The critical issue that would have to be addressed by U.S. military commanders regarding the use of nuclear weapons under international law is that of proportionality. According to the International Court of Justice (ICJ), the issue of proportionality holds that even if an attack is directed at military targets, it would be considered unlawful if it causes harm to civilians and civilian objects that "would be excessive in relation to the concrete and direct military advantage anticipated." It was the opinion of the ICJ that "It cannot be accepted that the use of nuclear weapons on a scale which would -- or could -- result in the deaths of many millions in indiscriminate inferno and by far-reaching fallout, have profoundly pernicious effects in space and time, and render uninhabitable much or all of the earth, could be lawful." However, some within the ICJ held that the use of nuclear weapons would, in fact, be lawful if the military target was "so situated that substantial civilian casualties would not ensue."
While there is no debating that any indiscriminate use of nuclear weapons against Iranian civilian and industrial targets would constitute a clear violation of customary international law, there are certain target sets in Iran which, because of their remoteness and composition, could fall into the category of an exception referred to in the dissenting ICJ opinion.
Iran has concentrated its uranium enrichment potential in two locations. The first is the Natanz uranium enrichment facility, which is about 19 miles from the city of Natanz (population 12,000) and 43 miles from the city of Kashan (population 400,000). The actual halls in which the cascades used to enrich uranium are installed are situated about 10 yards (nine meters) underground and are covered by thick reinforced concrete slabs further covered by 24 yards (22 meters) of earth. The second is the Fordow uranium enrichment facility, which is about 98 yards (90 meters) underground, buried into the side of a mountain. The nearest village is Fordow, with a population of about 800; the closest major population center is the city of Qom, about 20 miles away.
The U.S. currently has one nuclear weapon that is optimized for both targets -- the B61-11 gravity bomb. Designed during the Gulf War to address the problem of buried Iraqi targets, the B61-11 entered the U.S. nuclear arsenal in the late 1990s. It uses a modified version of the casing employed by the GBU-28 conventional deep penetration bomb, and reportedly has a variable yield, which can be "dialed in" by the pilots depending on the target being struck, of from 0.3 to 340 kilotons. Based upon achieving a penetration depth of three meters and a yield of 0.3 kilotons, the B61-11 could destroy a target buried under more than 16 yards (15 meters) of hard rock or concrete. Similarly, a yield of 340 kilotons at the same penetration would allow a hardened target buried up to about 76 yards (70 meters) to be destroyed.
As such, if the president, acting in his capacity as the commander in chief of the Armed Forces of the United States, ordered a nuclear attack using B61-11 gravity bombs against either Natanz, Fordow or both, the issue of proportionality would be satisfied given the fact that both targets are sufficiently removed from major population centers as to limit the collateral damage that would occur following a nuclear detonation. Moreover, the hardened status of both targets means their respective destruction could not be guaranteed by conventional attacks alone.
This is the scenario that could be followed by President Trump in ordering a nuclear strike against Iran that would be considered legal under the law of war, and as such executable by his military commanders. In any event, the president could always argue that, regardless of its substance, customary international law is not binding to the executive branch under the Constitution because it is not federal law.
There was one additional roadblock to the use of nuclear weapons -- U.S. policy as set out in the Department of Defense's Nuclear Posture Review (NPR), which, according to Kehler, "provided important context regarding the consideration of U.S. nuclear use (i.e., extreme circumstances when vital national interests are at stake)." Inherent in this context was the stated policy found in the "negative security guarantee" that the U.S. would not consider using nuclear weapons against any non-nuclear weapons state that is a party to the Nuclear Nonproliferation Treaty (NPT) and remains in compliance with its nonproliferation obligations. When this guarantee was first made, in the context of the 2010 NPR, then-Secretary of Defense Robert M. Gates stated that it did not apply to Iran, because Iran was not in compliance with the NPT. For Iran, Gates noted, "all bets are off. All options are on the table."
Iran's status changed following the finalization of the Joint Comprehensive Program of Action, or JCPOA (better known as the Iran Nuclear Agreement) in 2015. If Iran complied with the provisions set forth in this agreement, it would be in full compliance with its obligations under the NPT, and the "negative security guarantee" would be applicable. This is precisely what occurred -- until, that is, President Trump precipitously withdrew from the JCPOA in May 2018.
In the following year, Iran fully complied with its obligations under that agreement despite the U.S. action, assiduously adhering to the restrictions imposed on it by terms that had been enshrined by a U.N. Security Council resolution, while the U.S. has engaged in what it terms a campaign of "maximum pressure" of economic sanctions that were in violation of international law and designed to compel Iran to abandon a nuclear program the international community had certified as being peaceful in nature.
Regardless of Iran's continuing to abide by the restrictions placed on it by the terms of the JCPOA, the U.S. placed pressure on Europe and the rest of the world not to purchase Iranian oil, threatening to retaliate against any country that did by imposing crippling "secondary sanctions." In turn, Iran has called the U.S. actions a form of "economic terrorism," and this month began exceeding the caps on enrichment levels and uranium stockpiles that had been set by the JCPOA. Iran rightfully noted it was permitted to do so by the terms of the JCPOA, given the withdrawal of the U.S. from that agreement and the failure of Europe to adhere to commitments regarding unimpeded trade it had made as part of the JCPOA. Iran has likewise threatened to quit the NPT if the U.S. doesn't end its sanctions.
Such an action would nullify the policy of "negative security guarantee" that shielded it from being targeted by U.S. nuclear weapons. But even if Iran remains in the NPT, the Trump administration has been making a public case -- which it has not backed up with any evidence -- that Iran is already in technical violation of the NPT.
In April, the State Department released its annual report to Congress assessing compliance with arms control agreements. The report contended that Iran's retention of a nuclear archive, a claim made by Israeli Prime Minister Benjamin Netanyahu in April 2018, raised questions about whether Iran was attempting to resume its nuclear weapons program. The report also claimed -- again, without any attribution -- that Iran was retaining undeclared nuclear material. In both cases, the report noted, Iran would be in violation of the NPT.
That these unsupported allegations of Iranian noncompliance occurred while the international community found Iran to be in full compliance with the JCPOA is troubling. That the U.S. would build a case for nuclear weapons release based upon misleading claims that were prompted by a decision by the Trump administration to withdraw from the JCPOA is doubly so. But the artificial crisis the U.S. manufactured runs the risk of becoming a real crisis. The 2018 NPR declares the first use of nuclear weapons will be considered only under "extreme circumstances." However, these circumstances are broader than in the 2010 NPR, including what it terms "significant non-nuclear strategic attacks" against "U.S., allied or partner civilian population or infrastructure" as a trigger for the use of nuclear weapons by the U.S.
This category is especially troubling given Iran's threats to retaliate against U.S. military facilities in the region surrounding the Persian Gulf, shut down the strategic Strait of Hormuz to ship traffic, cutting off more than 30% of the global oil supply, and destroy the economic infrastructure, including oil production facilities, of the Gulf Arab states, which are important U.S. allies. In the face of these threats this June, Trump tweeted that "Any attack by Iran on anything American will be met with great and overwhelming force. In some areas, overwhelming will mean obliteration."
Obliteration is another way of saying nuclear weapons would be used.
Two things emerge from this narrative. First and foremost, the Senate was wrong in believing that international law provided a basis for internal checks and balances within the U.S. military that could justify opposition to a nuclear strike against Iran's uranium enrichment facilities. Second, the Senate based its assessment of the role played by the policy enshrined in the Nuclear Posture Review on a document from 2010 that has since been superseded. By broadening the "extreme circumstances" under which the use of nuclear weapons could be justified, the 2018 NPR opened the door for President Trump to follow through with his threat of "obliteration." And the Senate let it happen.
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