by Francis A. Boyle

before the American Society of International Law Convention
Washington D.C.
April 23, 1988

@Copyright 1988 Francis A Boyle. All rights reserved.

The human race stands on the verge of self-extinction as a species, and with it will die most if not all forms of intelligent life on the planet Earth. In the hope of preventing a nuclear Armageddon, the lawyers of the world must come together to proclaim certain fundamental principles concerning the requirements of international law with respect to nuclear weapons. It is our hope that the following analysis will serve to define in legal terms the stark dilemma of nuclear extinction that confronts the human race today. We must also seek to establish an agenda for our fellow lawyers around the world to pursue by applying their unique training, skills, and expertise in a productive and meaningful way toward the progressive yet complete elimination of nuclear weapons from the face of the earth. Realistically speaking, we do not expect this to happen in the immediate future. Nevertheless, as lawyers we owe a duty to our fellow men and women around the world to struggle toward this goal with all the powers of our profession.

Hiroshima and Nagasaki

Any attempt to dispel the ideology of nuclearism and its attendant myth propounding the legality of nuclear weapons must directly come to grips with the fact that the nuclear age was conceived in the original sins of Hiroshima and Nagasaki on August 6 and 9, 1945. The atomic bombings of Hiroshima and Nagasaki constituted crimes against humanity and war crimes as defined by the Nuremberg Charter of August 8, 1945, and violated several basic provisions of the Regulations annexed to Hague Convention No. IV Respecting the Laws and Customs of War on Land (1907), the rules of customary international law set forth in the Draft Hague Rules of Air Warfare (1923), and the United States War Department Field Manual 27-10, Rules of Land Warfare (1940). According to this Field Manual and the principles of the Nuremberg Charter, all civilian government officials and military officers who ordered or knowingly participated in the atomic bombings of Hiroshima and Nagasaki could have been (and still can be) lawfully punished as war criminals.

Hence, the use of nuclear weapons in combat was and still is absolutely prohibited under all circumstances by both conventional and customary international law. Under the Nuremberg Principles, soldiers would be obliged to disobey egregiously illegal orders with respect to launching and waging a nuclear war. Furthermore, all civilian government officials and military officers who might nevertheless launch or wage a nuclear war would be personally responsible for the commission of international crimes. All such individuals could be quite legitimately and most severely punished as war criminals, up to and including the position of the death penalty, without limitation of time and without any protection against double jeopardy.

The Criminality of Nuclear Weapons

Today, article 2(4) of the United Nations Charter of 1945 prohibits both the threat and the use of force except in cases of legitimate self-defense as recognized by article 51 thereof. But although the requirement of legitimate self-defense is a necessary precondition for the legality of any threat or use of force, it is certainly not sufficient. For the legality of any threat or use of force must also take into account the customary and conventional international laws of humanitarian armed conflict.

Thereunder, the threat to use nuclear weapons (i.e., nuclear deterrence/terrorism) constitutes ongoing international criminal activity; Namely, planning, preparation, conspiracy and solicitation to commit crimes against peace, crimes against humanity, as well as grave breaches of the Four Geneva Conventions of 1949, their Additional Protocol One of 1977, the Hague Regulations of 1907, and the International Convention on the Prevention and Punishment of the Crime of Genocide of 1948, inter alia. These are the so-called inchoate crimes that under the Nuremberg Principles constitute international crimes in their own right. The conclusion is inexorable, therefore, that the possession, design, testing, development, manufacture, deployment, and the threat to use nuclear weapons together with all their essential accouterments are criminal under well-recognized principles of international law.

World Opinio Juris

Nuclear weapons establishments as well as the entire system of nuclear deterrence/terrorism currently practiced by today’s nuclear weapon states are criminal – not simply illegal, not simply immoral, but criminal under well-recognized principles of international law. This simple idea of the criminality of nuclear weapons can be utilized to pierce through the ideology of nuclearism to which many citizens in the nuclear weapons states have succumbed. It is with this simple idea of the criminality of nuclear weapons that such people can proceed to comprehend the inherent illegitimacy and fundamental lawlessness of the policies that their governments pursue in their names with respect to the further development of nuclear weapons systems.

The idea of the criminality of nuclear weapons is quite simple. And yet simple ideas are oftentimes the most powerful. For example, at one point in historical time, people saw no problem with the institution of slavery. But as a result of the Abolitionist Movement in England and the United States, the entire international community eventually came around to the point of view that slavery and the slave trade were immoral, illegal, and criminal and therefore must be abolished and repressed, which they were and still are today. The same type of moral and perceptual transformation must occur now with respect to nuclear weapons in those states that possess them.

In all fairness, however, I should point out that there are tens of thousands of people in the United States of America who truly believe that nuclear weapons are criminal under well-recognized principles of international law that have been fully subscribed to by the United States government and incorporated into United States domestic law. That number is increasing every day. Furthermore, there are hundreds of thousands of people in Europe who believe that nuclear weapons systems are criminal, and that number is increasing every day. Finally, there are tens of millions of people around the world who believe that nuclear weapons systems are criminal. It therefore becomes necessary to further propagate the idea of the criminality of nuclear weapons in order to increase the number of people who hold that opinion here in the United States as well as in the other nuclear weapons states for the purpose of compelling them to consider developing constructive strategies for the abolition of nuclear weapons from the face of the earth.

The Criminal Conspiracy of Nuclear Deterrence/Terrorism

Humankind must abolish nuclear weapons before nuclear weapons abolish humankind. Nonetheless, a small number of governments in the world community continue to maintain nuclear weapons systems despite the rules of international criminal law to the contrary. This has led some international lawyers to argue quite tautologically that since there exist a few nuclear weapons states in the world community, therefore nuclear weapons must somehow not be criminal because otherwise these few states would not possess nuclear weapons systems. In other words, to use lawyers’ parlance, this minority state practice of nuclear deterrence/terrorism by the great powers somehow negates the existence of a world opinio juris (i.e. sense of legal obligation) as to the criminality of nuclear weapons.

There is a very simple response to that specious argument: Since when has a small gang of criminals – in this case, the nuclear weapons states – been able to determine what is legal or illegal for the rest of the community by means of their own criminal behavior? By what right do these nuclear weapons states have to argue that by means of their own criminal behavior they have ipso facto made criminal acts legitimate? No civilized nation state would permit a small gang of criminal conspirators to pervert its domestic legal order in this manner. Moreover, both the Nuremberg Tribunal and the Tokyo Tribunal made it quite clear that a conspiratorial band of criminal states likewise have no right to opt out of the international legal order by means of invoking their own criminal behavior as the least common denominator of international deportment.

Here in the United States, there are several ramifications that follow ineluctably from the conspiratorial doctrine and practice known as nuclear deterrence/terrorism. First, criminality is said to be legitimacy. When nuclear weapons were first developed and used, there was absolutely no consideration given to the rule of law. Thus, nuclear weapons represent the absolute negation of a rule of law both at home and abroad. The very existence of nuclear weapons requires that the rule of law be subverted both at home and abroad.

Furthermore, nuclear weapons are anti-democratic. There has never been any form of meaningful democratic accountability applied to the U.S. nuclear weapons establishment. The American people as individuals or as a whole have never had any significant input into the process of developing nuclear weapons systems except to the extent that Congress has voted blank checks. The existence of nuclear weapons systems and their requisite degrees of super-secrecy require that our system of government be stealthily anti-democratic.

Finally, the same is true for the Constitution. Constitutional protections became meaingless when nuclear weapons were integrated into the U.S. foreign affairs and defense establishment. Indeed, the U.S. Constitution has become a farce and a façade in the name of national security as a direct result of nuclear weapons.

The Irrationality of Irrationality

Nuclear deterrence/terrorism as currently practiced by today’s nuclear weapons states – this small gang of international criminal conspirators – cannot succeed over the long run (which it must) because it is premised upon assumptions and practices that are immoral, illegal, unconstitutional, criminal, and irrational in the estimation of the respective public opinions in the various nuclear weapons states as well as around the world. Unless it is destroyed, nuclear deterrence/terrorism will ultimately fail and destroy all of humankind because of its own inherent contradictions.

In particular, the assumptions, policies and practices underlying the U.S. nuclear weapons establishment are irrational and insane from any meaningful perspective. Nevertheless, this conspiratorial doctrine of nuclear deterrence/terrorism has required that what is inherently irrational and insane somehow be made to appear to be completely rational and sane. America has quite simply had to invert and pervert its entire system of democratic values, legal ethos and constitutional practices in order to account for and accommodate the existence of nuclear weapons.

For example, a good deal of the U.S. nuclear weapons establishment and deterrence/terrorist practices are premised upon the Harvard political scientist Thomas Schelling’s theory known as the “rationality of irrationality” that was expounded in his classic book The Strategy of Conflict (1960). According to this pernicious doctrine, in theory it could sometimes prove to be a rational strategy for a government decision-maker to pretend to be completely irrational in his dealings with other states in order to get his own way. Adolph Hitler was a paradigmatic example of this phenomenon during the 1930s. The outbreak of the Second World War in 1939, however, demonstrated the limitations of this theory.

Applying Schelling’s concept to nuclear weapons, an analyst could come to the conclusion that it might prove to be useful for a government to threaten to commit the completely irrational and insane act of starting a nuclear war in order to avoid a conventional or nuclear war, or more cynically and realistically, to achieve certain geopolitical objectives. Furthermore, in order to make this insane threat credible, the threatening state must then proceed to develop the capability to launch and wage a nuclear war so that in the eyes of its intended adversary the completely irrational threat begins to look somewhat more rational. When the adversary inevitably responds in kind, these psychological and bureaucratic dynamics produce the momentum for generating the self-fulfilling prophecy of nuclear Armageddon.

I will not bother here to analyze at any length the logical contradictions and psychological fallacies of U.S. nuclear deterrence/terrorist doctrine since that task has already been performed quite admirably by my former teacher Robert Jervis in his definitive work The Illogic of American Nuclear Strategy (1984). But I simply wish to point out that the entire theory of nuclear deterrence/terrorism as currently practiced by the world’s nuclear weapons states represents a working-out of Schelling’s hypotheses propounding the “rationality of irrationality.” All of the world’s nuclear weapons states, and especially the two nuclear superpowers, have spent the past 45 years trying to make a completely irrational threat appear to be rational and in the process have had to pervert and destroy all elements of rationality, legality, constitutionality, morality and sanity that stood in their way. The task itself is ultimately doomed to failure unless and until the citizens of the world’s nuclear weapons states can figure out some practical means to eliminate nuclear weapons before nuclear weapons eliminate them.

The Illegal Status of Nuclear Arms Control Agreements

These observations then logically bring us to the question of the international legal status of nuclear arms control agreements.

From the perspective developed above, nuclear arms control agreements are simply part of an international criminal conspiracy between a small gang of criminal states designed to further perpetuate the conspiracy. Nuclear arms control agreements attempt to rationalize, regularize, modernize and perfect the instrumentalities of international criminal activity. Hence, they are entitled to no validity at all as a matter of positive international law.

That being said, until humankind can get rid of those instrumentalities of crime, it is probably preferable to try to control nuclear weapons than not to try to control them. On the other hand, a good argument can be made that nuclear arms control negotiations have never constituted more than soporifics designed by the nuclear weapons states, and especially by the two superpowers, to lull world public opinion into a false sense of trust in the process while, under their deceptive guise, such governments have pursued an unrelenting nuclear arms buildup. Nevertheless, whatever position on ultimately takes on this issue, we must never forget that all forms of nuclear arms control treaties concluded between the United States and the Soviet Union and among the nuclear weapons states themselves still deal with instrumentalities of internationally criminal and lawless behavior.

Thus, nuclear arms control agreements can only constitute a temporary expedient. Their overall objective must always remain that prescribed by article 6 of the 1968 Treaty on the Non-Proliferation of Nuclear Weapons, which the United States, the Soviet Union and the United Kingdom are strictly bound to obey as parties: “Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.” Universal nuclear disarmament is the only legally defensible, morally acceptable and logically consistent position that can be taken.

We must call upon all lawyers and lawyers’ organizations around the world, as well as all men and women of good faith everywhere, to join us in this crusade for universal nuclear disarmament. Otherwise, the human race will become a radioactive wasteland. The time for preventive action is now!