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Emory International Law Review

Jeffrey Biller

Abstract

The use of nuclear weapons presents an unparalleled risk of escalation, a reality that has become increasingly pressing due to recent geopolitical developments, particularly Russia’s revised nuclear doctrine and its ongoing conflict with Ukraine. While the legal frameworks governing armed conflict, particularly International Humanitarian Law (IHL), do not traditionally require an analysis of escalation risk before an attack, this article argues that the extreme and immediate consequences of nuclear escalation necessitate its inclusion within the precautionary measures framework.

This article first examines the concept of nuclear escalation, identifying both intended and unintended risks associated with nuclear strikes. While nuclear deterrence strategies have historically relied on the threat of catastrophic retaliation to prevent conflict, the unpredictable nature of modern conflicts, the erosion of diplomatic channels, and the strategic ambiguity surrounding nuclear doctrine heighten the likelihood of miscalculation. Given these dynamics, the use of even a single tactical nuclear weapon risks triggering a chain reaction of retaliatory strikes, leading to uncontrolled escalation.

This article then explores existing legal requirements under IHL, focusing on the principles of proportionality and precautions in attack. The principle of proportionality mandates that the expected incidental harm to civilians must not be excessive in relation to the anticipated military advantage. However, this analysis is often constrained by uncertainties in predicting both the effectiveness of a nuclear strike and its collateral consequences. Additionally, the obligation to take feasible precautions in attack requires commanders to minimize civilian harm, but applying this principle to nuclear weapons—given their indiscriminate and long-lasting effects—raises significant challenges.

Building on these legal principles, this article argues that the risk of nuclear escalation should be integrated into the precautionary measures analysis. While escalation is not traditionally considered in legal targeting decisions for conventional weapons, the unique nature of nuclear weapons—where a single use could immediately trigger a large-scale conflict—demands a different approach. This article contends that escalation is neither a remote nor hypothetical consequence in nuclear conflict, but a foreseeable and likely outcome that should be factored into legal assessments.

To support this argument, this article examines historical cases, wargaming exercises, and existing risk analysis frameworks to demonstrate that nuclear escalation is a near certainty under specific conditions. It further discusses how States can incorporate escalation risk into decision-making by ensuring that military legal advisors play a critical role in evaluating nuclear strikes. Since military legal teams are trained to assess proportionality and precautionary measures, they can serve as a necessary safeguard against decisions that might otherwise fail to account for the risk of uncontrolled nuclear conflict.

Ultimately, this article calls for a shift in legal and policy frameworks to recognize nuclear escalation as a critical factor in precautionary measures. It argues that, as a matter of both law and policy, States should integrate escalation risk into their IHL compliance mechanisms to prevent catastrophic global consequences. By doing so, decision-makers can contribute to a more robust and responsible approach to nuclear strategy, ensuring that the principles of humanitarian law are upheld even in the face of nuclear threats.

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