state are unambiguously exterminatory; in law, they also represent an “incitement to genocide.” Looking ahead, military nuclear developments in North Korea, Pakistan and Iran could prove synergistic, circumstances that are largely unpredictable and potentially overwhelming.
There will also be legal considerations of justice. Nullum crimen sine poena; “No crime without a punishment,” was a key principle of justice reaffirmed at Nuremberg, in 1946. This principle likely originated in the Hebrew Bible and the Lex Talionis or law of exact retaliation.
The Trump-brokered Abraham Accords have had no discernible effects upon preventing nuclear war in the Middle East. If anything, Iran was only made more belligerent by the Accords’ design to diminish Iranian power, and certain major Sunni Arab states (probably Egypt and/or Saudi Araba) will soon feel new incentives to nuclearize themselves. In all such uncertain cases, there will emerge more-or-less plausible issues of enemy irrationality. Regarding such “special” situations, ones where leadership elites in Pyongyang, Islamabad, Tehran or elsewhere might sometime value presumed national or religious obligations more highly even than national physical survival, the logic of deterrence could fail. Such failure, moreover, could be sudden and catastrophic.
Any such fearful scenario is “probably improbable,” but it is by no means inconceivable. This hesitancy-conditioned probability calculation is effectively mandated by assorted fixed limitations of science. More precisely, one can never speak reliably about the probability of unique events (all probability judgments must be based upon the determinable frequency of past events). Fortunately, of course, there has never been a genuine nuclear war.
Again, important for leaders to understand will be various possible interactions or synergies between changing adversaries and their particular ties to China, Syria and Russia. In managing such strategic threats, Cold War II will hurt our already imperiled planet and carry heavy legal burdens for criminal regimes such as Vladimir Putin’s Russia.
Strategic policies will have to deal with a variegated assortment of sub-national threats of WMD terrorism. Until now, insurgent enemies were sometimes able to confront states with serious perils and in assorted theatres of conflict, but they were never really capable of posing any catastrophic hazard to a nation’s homeland.
To face any such unprecedented and portentous situation, national leaders will need to “arm” themselves with antecedent nuclear doctrine and policies. By definition, such doctrine and policies should never represent “seat of the pants” reactions to ad hoc threats. Rather, because generality is a trait of all serious meaning in science, such doctrine and policies will have to be shaped according to broad categories of strategic threat. In the absence of such previously worked-out conceptual categories, human responses are almost certain to be inadequate or worse.
Rationality, Irrationality and Strategies of Preemption
From the start, all strategic policies have been founded upon some underlying assumption of rationality. We humans have always presumed that our enemies, states and terrorists, will inevitably value their own continued survival more highly than any other preference or combination of preferences. But this core assumption can no longer be taken for granted.
Expressions of decisional irrationality could take various different and overlapping forms. These forms include a disorderly or inconsistent value system; computational errors in calculation; an incapacity to communicate efficiently; random or haphazard influences in the making or transmittal of particular decisions; and the internal dissonance generated by any structure of collective decision-making (i.e., assemblies of individuals who lack identical value systems and/or whose organizational arrangements impact their willing capacity to act as a single or unitary national decision maker).
Confronted with Jihadist enemies, states and terrorists, world leaders must quickly understand that our primary threats to retaliate for first-strike aggressions could sometime fall on deaf ears. This holds true whether we would threaten massive retaliation (MAD), or instead, the more graduated and measured forms of reprisal termed nuclear utilization theory (NUT).
Ultimately, sensible. nuclear doctrine must recognize certain critical connections between law and strategy. From the formal standpoint of international law, certain expressions of preemption or defensive first strikes are known as anticipatory self-defense. Expecting possible enemy irrationality, when would such protective military actions be required to safeguard the human homeland from diverse forms of WMD attack?
This is an all-important question to be considered.
There are pertinent jurisprudential issues for decision-makers and commanders. Recalling that international law is part of the law of the United States, most notably at Article 6 of the Constitution (the “Supremacy Clause”) and at a 1900 Supreme Court case (the Pacquete Habana), how could anticipatory military defense actions be rendered compatible with conventional and customary obligations? This critical question must be raised, and answered.
There is more. From the standpoint of international law, it is always necessary to distinguish preemptive attacks from preventive ones. Preemption is a military strategy of striking first in the expectation that the only foreseeable alternative would be to be struck first oneself. A preemptive attack is launched by a state that believes enemy forces are about to attack. A preventive attack, on the other hand, is launched not out of any genuine concern about “imminent” hostilities, but for fear of some longer-term deterioration in a prevailing military “balance.”
In a preemptive attack, the length of time by which the enemy’s action is anticipated is presumptively very short; in a preventive strike, the anticipated interval is considerably longer. A related problem here is not only the practical difficulty of accurately determining “imminence,” but also the problems of postponement. To the point, delaying a defensive strike until an imminent threat would be tangibly ascertainable could invite existential harms. Any state’s resort to “anticipatory self-defense” could be nuclear or non-nuclear, and be directed at either a nuclear or non-nuclear adversary.
Any such resort involving nuclear weapons on one or several sides could prove catastrophic. World leaders must understand that any proposed national strategic doctrine will need to consider and reconsider key issues of nuclear targeting. Relevant operational concerns here would concern vital differences between the targeting of enemy civilians and cities (so-called “counter value” targeting) and targeting of enemy military assets/infrastructures (so-called “counterforce” targeting).
Most national leaders still don’t realize that the actual essence of “massive retaliation” and MAD was always an unhidden threat of counter value targeting.
Any such partially-resurrected doctrine could sound barbarous or at least inhumane, but if the alternative were less credible systems of nuclear deterrence, certain explicit codifications of counter value posture might still become the best way to prevent millions of civilian deaths – i.e., deaths from nuclear war and/or nuclear terrorism. Neither preemption nor counter value targeting could ever guarantee absolute security for Planet Earth, but it is nonetheless imperative that we put serious strategic thinkers to work on these and other critically-related nuclear warfare issues.
Operating According to Prior Plan
The first time that a world leader will have to face an authentic nuclear war crisis, his/her response should flow seamlessly from broad and previously calibrated strategic doctrine. It follows that national leaders should already be thinking carefully about how this complex doctrine ought best to be shaped and codified. Whatever the particulars, these leaders must acknowledge at the outset the systemic nature of our “world order problem.”
Any planetary system of law and power management that seeks to avoid nuclear war must recognize a significantly underlying axiom: As egregious crimes under international law, war and genocide need not be mutually exclusive. On the contrary, as one may learn from history, war could sometimes be undertaken as an “efficient” manner of national, ethnical, racial or religious annihilation. When the war in question becomes a nuclear one, the argument for genocide becomes unassailable.
In the final analysis, global rescue must go beyond narrowly physical forms of survival. At stake is not “just” the palpable survival of Homo sapiens as a distinct animal life form, but also the species’ essential humanitas. For now, too-few species members have displayed any meaningful understanding of this less tangible but still vital variant of human survival.
“Just wars,” wrote Hugo Grotius, the unchallenged founder of modern international law, “arise from the love of our innocent.” Now, however, it is plain, by definition, that a nuclear war could never be “just” and that certain earlier legal distinctions (e.g., just war vs. unjust war) must be continuously conformed to the ever-changing technologies of military destruction. The only sensible adaptation in this regard must be to acknowledge the persisting connections between international law and natural law, and then to oppose any retrograde movements by powerful nation states to undermine such acknowledgments.
Always, the only reasonable use for nuclear weapons will be as controlled elements of dissuasion, not as actual weapons of war. The underlying principles of any such rational diplomatic posture go back long before the advent of nuclear weapons. In his oft-studied classic On War (see especially his Chapter 3, “Planning Offensives”), the ancient Chinese strategist Sun-Tzu reminded succinctly: “Subjugating the enemy’s army without fighting is the true pinnacle of excellence.” Later, along these same lines of inquiry, Carl von Clausewitz underscored the inevitable intellectual impediment: “Everything is very simple in war,” says Clausewitz, in his classical discussion of “friction” in On War, “but the simplest thing is difficult.”
Herein, this concept refers to the unpredictable effect of errors in knowledge and information concerning US-Russian strategic uncertainties; on US and Russian under-estimations or over-estimations of relative power position; and on the unalterably vast and largely irremediable differences between theories of deterrence and enemy intent “as it actually is.”
The Problem of Uncertainty
A central analytic problem here remains the uncertainty felt by every state concerning reciprocal intentions of other pertinent states or sub-state decision-makers. To become more effective, Russia-sanctioning efforts must soon be oriented toward expanding control over too many separate and independent national wills. Gaining such imperative control is also a specific example of a more general human problem; i.e., the decisional difficulty that arises whenever benefits of common or collective action are contingent on a reliable expectation that certain other “players” will cooperate. The core dynamics of this problem were already described metaphorically by philosopher Niccolo Machiavelli in The Discourses:
The world is a stupendous machine, composed of innumerable parts, each of which being a free agent has a volition and action of its own; and on this ground arises the difficulty of assuring success in any enterprise depending on the volition of numerous agents. We may set the machine in motion, and dispose every wheel to one certain end; but when it depends on the volition of any one wheel, and the corresponding action of every wheel, the result is uncertain.
At the same time, nuclear war avoidance must include strategies that can reduce the likelihood of an inadvertent nuclear war. For the United States, such strategies will have to reference scenarios based on decisional miscalculation by leaders, prospects of leadership irrationality and also nuclear conflicts caused by enemy hacking or computer/mechanical/electrical malfunction. In executing this overriding policy task, imagining the world of international relations in terms of Machiavelli’s “stupendous machine” could prove intellectually challenging and prescriptively gainful.
There is not much time left. “The worst does sometime happen.”
Louis Rene Beres was educated at Princeton (Ph.D., 1971), and is Emeritus Professor of International Law at Purdue. His twelfth book, Surviving Amid Chaos: Israel’s Nuclear Strategy, was published in 2016. His other writings have been published in Harvard National Security Journal; Yale Global Online; World Politics (Princeton); Bulletin of the Atomic Scientists; Israel Defense; Parameters: Journal of the US Army War College; Special Warfare; Oxford University Press; The Jerusalem Post; Infinity Journal; BESA Perspectives; US News & World Report; The Hill; and The Atlantic.
His Terrorism and Global Security: The Nuclear Threat (Westview, first edition, 1979) was one of the first scholarly books to deal specifically with nuclear.
You may find here his latest law review article Israeli Nuclear Deterrence And International Law: Calculating Effects Of Power Politics And Pandemics.
This article was first published on Moderndi Dlomacy
This article was first published in Jurist