Same Problems of the Law of Bar III Limited Nuclear Warfare

• Author: William V. O'Brien
• Pages: 01

1. INTRODUCTION

For some yeam now the United States Army has been transforming itaelf into what it calls a "pentomic" army. Rejecting the nations that the atomic age has out-maded land armies and that all-out nuclear war mu8t inevitably rank as our primary defense strategy, the Army has sought to develop fighting forces capable of operating under conditions of limited warfare, both nuclear and conventional. Thus, the Army has taken the lead in developing Some of the limited war concepts which have been attracting attention in the fast-developing discipline of politico-military studies and in the emerging field of ethical-military studies.'

Students of the law of war, particularly those who are interested in investigating the possibilities for a realistic jus I?L bellurn, have naturally been following these developments with great interest. The key to lepal limitations of warfare would appear to lie in the concept of rational, controlled warfare. All-out nuclear war, particularly since the appearance of the H-bomb, does not seem to be either a rational or a controlled means of war. Yet for some years it appeared that this kind of warfare >vas virtually the only kind which we could expect in a major conflict. The reaction that set in against the dominance of majsire retaliation theories has been profound, as it has come from manv source- -The author gratefvlly acknoivledges the va!uable asr~htance ~n the peparatm of this paper of Captain Steren T Clark, XPC, U. s. Army. Captam Clark 1% preiently assigned to graduate studleg ~n Internstional Law and Relations at Gearpetoim Unwernty. The ~ p m o n r and C ~ C I U E ~ ~ J presented

herein are those of the author and da not neces38?11> represent the views of The Jude Advocate General's School nor an%. other eaveinmental aeencv

. . I . *' Chakan, Institute of World Polltr and Professor af Internatma1 L

1960).

from intellectuale, moralists, and from professional military men. As a result of this reaction there has been a continuing debate over the feasibility of various alternatives to all-out nuclear war, ranging from graduated deterrent through limited nuclear war to limited conventional war. Recently the prevailing trend has been towards stabilization of deterrents, arms control, and limited war with each being an indispensible part of a system of con. trolled warfare. Thi8 study will not concern itself with strategic use of nuclear weapons. Xaturally, the presence of those weapons and their deterrent effect must be kept in mind at all times when one is concidering limited war, whether conventional or nuclear.'

It is fair to say that no-one feels particularly Secure in his own favorite defense philosophy. There are serious weaknesaes and flaws in all of them. But, caught in the suppoaed "fearful choice" between unlimited nuclear war and submission to Communist imperialism, reflective men have been driven to the task of finding alternative defense policies limited by morality and common sense yet sufficient to our defense needs. It is not putting the matter too strongly to say with Father John Courtney 31ur-ray. S. J. that the need for an efficacious limited war concept i s a "moral imperative."^ While the international lawyer may re-tain Some doubts as to the validity of these alternative defense theories he can hardly avoid the feeling that his hopes for a revival of the law of war hinge Yery largely on their LUCC~SS 01- failure in practice. With the development of the pentomic cancept in the Army important steps have been taken to transfer the focus of discussion from pure theory to practice. Theories of limited war are translated into new organizations, strategies, tactics, logistics and, as will be shown, new problems as well as new hapea for a revired law of ~ . a r . ~

11. THE LIMITED WARFARE CONCEPTThe pentomic concept, reduced to its essentials, merely reiterates classical principles in the context of strikingly new technical

LIMITED SUCLEAR WARFARE

capabilities. These principles are summed up in the vxds: fire-power, movement, and communications. "The development of atomic power has changed forever many of the techniques of war. In the field of firepower alone since World War 11, changes have been dramatic and far-reaching."s Advances in aerial, ground and water transportation, as well as in communications techniques, promise rapid and controlled movement. Thia is fortunate since nuclear firepower imposes an extraordinary need for mobility and disperaian.B

The organizational and tactical result of the pentomic concept is the new basic fighting unit, the battle group. Pentomic warfare is sumed up in this official description of the battle group in action:

The battle POUP is organized to fight under fiuid conditions. Thli lean, powerful fighting machine 1% constantly moving, graupiny, and BghtIt should be noted that the structural characteristic8 of pentamic warfare are presently under scrutiny and will soon be altered. The principal change is likely to be the replacement of the pentomic division and battle group concepts with B more flexible division, which mill resemble the present armored division with the three combat command headquarters. It is contemplated that brigades will be formed, these to vary in Size according to the mission of the formation. The imDortant mint

. , , .'

S. Dep't of Army, Pamphlet KO,355-200-7, .4 Sharper Sword and B

Stiorger Shield 4 (1969).

'/bid: Fast Mo iiig! Hard Hittiiig,', Army Reservist, Auguat 1957, p. 8:

Khite, An Infe7viizi wzth Geni?ol &,in, Arm) Combat Forces Journal, IIlareh 1% p. 20: Reinhardi B Kmer, Atomic Weapons ~n Land Combat (1953).

"6. Scale of Atomic Warfare

"a Atamle warfare may Involve wide ranger of conditions dependent upon the number and yields of xeapanr employed. The empiqmmt of larpe numbers of weapons of all yields presents me set of candltmnr: where-as, rmsil-yield ueaponi employed at infrequent intervals prelentr another set of eonditiani.

"b. Atomic warfare tandifioni are assumed to be the normal battlefield environment for armored drvison operstionl. Operalm~ on the ammle battlefield. BI contrasted iwth apersrioni ~n the past, w1i be characterized hg fewer troops within the forward portion3 a i the combat zone in relation to the land area mvolved. This w1i result in greater fluidity af operations, lei3 clearly defined lines of contact, and the necessity for increased reliance on the initiative and ability of subordinate commandern to reaet to unfaresee-able situation.. There conditions sill be ~n dmct relatmn ta the number of atomic weapons mailable, the eapabhty for them delirery, and their pattern of employment, n t h respect to both sidor." U S Dep't of Army, Field Ysnval h a 17-100, The Armored Dluinan ard Combat Command 4 11918)

See Stewart. 1ntrioetian of Firepoiter, Mobil~la. and Drsii~mon, !m~larp Review. March. 1960. PP 26-33

U S. Dep't of Army. Pamphlet So. 356-200-7, op. L L I . mp'a note 5, at 5 *oo Lllm 3

1. K

'U.

MILITARY LAW- REVIEW

is, however, that this reorganization nil1 not alter the operational characteristics of the so-called pentomic warfare. Indeed, with the adoption of an armored organization, infantry tactics will probably tend increasingly to resemble armored tactics.8

Sow certainly thia concept opena up possibilities far B kind of warfare nhich would be eminently more desirable than the hydrogen slug-fest which we all dread. Whether it will work, whether it will be enough. we do not know But to the extent that pentornic warfare does prove itself, the prospects imprare for penetration into the anarchic areas of modern total war by the lawyer, the moralist, and the professional military exponent of rational warfare. It is the object of this study, therefore, to indicate some of the implications of pentornic operations for the law of war, both as it stands today and as it may develop in the future.

111. SOME PROBLEXS OF THE LAW OF WAR IN LIIIITED NUCLEAR OPERATIOSS

Of the many questions relevant to the laws of war raised by analyais of pentornic operations, two braad areas appear to be particularly intereating and will be surveyed briefly here:

(1) I'se of tactical nuclear wveapana.

(2) Fulfillment of the requirement8 of the humanitarian law of war under conditione of pentomic warfare agaimt a totalitarian aggressor.

Use of Tactical Xuclear Weapons-FM 27-10 states that: The use ai explanve 'afam~e weaponr; whether by air, ea, or land forcer, cannot ai auch be regarded ad violative of international law in the abrenee of any euitomary rule of mternatianal law YT international eonvention reitnetmg their employment.'

This statement has remained valid despite all of the agitation for the ''outlawry'' af nuclear weapons of recent years. It i3 supported by the views of mort authorities, although, admittedly, the authorities have been very reluctant to face the question

'98 Army S a w .Aar Force Journal 733. 804 (1961)

' U. E. Dep't of .Army. Field Manusl So 27-10, The Lsv; of Land Warfare, parr 35 (1956).

4 *GO llS'B

LIMITED XCCLEAR WARFARE

~quarely.'~

Indeed, even the rules purporting to regulate the use of gas are not beyond question, as has been shown, and the application by analogy of such rules to the revolutionary new nuclear means is as dubious in the realm of legal logic as it is in common sense."

Thi3 does not mean, however, that in the absence of a rule prohibiting the use of nuclear weaponz, belligerents are free to utilize nuclear means without restriction. The principle of legitimate military neceasity, the basic principle of the lalv af war as well as the basis for the American concept of permissible riolenee, limits the use of nuclear weapons--as it does all means of warfare.12

Xost studies of military necessity have emphasized the point that the legitimate, legally valid version of the concept requires that military exigencies be subordinated to the rules af the pasitire law

.'For a detailed ansly~ii and a review of the sutharitier. eee...