Charles J. Moxley, Jr.
In arguing before the International Court of Justice on the question of the legality of the threat or use of nuclear weapons, the United States acknowledged that international law governing the conduct of warfare (law of war) applies to use of nuclear weapons, but argued that such law does not render use illegal per se (i.e. in every circumstance): "Nuclear weapons, as is true of conventional weapons, can be used in a variety of ways they can be targeted in ways that either increase or decrease resulting incidental civilian injury or collateral damage; and their use may be lawful or not depending upon whether and to what extent such use was prompted by another belligerents conduct and the nature of the conduct."
Charles J Moxley, Jr., a New York attorney and member of the Board of the Lawyers Committee on Nuclear Policy, squarely challenges the US position in his 800 page book Nuclear Weapons and International Law in the Post Cold War World. In the first major volume to examine the legality of US nuclear policy and practice in light of US military law and the 1996 International Court of Justice Advisory Opinion, Moxley argues that:
In reaching his conclusion that the use of nuclear weapons is illegal per se, Moxley gives considerable detail on the codification of the law of war in US military manuals, the ICJ judges individual perspectives in the 1996 advisory opinion, current US weapons systems and policies, risk factors inherent in the practice of deterrence, the legal significance of risk factors and the non-necessity of nuclear weapons. He does not address the question of whether the ICJ opinion renders illegal the current deployment of nuclear weapons at a time when there is not a threat to the very survival of the US or its allies, and instead focuses on the illegality of the threat or use of nuclear weapons at all times.
Moxley asserts that virtually any use of nuclear weapons, in the types of circumstances in which such weapons might actually be resorted to, would carry with it the risk of retaliation by the enemy with weapons of mass destruction and the risks of escalation resulting in effects beyond those legally permissible. He argues that such foreseeability of the risk of impermissible effects renders the use of any nuclear weapon reckless and hence unlawful even in circumstances when a relatively small number of low yield nuclear weapons are used against remote targets (the types of use defended by the US before the ICJ). Such unlawfulness is based on a mens rea (state of mind) element of recklessness and does not require intentionality.
Moxley also makes a very useful application of risk factors, probability analysis and catastrophe theory to the legality of the threat of use of nuclear weapons. He argues that a nuclear catastrophe is virtually inevitable if nuclear deterrence is maintained. While the evidence he offers to support this contention is rather light, and could be complemented, for example, by the work of Ike Jeans, Martin Hellman and Braford Lyttle (The Bulletin of Atomic Scientists, Sep/Oct 2000), he makes a sound argument that risk factors make the practice of deterrence illegal. To reach this conclusion, he considers the practice of probability analysis under criminal law in the US and other States. He cites for example the Carroll Towing case where Judge Hand used a formula P (probability of risk occurring) x L (gravity of loss should risk occur) > B (burden to prevent risk) to determine criminal negligence for actions involving risk to life or property. Moxley proposes a more rigorous formula for risk assessment of nuclear deterrence, with specific variables relating to military objectives, alternatives to nuclear weapons and the likely effects of the use of differing weapons systems.
His closing comments in the chapter on "Deterrence, the Naked and Toothless Emperor" echo those in Commander Robert Greens recent publication The Naked Nuclear Emperor (see review on page 15), and should help pave the way for an acceptance by the US and other nuclear weapon states that deterrence is not only illegal, but anachronistic and due for retirement.
Nukes Are Not ForeverLev P. Feoktistov
Introduction by Mikhail Gorbachev
IPPNW - Russia, Moscow, 1999
$10; available from LCNP
So spoke Lev Feoktistov to a session of the 2000 NPT Review Conference devoted to presentations by civil society representatives. (See www.igc.org/disarm/nptngo2k.html). What made Feoktistovs remarks notable, aside from their general depth and insight, is that for 25 years he was a leading Soviet nuclear weapons designer, ending as the deputy scientific leader of the Federal Nuclear Center in Chelyabinsk. Now, though, as a member of the Pugwash movement, he has joined the ranks of those nuclear scientists who have concluded that abolition of nuclear arms is the only real answer to the threat they pose.
Nukes Are Not Forever is a somewhat anecdotal and rambling account of Feoktistovs experiences at Soviet weapons laboratories. It is interesting for the picture it gives of how Soviet physicists worked together and saw their work. In Feoktistovs case and others as well, the impression that emerges is one of pride in and enjoyment of the physics and engineering; concern to defend the Soviet Union against US military power; and finally moral qualms that in his case resulted in his eventual devotion to the cause of nuclear disarmament (though not ending of nuclear power). For those who track the technical aspects of weapons development (and potential development), the book also is of interest.
- John Burroughs
The Naked Nuclear Emperor: Debunking Nuclear Deterrence
The fundamental rationale of nuclear weapons - deterrence - is under siege: it is implicitly criticized in the International Court of Justice Advisory Opinion, the 2000 NPT Final Document, the New Agenda resolutions, and by the call by some NATO states for the alliance to re-examine its "strategic doctrine;" it is explicitly attacked in the works of former leading military and governmental officials including Gen. Lee Butler and Paul Nitze, as well as by the "traditional" abolitionists such as Richard Falk and Jonathan Schell. Now that the Cold War is ten years dead, it is becoming harder and harder to justify the willingness to use nuclear weapons.
Robert Green brings to this debate a concise tract for deterrence detractors. The Naked Nuclear Emperor: Debunking Nuclear Deterrence deconstructs deterrence as a failure on practical, moral and legal grounds, and completes the argument by outlining the path to a nuclear weapon free world.
Describing the attachment to deterrence as "an addiction," Green writes the survival of deterrence after the end of the Cold War is based on "a self- defeating new role for nuclear weapons: countering the spread of weapons of mass destruction." What in fact has been demonstrated, most spectacularly by the nuclear tests of India and Pakistan in 1998, is that "acceptance of nuclear deterrence dogma implies endorsement of nuclear proliferation." Another reality that is regularly ignored in the name of maintaining the dogma is that a major threat comes from non-state terrorists, who would not be easily deterred and would be difficult to locate for retaliation.
These and other arguments taken together lead to Greens premise that "Nuclear deterrence directly threatens security, both of those who depend on it and those it is meant to impress. Nuclear weapons are in fact a security problem, not a solution. This is because they undermine a possessors security by provoking the most likely and dangerous threat - proliferation to undeterrable extremists."
Debunking deterrence is tightly linked to delegitimizing nuclear weapons. Shifting the general perception of nuclear weapons from a useful tool (a prerequisite for deterrence) to an illegal weapon - therefore unusable - eliminates their utility. Stigmatizing nuclear weapons, as has been done with chemical and biological weapon, "will mean that they are no longer perceived as assets. Instead, they become a security problem," Green writes. And, as he quotes Lee Butler, "Theyre not weapons at all. Theyre some species of biological time bombs whose effects transcend time and space."
The reality, Green argues, is that security must be achieved through disarmament. "With nuclear deterrence debunked, the alternatives have a flying start from the realization that any other security strategy must be safer." The logical, and one hopes the inevitable, strategy is a Nuclear Weapons Convention.
Basing the legal argument largely on the Nuremberg Charter and the 1996 ICJ Advisory Opinion, Green argues the ICJ Opinion means disarmers "take the legal high ground against the pro-nuclear lobby." One strategy for weaning pro-nuclear leaders off the doctrine is to point out that, in light of the ICJ Opinion, they are flouting the Nuremberg Charter. Often this strategy is dismissed as naive - these people see themselves as above the law, the argument goes.
However, one of Greens own initiatives supports the idea that officials do take law into account. He relates how, in 1997, he wrote to UK Prime Minister Blair and other leaders in the chain of command warning them that following orders "does not relieve [the official] from responsibility under international law, provided a moral choice was in fact possible." Green noted a Navy lawyer, before the Court issued its opinion, said an adverse ruling could be ignored because an action taken under orders would not be illegal. However, when Green sent his letter after the Opinion, Blairs office was not so ready to dismiss the legal ramifications of their actions, arguing that deterrence "is consistent with international law," including the Nuremberg principles. The government was still wrong, but this time it was careful not to dismiss the weight of international law out of hand. While this is not a breakthrough, it does show that governments can be moved by the legal argument.
Green concludes with a call to action: "Civil society must mobilize... for the final push to a Nuclear Weapons Convention ... working in close partnership with the growing caucus of courageous, like-minded governments backed by overwhelming public support."- Jim Wurst
"Force is that which makes a thing of whoever comes under its influence. When practised in its extreme, it makes a thing of man in the most literal sense, for it makes him a corpse. There is someone there, and an instant later, there is no one.... Such is the nature of force. Its power to transform men into things is dual and exerts itself from two sides: it petrifies differently, but equally, the souls of those who suffer it and those who wield it."Simone Weil, "LIliade ou le Poéme de la Force" from Les Cahiers du Sud, 1940 (our translation)