Abstract

What were the effects of the US’s move from denying to accepting that the laws of armed conflict (LOAC) apply to nuclear weapons? We argue that the legalization of nuclear guidance and plans changed the US nuclear posture, which is now shaped by the principles of distinction and proportionality. However, the US interpretation of these principles is also shaped by unproven, but widely held, beliefs about the requirements of nuclear deterrence, what we call “creeds.” US nuclear and legal targeting doctrines are co-constituted: Partly to accommodate nuclear creeds, the United States contests widely accepted interpretations of distinction and proportionality, thereby keeping nuclear targets on the table that challenge LOAC. We propose three concrete shifts in how the United States could better apply distinction and proportionality to nuclear weapons: first, narrow the definition of military objectives to exclude purely political control capabilities; second, broaden the understanding of intent by renouncing civilian casualties as a secondary purpose of nuclear strikes; third, develop better models of long-term effects of nuclear use and include these effects in proportionality calculations. We argue that following LOAC more rigorously would not, as often feared, weaken nuclear deterrence. Instead, it could strengthen it.

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