Foundations of Nuclear War Avoidance: An Intellectual and Legal Challenge

by Prof. Louis Rene Beres

“It must not be forgotten that it is perhaps more dangerous for a nation to allow itself to be conquered intellectually than by arms.” —Guillaume Apollinaire, “The New Spirit and the Poets” (1917)

Nuclear weapons remain unique in the history of warfare and corresponding international law. Even a single instance of nuclear war-fighting could signify an irremediable failure. In essence, nuclear weapons can succeed only though their non-use. The most obvious example of any such success would be stable nuclear deterrence amid nation-state strivings for “escalation dominance.”

There are relevant details, both military and legal. Prima facie, not all nuclear wars would have the same origin. Should deterrence fail, a core distinction would then concern probabilistic differences between a deliberate or intentional nuclear war and a nuclear war that would be unintentional or inadvertent? This would represent a vital and never-to-be ignored distinction.

Should nuclear deterrence fail, it could be on account of various antecedent arms control failures or shortcomings. Here, the intersections between strategy and law could be determinative. Accordingly, durable foundations of nuclear war avoidance should always include elements of treaty-based nuclear arms control.

Regarding strategic foundations, there will be serious problems of science-based calculation. Because there has never been an authentic nuclear war (Hiroshima and Nagasaki don’t “count.” However, the atomic attacks on Japan in August 1945 represented nuclear weapons use in a conventional war) determining relevant probabilities would become a severely problematic task. In logic and mathematics, after all, true probabilities must derive from the determinable frequency of pertinent past events. When there are no such past events, nothing can be determined with sufficiently predictive reliability.

Capable analysts will still have to devise optimal strategies for calculating and averting a nuclear war – any nuclear war. This indispensable calculation will vary, among other things, according to (1) presumed enemy intention; (2) presumed plausibility of accident or hacking intrusion; and/or (3) presumed plausibility of a decisional miscalculation. Conceptually, when taken together as cumulative categories of a potential nuclear war threat, the three component risks of unintentional nuclear war would best be described as “inadvertent.” Of necessity, any particular case of an accidental nuclear war would be inadvertent. Not every case of inadvertent nuclear war, however, would be the result of an accident.

All of these listed examples represent potentially interrelated elements of nuclear war avoidance. This many-sided problem should never be approached by American national security policy-makers or the president as a narrowly political or tactical issue. Rather, informed by suitably in-depth historical understanding and carefully refined analytic capacities, US military planners should prepare themselves to deal with a large variety of overlapping explanatory factors/norms, including jurisprudential or legal ones. Regarding these pertinent considerations of law, issues of personal criminal responsibility must be ones of high importance. Significantly, criminal responsibility of leaders under international law is not limited to direct personal action or limited by official position. On this peremptory principle of “command responsibility,” or respondeat superior, see In re Yamashita, or The High Command Case (The Trial of Wilhelm von Leeb). The direct individual responsibility of leaders is also unambiguous in view of the London Agreement, which denies defendants the protection of the act of state defense.

There is more. At times, the intersections under study could be determinably synergistic. At such bewildering times, the “whole” of any injurious effect would be greater than the sum of its “parts. Going forward, focused attention on pertinent synergies should remain a distinctly primary analytic objective.

In dealing with certain still-growing nuclear war risks involving North Korea, no single concept could be more urgently important than synergy. Unless such interactions are reliably and correctly evaluated, the American president could sometime underestimate the total impact of any considered nuclear engagement. Incontestably, the tangible flesh and blood consequences of such underestimations would likely be very high. To wit, they could defy analytic imaginations and any post-war legal justifications.

Looking ahead, in any complex strategic risk assessments regarding North Korean military nuclear intentions or expanding Russian nuclear threats over Vladimir Putin‘s genocidal aggression against Ukraine, the concept of synergy should be assigned an appropriate pride of place. The only conceivable argument for an American president deliberately choosing to ignore the effects of any pertinent synergy would be that the associated US defense policy considerations appear “too complex” for capable analysis. When genuinely fundamental US national security issues are at stake, any such viscerally dismissive argument would be ill-considered and unacceptable.

For this writer/scholar, all such reasoning has long been familiar intellectual terrain. I have been publishing about difficult and related strategic-legal issues for more than fifty years. After four years of doctoral study at Princeton in the late 1960s, historically a prominent center of American nuclear strategic thought (recall especially Albert Einstein and J. Robert Oppenheimer), I began to consider adding a modest personal contribution to evolving nuclear literatures. By the late 1970s, I was cautiously preparing a new manuscript on US nuclear strategy (Earlier, by this author, see: Louis René Beres, The Management of World Power: A Theoretical Analysis (University of Denver, 1973) and Transforming World Politics: The National Roots of World Peace (University of Denver, 1975), and, by variously disciplined processes of correct inference, on the corresponding risks of a nuclear war.

At that early stage of the then-emerging discipline, I was especially interested in US presidential authority to order the use of American nuclear weapons. From day one, I learned that allegedly reliable safeguards had been incorporated into all operational nuclear command/control decisions, but also that these same safeguards could not be applied at the presidential level. To a young scholar searching optimistically for meaningful nuclear war avoidance opportunities, this ironic disjunction didn’t make any obvious sense. So, what next?

It was time for gathering suitable clarifications. I reached out to retired General Maxwell D. Taylor, a former Chairman of the US Joint Chiefs of Staff. In reassuringly rapid response to my query, General Taylor sent a comprehensive handwritten reply. Dated 14 March 1976, the distinguished General’s detailed letter concluded ominously: “As to those dangers arising from an irrational American president, the only protection is not to elect one.”

Until recently, I had never given any extended thought to this authoritative response. Today, following the dissembling presidency of Donald J. Trump, General Taylor’s 1976 warning plainly takes on more urgent meanings. Based on ascertainable facts and logical derivations (technically called “entailments” in formal philosophy of science terminology) rather than wishful thinking, we should now reasonably assume that if Donald J. Trump were to return to the White House and exhibit accessible signs of emotional instability, irrationality or presumptively delusional behavior, he could still order the use of American nuclear weapons. He could do this officially, legally and without any compelling expectations of nuclear chain-of-command “disobedience.” Here, meaningful considerations of law would be more-or-less bifurcated between domestic or municipal law and international law. Still, international law is part of United States jurisprudence. In the words of Mr. Justice Gray, delivering the judgment of the US Supreme Court in Paquete Habana (1900): “International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction….” Still, there could remain certain authoritative considerations of international law, specifically those having to do with strategies of preemption or “anticipatory self-defense.

Still more worrisome, President Trump could become emotionally unstable, irrational or delusional, but not exhibit such grave liabilities conspicuously.

What then?

A corollary question should also come to mind:

What precise stance should be assumed by the National Command Authority (Secretary of Defense, Chairman of the Joint Chiefs of Staff, and several others) if it should ever decide to oppose an “inappropriate” presidential order to launch American nuclear weapons?

Could the National Command Authority (NCA) “save the day,” informally, by acting in an impromptu or creatively ad hoc fashion? Or should indispensable preparatory steps already have been taken, in advance, preemptively? That is, should there already be in place certain credible and effective statutory measures to (1) assess the ordering president’s reason and judgment; and (2) countermand any inappropriate or wrongful order?

Presumptively, in US law, Article 1 (Congressional) war-declaring expectations of the Constitution aside, any presidential order to use nuclear weapons, whether issued by an apparently irrational president or by an otherwise incapacitated one, would have to be obeyed. To do otherwise, in such incomparably dire circumstances, would presumptively be illegal. Here, therefore, any chain-of-command disobedience would be impermissible on its face.

There is more. In principle, at least, US President Donald Trump could order the first use of American nuclear weapons even if this country were not under any specifically nuclear attack. Some further strategic and legal distinctions would need to be made between a nuclear “first use” and a nuclear “first strike.” These would not be minor distinctions. Also, under authoritative terms of international law, there would be coinciding concerns about the egregious crime of “aggression.”

While there exists an elementary yet substantive difference between these two options, it is an operational distinction that candidate Donald Trump failed to understand during the 2016 presidential campaign debates. Significantly, as this former and now re-aspiring president reads nothing about such matters—literally nothing at all—there remains good reason for certain additional US nuclear policy refinements.

What next? Where exactly should the American polity and government go from here on such overriding national security decision-making issues? To begin, a coherent and comprehensive answer will need to be prepared for the following basic question:

If faced with any presidential order to use nuclear weapons, and not offered sufficiently appropriate corroborative evidence of any actually impending existential threat, would the National Command Authority be: (1) be willing to disobey, and (2) be capable of enforcing such needed expressions of disobedience?

In any such unprecedented crisis-decision circumstances, all authoritative judgments could have to be made in a compressively time-urgent matter of minutes, not hours or days. As far as any useful policy guidance from the past might be concerned, there could exist no scientifically valid way to assess the true probabilities of possible outcomes. This is because all scientific judgments of probability—whatever the salient issue or subject—must be based upon recognizably significant past events.

In matters of nuclear war, there are no pertinent past events. This is a markedly fortunate absence, of course, but still one that would stand in the way of rendering reliable decision-making predictions. The abundant irony here is both obvious and dangerous.

Whatever the determinable scientific obstacles, the optimal time to prepare for any such incomparably vital US national security difficulties is now. Once we were already in extremis atomicum, it would be too late.

Regarding the specific matter of North Korea (Iran is not yet nuclear), the American president will need to avoid any seat-of-the-pants analogies (whether openly expressed or “merely” internalized) between commercial bargaining and military brinksmanship. Faced with dramatic uncertainties about counterpart Kim Jung Un’s own expected willingness to push the escalatory envelope, the American president could sometime (suddenly and unexpectedly) find himself faced with a fearfully stark choice between outright capitulation and nuclear war. Even for a genuinely gifted US president (hardly a present-day consideration), any such choice could prove “paralyzing.”

To avoid being placed in such a limited choice strategic environment, a president should understand that simply having a larger national nuclear force in these sorts of negotiations might not bestow any critical bargaining or outcome advantages. On the contrary, this seeming advantage could generate unwarranted US presidential overconfidence and various resultant forms of decisional miscalculation. In any such wholly unfamiliar, many-sided and unprecedented matters, size could matter, but perhaps counter-intuitively, inversely, or even in various ways not yet fully understood.

More than likely, prosaic analogies would be misconceived. Nuclear war avoidance is not a matter resembling and commercial or investment negotiation. While the search for some sort of “escalation dominance” may be common to many sorts of deal-making, the cumulative costs of any related nuclear security policy losses could simply be incomparable or one-of-a-kind.

There is more. In certain fragile matters of world politics, even an inadvertent decisional outcome could sometime be nuclear war. Here, whether occasioned by accident, hacking or “mere” miscalculation, there could be no meaningful “winner.” At a conceptual minimum, any US president ought to understand this as elementary.

In the paroxysmal aftermath of any unintended nuclear conflict, those authoritative American decision-makers who had once accepted former President Donald J. Trump’s oft-stated preference for “attitude” over “preparation” in strategic negotiations would likely reconsider their earlier reasoning. By then, however, it would already be too late. As survivors of a once-preventable nuclear conflagration, now-stunned officials could only envy the dead. This is the case, moreover, whether the nuclear conflict had been intentional or unintentional, whether it was occasioned by base motives, miscalculation, computer error, hacking intrusion, or by some weapon-system/infrastructure accident.

Today, 78 years after Hiroshima and Nagasaki, nuclear war remains an incurable disease. To ensure credible deterrence, a US president would no longer needs to respond to a nuclear attack immediately. Because the triad of strategic forces includes cumulatively invulnerable submarine forces, this country no longer needs to rely upon am inherently destabilizing “launch on warning” nuclear posture. This means, among other things, that a president of the United States need no longer require sole decisional authority over America’s nuclear weapons.

At some point, any continuing failure of United States law and practice to acknowledge this sobering transformation could lead to another historical use of nuclear weapons – by this country, by its then-evident adversary or both. In any such scenario, the atomic conflagration would dwarf the 1945 effects of Hiroshima and Nagasaki. It follows, above all else, that nuclear war avoidance is mandated by human reason.

Physicist and Manhattan Project director J. Robert Oppenheimer, the subject of a new film released in July 2023, clung to the hope that nuclear weapons could somehow become peace-maximizing rather than destabilizing. Accordingly, in a lecture delivered before the George Westinghouse Centennial Forum on May 16, 1946, he commented: “The development of nuclear weapons can make, if wisely handled, the problem of preventing war not more hopeless, but more hopeful than it would otherwise have been….” Back in 1946, however, Oppenheimer did not anticipate a broad variety of troublesome issues, including the proliferation of nuclear weapons (“vertical” and “horizontal”) to states and sub states, risks of an unintentional nuclear war, the failure of law-based nuclear arms control and the inextinguishable irrationality of human decision-makers seeking “escalation dominance” during precarious crises. Today, looking toward an uncertain national and global future, the only rational course is to collectively eschew nuclear weapons as a prospective benefit, and to do whatever is necessary in both law and strategy to build more durable foundations of nuclear war avoidance.

For the most part, this uniquely challenging task will be intellectual rather than political. In essence, what we need today is a form of “reverse” Manhattan Project, one dedicated to untying us all from the potentially mad clockwork first set in motion during the summer of 1945. This indispensable goal can never be achieved in the context of long-standing processes of belligerent nationalism and unpredictable escalations. To the contrary it will require, at the outset, a planet-wide collaboration between major world powers and also more suitably law-based structures of supra-national coordination. The odds of achieving tangible success in these efforts would surely be unfavorable, but still less unfavorable than continuing to accommodate nuclear war avoidance with traditional geopolitics.

Louis Rene Beres was educated at Princeton (Ph.D., 1971) and is the author of many books and articles dealing with nuclear strategy and world order reform. Dr. Beres, Professor Emeritus of International Law at Purdue, publishes at The New York Times; The Atlantic; Jewish Business News; Harvard National Security Journal (Harvard Law School); JURIST; Bulletin of the Atomic Scientists; Yale Global Online (Yale University); World Politics (Princeton); International Journal of Intelligence and Counterintelligence; Infinity Journal (Tel Aviv); BESA Perspectives (Israel); INSS Strategic Assessment (Tel Aviv); Modern War Institute (West Point); The War Room (Pentagon); Parameters: Journal of the US Army War College (Pentagon); Armed Forces and Society; global-e (University of California); Special Warfare (Pentagon); Horasis (Switzerland); Modern Diplomacy; JURIST; Brown Journal of World Affairs (Brown University); International Security (Harvard); Air-Space Operations Review (USAF); American Political Science Review; American Journal of International Law; Strategy Bridge; Strategic Review; and Middle East Review of International Affairs.

This article was first published in Jurist.