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The following commentary was written by Paul W. Lovinger of the War and Law League (WALL), an anti-war advocacy organization, based in San Francisco, emphasizing constitutional and international law.

The article may be viewed on the War and Law League web site, www.warandlaw.org (along with an illustrated statement by the International Committee of the Red Cross), by clicking on the following: WALL

Our two-faced policy on nuclear weapons:

Obama says A-bombs are bad and must go
—while the U.S. military readies their use

A WALL commentary

The Obama administration says that it seeks to abolish atomic weapons and that they must never be used again. Yet the U.S. military’s plans still call for possible use of the bombs.

In principle, the administration accepts that international humanitarian law, also known as the law of armed conflict, applies to nuclear bombs.

The most basic principle of such law — acknowledged in Army lawbooks — is that parties to a conflict must always distinguish between the civilian population and combatant forces. Accordingly the parties may direct force solely against the latter.

Of course nukes and their effects do not so distinguish, thus logically any use of them must be unlawful. The U.S. government has yet to put two and two together, but it has at least tempered its affinity for the bombs.

U.S. urges abolition of nuclear bombs

In 2009 the United Nations Security Council, presided over by President Obama, adopted a resolution proposed by him that reaffirmed the goal of “a world without nuclear weapons.” It called for reductions in existing weapons stockpiles; control of fissile materials and other nonproliferation measures; and no more atomic tests.

Then at a five-year review conference of parties to the Nuclear Non-Proliferation Treaty, held at the UN in 2010, the U.S. was active in negotiating a provision in the Final Document that invoked international humanitarian law for the first time in the treaty’s then 40-year history. Expressing the conference’s “deep concern at the catastrophic humanitarian consequences of any use of nuclear weapons,” it affirmed a need for “all states at all times to comply with applicable international law including international humanitarian law.”

The 2010 Nuclear Posture Review, expressing Obama’s policy toward the weapons, renounced the development of any new types and pledged no nuclear attack against nations that lacked nuclear weapons and observed the Nuclear Non-Proliferation Treaty. It reversed the policies of George W. Bush. He had proposed the development of atomic bunker-busters, and his 2002 Nuclear Posture Review directed the Pentagon to draft contingency plans to nuke at least seven countries, including Russia and China.

Last April, Susan Rice, American ambassador to the UN, said, “The United States believes that it has a moral responsibility to lead and act now, in cooperation with the members of this council and the international community, to seek the peace and security of a world without nuclear weapons.” Addressing a U.S.-chaired meeting of the Security Council dealing with nuclear non-proliferation and disarmament, she emphasized too “our collective interest in ensuring that the record of more than six decades of nuclear non-use continues forever.”

Those principles harmonize with the 1996 advisory opinion of the International Court of Justice that the use of nuclear weapons “would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law.” The opinion added that nations were obligated to negotiate the abolition of the weapons. In the Nuclear Non-Proliferation Treaty, in effect since 1970, the U.S. and other parties had agreed to negotiate nuclear disarmament.

The court found the weapons to be uncontrollable, endangering the whole human race. Atomic fission or fusion released “not only immense quantities of heat and energy, but also powerful and prolonged radiation…. The destructive power of nuclear weapons cannot be contained in either space or time…. They have the potential to destroy all civilization and the entire ecosystem of the planet.”

That was not a pro-nuclear ruling, though some claim it was. The U.S. in 1995 had argued to the court that use of the bombs could comply with humanitarian law in exceptional instances. The court declined to address those instances, thus unwittingly setting up some topsy-turvy interpretations.

U.S. would consider using the bombs

Agreeing with humanitarian law in theory, the U.S. ignores it in practice when it comes to nuclear weapons. The last Nuclear Posture Review showed no concern for it, instead admitting that the administration would “consider the use of nuclear weapons in extreme circumstances to defend the vital interests of the United States or its allies and partners.” (Isn’t every war an extreme circumstance? As for the “vital interests” of the U.S., allies, or partners, wouldn’t that cover just about every casus belli?)

The president’s budget request for nuclear weapons activity for fiscal year 2013 (starting Oct. 1, 2012) is $7.6 billion — 5 percent above the amount in the current, fiscal 2012 budget and nearly 10 percent above the previous year’s total. Obama promised Senate Republicans more and more spending to win their votes in December 2010 for the new Strategic Arms Reduction Treaty with Russia. Warheads become fewer, but his budget seeks modifications and upgrades to make them more destructive and reliable. It also allows construction of facilities, at Kansas City and Oak Ridge, TN, that expand the capacity to produce warheads. Obama’s $2.5 billion budget request for nuclear nonproliferation slashes funds for international programs to safeguard enriched uranium and stop smuggling. How all that gets us closer to “a world without nuclear weapons” is hard to imagine.

With one big exception, the U.S. military takes the law of armed conflict seriously, according to Gary Solis of George Washington University Law School, former head of West Point’s program on that law. At the spring meeting of the International Law Section of the American Bar Association (ABA) in New York on April 20, 2012, he said:

There is one law-of-war topic that is not taught, that is not the subject of Department of Defense directives and orders, that is overlooked by military education … and that is nuclear weapons, their lawful, and more significantly, their potentially unlawful use….

As to Field Manual 27-10, The Law of Land Warfare, taught by DOD order to all Armed Service members, the current edition has not a single mention of nuclear weapons…. The Army regulation requiring legal review of all weapons and weapons systems specifically excludes nuclear weapons….The educational programs at West Point and Annapolis have no course offerings and no individual lessons on the law of nuclear weapon….

There are no orders or directives to be violated or contravened; there is no basis for assessing legal culpability of commanders.

The Obama administration has been developing new presidential guidance for nuclear forces’ missions, targeting, and deployment. The Lawyers Committee on Nuclear Policy, of New York, wrote to the administration to urge that international humanitarian law be considered in the process. A reply came back from James Miller, undersecretary of defense, refusing to comment, because “any guidance regarding U.S. nuclear force planning and deployment is highly classified….”

The ultimate disdain for the law is seen in the policy of deterrence. The cold war ended over two decades ago, yet the U.S. and Russia still have thousands of nuclear bombs aimed at each other, continuously ready for immediate launch. Just why, the government has yet to explain. If the use of the bombs constitutes a crime against humanity — as religious leaders of various faiths have long declared — the deterrence policy proclaims to the world our nation’s willingness to commit that crime. The International Court of Justice said in its 1996 opinion that it was unlawful to threaten the use of a weapon if its use would not meet the requirement of humanitarian law.

Moreover, neither Obama nor any other president has ever renounced the supposed presidential right to dictate the starting of an atomic war. It is not an option allowed by the Constitution, which reserves to Congress alone the authority to decide to wage any war. Moreover, the massacring of populations that the deterrence policy contemplates contravenes U.S. treaties as well as international humanitarian law. The policy in effect gives a single man the absolute power of life and death over everyone. In our constitutional republic, should any weapon as monstrous as an atomic or hydrogen bomb be under the sole control of one person?

A-forces on high alert still endanger us all

Most of today’s atomic bombs would each prove more than ten times as destructive as the type that President Truman ordered dropped on Hiroshima and Nagasaki, killing hundreds of thousands of civilians. Some bombs deployed today are each hundreds of times as powerful as either of the two bombs used in 1945.

“Nuclear weapons threaten human existence,” and the peril “is not over with the end of the cold war,” said Charles J. Moxley, Jr., an adjunct professor at Fordham University School of Law, and author of International Law and Nuclear Weapons in the Post Cold War World (Austin & Winfield, 2000) and many pertinent law journal pieces.

At the meeting of the ABA’s International Law Section, he pointed out that “there is still a high level of alert of both sides, the United States and Russia, and of other countries as well … so the existential risk of something going astray by intention or lack of attention is there.”

He placed the total number of nuclear warheads in the world at 22,000, about 95 percent of them possessed by the two countries.

Moxley said the U.S. accepted the law of armed conflict and its application to nuclear weapons in principle but ignored the law “in our training … in our [nuclear] weapons possession and development process” and most importantly in “the policy of deterrence.” He asked rhetorically, “Is it not evident that our policy of deterrence is unlawful if the actual use would be unlawful?”

In cold-war days the policy became known also as mutually assured destruction, or by its apt acronym of MAD. It irrationally assumed that the Soviets wanted to attack the United States, or vice versa, but that each side would rationally refrain from attacking, knowing that to do so meant its own doom. No one figured out how to tell for sure if an attack was taking place and, if it was, who was responsible. America’s early-warning system interpreted a flock of geese and a meteor shower as incoming Russian missiles, as Dr. Helen Caldicott wrote. Within eighteen months, she counted 3,703 false alarms, 152 of them appearing to represent a potential attack. One mistake nearly brought the world to destruction:

In November 1979, someone plugged a war-games tape into the fail-safe computer, and the machine made a mistake and decided that Russia had really launched a nuclear attack. The whole Western world was put on nuclear alert for six minutes; three U.S. squadrons of planes were armed with nuclear weapons, scrambled, ready to take off; and at the seventh minute the President [Carter] was to be officially notified, but they could not find him. At that time the mistake was realized, we were fourteen minutes from the moment when the button could have been pressed — and from annihilation.
A nearly catastrophic mistake on the Russian side was described by Jonathan Granoff, president of the Global Security Institute, at the recent ABA section meeting: “In 1995, there was a weather satellite shot off the coast of Norway…. Boris Yeltsin was told that a missile was heading for Russia that could be a Trident launch. He had less than ten minutes to decide if the information was accurate. He believed that Bill Clinton did not want to end the world, but it looked like it could be the first volley…. So we came very close.”

Apart from the U.S. and Russia, Granoff noted that India and Pakistan had enough nuclear weapons to make the world’s climate uninhabitable by civilization. “Today we are subject to a potential computer hacker, creating the appearance of an attack in that region that could cause a nuclear exchange…. India and Pakistan have only 300 seconds in which to evaluate a perceived attack.”

The Nuclear Non-Proliferation Treaty recognizes five countries as nuclear weapons states. They are the five permanent members of the United Nations Security Council. Following are estimates of their number of warheads as of May 2012, according to the Arms Control Association The Russian and U.S. totals do not include thousands of retired warheads that are due for dismantlement.

Russia — about 5,500 total warheads (ca. 2,000 in storage).
United States — 5,113 total warheads (ca. 2,700 in storage).
France — fewer than 300 operational warheads.
China — about 240 total warheads.
United Kingdom — up to 225 total warheads.
India, Pakistan, Israel, and North Korea never joined the treaty. Israel does not admit or deny having nuclear weapons. These estimates of those countries’ arsenals are based on the amount of fissile, or fissionable, material (highly enriched uranium or plutonium) that they are believed to have produced.
India — up to 100 warheads.
Pakistan — between 90 and 110 warheads.
Israel — between 75 and 200 warheads.
North Korea — roughly 10 warheads.
No other nations are known to possess nuclear weapons. Belarus, Kazakhstan, and Ukraine inherited them upon the Soviet Union’s collapse in 1991 but returned them to Russia and joined the treaty. South Africa developed a few such bombs but dismantled them and also joined the treaty.

Law of war said to forbid use of nukes

Manuals of the U.S. armed services recognize the rules of armed conflict, including these: Distinction — Parties to a conflict must distinguish between noncombatants and military targets, directing their operations only against the latter. Proportionality — Effects on noncombatants must not be disproportionate to the military advantage anticipated. Necessity — A party shall use no more force than necessary to achieve its military objective. Unnecessary suffering shall not be inflicted.

Moxley disputed that any of those standards could be met by “weapons whose effects are unlimited and unlimitable.” Granoff said, “You cannot bring nuclear weapons into compliance with the standards of IHL” (international humanitarian law). And Libran Cabactulan, ambassador to the United Nations, told the same meeting, “The position of my country, the Philippines, is that nuclear weapons are illegal under international law, particularly international humanitarian law.”

He explained: “… Nuclear weapons are inherently indiscriminate, far beyond proportionality, cause unimaginable unnecessary suffering, and are inescapably and grievously harmful to the environment…. The notion of control is meaningless and the idea of military necessity is absurd.” The Philippines has advocated the criminalization of any nuclear use or threat.

As president of the 2010 Review Conference of the Nuclear Non-Proliferation Treaty, Cabactulan was instrumental in winning adoption of the humanitarian law provision. It ties in with the treaty, whose objective was to eliminate nuclear weapons “precisely because their destructive force is inherently inhuman,” he said at the recent meeting.

The treaty’s preamble begins by “Considering the devastation that would be visited upon all mankind by a nuclear war.” It declares the nations’ intention “to undertake effective measures in the direction of nuclear disarmament.” These include a treaty for “the cessation of the manufacture of nuclear weapons, the liquidation of all their existing stockpiles, and the elimination from national arsenals of nuclear weapons and the means of their delivery….”

Granoff said advocates of a lawful nuclear policy simply urged fulfillment of existing commitments that nuclear weapons states had made under the treaty. They agreed in the 2,000 Review Conference to regard their cuts in nuclear arsenals as irreversible, strive to reduce arsenals unilaterally, increase transparency, remove weapons from high alert, lessen the bombs’ role in security policies, and “accomplish the total elimination of their nuclear arsenals leading to nuclear disarmament, to which all states parties are committed under Article VI” of the treaty. “The nuclear weapons states thus affirmed that the duty of elimination is a legal commitment,” Granoff said. He urged lobbying by lawyers to see it through.

Among other forward developments have been initiatives by Ban Ki-moon, the UN secretary general, for negotiating nuclear disarmament; a proposal by Max Kampelman, best known as President Reagan’s arms negotiator, for the abolition and outlawing of nuclear weapons; and the position of the Geneva-based International Committee of the Red Cross that the weapons are incompatible with humanitarian law and that preventing their use requires fulfillment of obligations to negotiate their total elimination through a legally binding treaty.  (See WALL for the text of a speech by the committee's president, along with photos of the atomic bombing of Japan.)


Among Sources:

News releases, reports, and conversations: Alliance for Nuclear Accountability, Senate Committee on Appropriations, Tri-Valley Communities Against Radioactive Environments, etc., March to July, 2012.

“Nuclear Weapons: Who Has What at a Glance,” Arms Control Association, ArmsControl.org, May 2012.

“Nuclear Weapons and International Humanitarian Law,” Spring Meeting, Section of International Law, American Bar Association, organized by Lawyers Committee on Nuclear Policy and Global Security Institute, summary report and transcript, April 20, 2012.

“International humanitarian law and nuclear weapons: irreconcilable differences” by Dean Granoff and Jonathan Granoff, Bulletin of the Atomic Scientists, Dec. 15, 2011.

“Historic Summit of Security Council Pledges Support for Progress on Stalled Efforts to End Nuclear Weapons Proliferation: Resolution 1887 (2009) Adopted with 14 Heads of State, Government Present, ” Security Council, Department of Public Information, Sept. 24, 2009.

Dr. Helen Caldicott, Missile Envy: The Arms Race and Nuclear War (William Morrow and Co., 1984).

“Treaty on the Non-Proliferation of Nuclear Weapons,” signed in Washington, London, and Moscow, July 1, 1968, approved by Senate March 13, 1969, in force March 5, 1970.

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