DOD Law of War Manual, June 2015 (updated December 2016)

Date

December 2016

Document

Description

The official US Department of Defense Law of War Manual was created by the Office of General Counsel at the DOD and originally issued in June 2015. An updated Law of War Manual (as seen here) was reissued in December 2016.

Commentary

This is an immensely large and complex body of legal discussion. Nuclear weapons are mentioned throughout, largely with respects to questions of proportionality. There is one section specifically dedicated to nuclear weapons:

6.18 NUCLEAR WEAPONS

There is no general prohibition in treaty or customary international law on the use of nuclear weapons. The United States has not accepted a treaty rule that prohibits the use of nuclear weapons per se, and thus nuclear weapons are lawful weapons for the United States.

The law of war governs the use of nuclear weapons, just as it governs the use of conventional weapons. For example, nuclear weapons must be directed against military objectives. In addition, attacks using nuclear weapons must not be conducted when the expected incidental harm to civilians is excessive compared to the military advantage expected to be gained.

6.18.1 U.S. Policy on the Use of Nuclear Weapons. The United States has developed national policy on the use of nuclear weapons. For example, the United States has stated that it would only consider the use of nuclear weapons in extreme circumstances to defend the vital interests of the United States or its allies and partners. In addition, the United States has stated that it will not use or threaten to use nuclear weapons against non-nuclear weapons States that are party to the Nuclear Non-Proliferation Treaty and in compliance with their nuclear nonproliferation obligations.

6.18.2 Nuclear Weapons and Arms Control Obligations. Nuclear weapons are regulated by a number of arms control agreements restricting their development, testing, production, proliferation, deployment, use, and, with respect to specific types, possession. Some of these agreements may not apply in times of war. Guidance on nuclear arms control agreements is beyond the scope of this manual.

6.18.3 AP I Provisions and Nuclear Weapons. Parties to AP I have expressed the understanding that the rules relating the use of weapons introduced by AP I were intended to apply exclusively to conventional weapons. Thus, Parties to AP I have understood AP I provisions not to regulate or prohibit the use of nuclear weapons. Although the United States is not a Party to AP I, the United States participated in the diplomatic conference that negotiated AP I based upon this understanding.

6.18.4 Authority to Launch Nuclear Weapons. The authority to launch nuclear weapons generally is restricted to the highest levels of government. The domestic law and procedures concerning nuclear weapons employment are beyond the scope of this manual.

In short, the law of war is not interpreted by the US Department of Defense as prohibiting the use of nuclear weapons, although it does structure the discussion about possible allowable use.

Citation

Office of General Counsel, U.S. Department of Defense, “Department of Defense Law of War Manual,” (June 2015, updated December 2016).

Provenance

Topics

Document entry started by Alex Wellerstein on May 12, 2018. Entry last updated by Mikael Kelly on October 13, 2018.