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NUCLEAR TERROR |
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NUCLEAR TERROR |
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Francis A. Boyle
From January 8-12 Francis A. Boyle served as the 18th Bertrand Russell Peace Lecturer at McMaster University in Canada. Previous Russell Lecturers have been E.P. Thompson, Elena Bonner, Edward Said, Ramsey Clark, Nobel Peace Prize Winner Joseph Rotblat, Johan Galtung, and Noam Chomsky. Philip Berrigan Philip Berrigan began nonviolent resistance to U.S. wars in 1966, breaking laws |
As the U.S. War on Terrorism hurtles into uncharted waters, challenging accepted norms of international law and setting a pattern for peremptory state behavior, could a nuclear strike against a non-nuclear "rogue state" become an American option? Could conflicts between other nuclear states such as India and Pakistan go nuclear? The Clinton Administration’s Presidential Decision Directive 60 asserted a U.S. right to target non-nuclear states with nuclear weapons in 1997. But PDD60, as well as nuclear deterrence as a whole -- both the use and threatened use of nuclear weapons -- is illegal under the international law of warfare. In fact, Francis A. Boyle argues in The Criminality of Nuclear Deterrence, the Bush administration’s toying with the use of tactical nuclear weapons in Afghanistan, its intent to proceed with National Missile Defense, to renew nuclear testing and develop "bunker-busting" nuclear weapons will have disastrous impact on existing international efforts to rein in the global nuclear arms race through the Comprehensive Test Ban Treaty, and the Nuclear Non-proliferation Treaty. Already, the Anti-Ballistic Missile Treaty has fallen before its scythe. This book provides a succinct and detailed guide to understanding the arms race from Hiroshima/ Nagasaki through the SALT I, SALT II, ABM and START efforts at arms control, to Star Wars/National Missile Defense, U.S. unilateral abrogation of the ABM Treaty, and events in Afghanistan and beyond. It clarifies the relevant international law, from the Hague Conventions through the Nuremberg Principles to the recent World Court Advisory Opinion, as well as tracing contradictions in and contraventions of domestic guidelines established in the U.S. Army Field Manual of 1956 on The Law of Land Warfare, which remains the official primer for U.S. military personnel concerning the laws of war to which they must regard themselves as subject. More disturbingly, Boyle reviews the intricacies of the foreign policy controversies and objectives which mark the development of American nuclear policy, often pressed forward by civilian administrations seeking to promote their geopolitical agenda over the advice and desires of the American military itself. This book is an effective tool and a "must read" for the burgeoning anti-nuclear and peace movements, church groups, and lawyers defending anti-nuclear resisters. It should also prove instructive for the diplomatic community, and for civilian and military personnel who frame and carry out America’s nuclear policies, who more than any must weigh the possibility of being summoned one day before an international war crimes tribunal
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Click Here*
(99k PDF file) to read the review from *note that the review originally appeared in the March/April 2003 issue of The Federal Lawyer and is used with permission. |
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The Criminality of Nuclear Deterrence is International Law Professor Francis Boyle's latest work. It lays out the intellectual and legal foundation for an indictment of U.S. nuclear policy and its architects, should any court aspire to assert jurisdiction on this issue. In the meantime, Boyle's damning post-9 / 11 legal analysis of U.S. nuclear war policy and the so-called "war on terrorism" is the best single book for nuclear resisters to study if they intend to defend their own direct action under international law. The
Nuclear Resister, |
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The
special introduction deals with the events of September 11 and the
US government response, including many references to recent history,
which condition that response. This will be returned to later. The
rest of the book, however, deals with international law in relation
to nuclear weapons, and does so in great detail. For the lay reader
this is very difficult to fully comprehend, liberally sprinkled as
it is with legal terms like injuria non oritur jus and opinio juris.
Despite this, it is possible to appreciate the main conclusion:
nuclear weapons and nuclear deterrence are not only illegal, but, as
the title indicates, criminal under international and US law,
including the US Army Field Manual of 1956 on The Law of Land
Warfare, itself based on earlier versions which support the same
conclusion. Every person involved in making decisions about the use
of nuclear weapons, from the US President down to the operator who
actually presses the button is potentially liable to prosecution,
with penalties in some cases ranging from execution to a fine of not
more than $1million or imprisonment for not more than twenty years,
or both. In relating this to Hiroshima and Nagasaki, it is stated
that all US government officials and military officers who knowingly
participated in these bombings could have been (and still can be)
lawfully punished as war criminals. This is a breathtaking claim,
which should at the very least give pause for thought to anyone
today involved with nuclear weapons at any level. In
refuting the standard defence of nuclear apologists, that there is
no specific prohibition of the use of nuclear weapons in
international law, a distinction is made between the
“prohibitive” and “permissive” theories of international
law. It is argued that the Nuremberg principles, established in
1945, support the latter; even though the International Court of
Justice has adopted the “prohibitive” theory in the past,
international law is continually evolving, and needs to do to cope
with changes in nuclear doctrine. A
large part of the book is a collection of previous writings. This
does not affect in any way the validity of the arguments on basic
principles, but it is a little out of date in some respects. For
example, the chapter on Star Wars was originally published in 1989,
and does not include the many developments since then. This is a
pity, for the new relationship between the US and Russia, in the
context both of Son of Star Wars and of nuclear weapons generally,
deserves a detailed analysis. (There is a brief reference in the
introductory chapter.) Again, there is no reference to the Nuclear
Posture Review, a very important recent development. (See Frank
Barnaby’s report in the last issue of World Disarm!) Because
of the way it is compiled, the book is also somewhat repetitive. It
seems to this reviewer that it could be significantly condensed –
perhaps not quite to pamphlet length, but to a much shorter book –
and would thereby gain a wider readership and possibly have a
greater impact on that readership. Returning
now to the special post-September 11 introduction, this is a
scathing attack on what he calls the nuclear nihilism of the Bush
Jr. administration, the US Nuclear Power Elite and the US Nuclear
Empire. The terminology of the ”war against terrorism” is
analysed and comprehensively criticised. One section is headed:
Retaliation is not self-defence, and refers to a State Department
pronouncement in the 1970s – the Vietnam era! – that retaliation
and reprisal were prohibited by international law. It is strongly
argued that the war against Afghanistan cannot be justified on
either the facts or the law, domestic or international. Instead, it
is categorised as part of a Pentagon war plan for the control of oil
and gas resources. Anti-terrorist legislation introduced by
Attorney-General Ashcroft is described as a Police State Act, and
great concern is expressed for the erosion of civil rights and the
US constitution. Many other cogent comments are made on various
aspects of George Bush Jr.’s policies, at home and abroad. Despite
a few criticisms, this is an enormously valuable book. Any supporter
of nuclear weapons would find it very difficult to refute its
arguments. But also, above and beyond the legal analysis, the basic
moral question is posed: does the human species have a future, or is
it doomed to perish in a nuclear holocaust? If it is left to George
W. Bush and his cronies, there is not much room for optimism. FRANK
JACKSON, Vice-Chair, |
| TABLE OF CONTENTS FOREWORD BY REV. PHILIP BERRIGAN SPECIAL INTRODUCTION: GEORGE BUSH, JR., SEPTEMBER 11th AND THE RULE OF LAW Machiavelli Redux International Legal Nihilism 11 September 2001 The Facts The Powell/Blair White Paper The Cover-Ups The Bin Laden Video Framing a Response to September 11th Terrorism and the Law The U.S. Policy Preference: Not Terrorism - War The UN Security Council Disagrees: Terrorism, not War Bush Sr. v. Bush Jr. No Declaration of War from Congress The Infamy of Korematsu Instead, A Blank Check to Use Military Force Bush Sr. v. Bush Jr. Redux "Ending States" Honest Nuclear War-Mongering The Prostitution of NATO Bush Jr.'s Crusade The U.S./UN Ambassador of Death Nazi "Self-defense" Resurfaces Retaliation Is Not Self-Defense Choosing Violent Resolutions for International Disputes Humanitarian Catastrophe Why War? It's Still the Oil, Stupid! How Empires Rule at Home Bush Jr's Constitutional Coup D'Êtat Ashcroft's Police State Bush's Kangaroo Courts The Bush Jr. Withdrawal from the ABM Treaty Conclusion/Prologue CHAPTER 1: THE U.S. EMBRACES INTERNATIONAL LEGAL NIHILISM CHAPTER 2: THE LESSONS OF HIROSHIMA AND NAGASAKI "Points of Choice" The Shimoda Case U.S. War Department Field Manual 27-10 (1940) Protections for the Civilian Population The Prohibition on Collective Punishments Truman's Utilitarian Justification Military Necessity? Aerial Bombardment Strategic Warning Military Versus Civilian Attitudes Toward the Bomb The Interim Committee The Hague Regulations Personal Criminal Responsibility The Nuremberg Charter The International Military Tribunal for the Far East The Geopolitical Reasons Behind Hiroshima and Nagasaki CHAPTER 3: THE RELEVANCE OF INTERNATIONAL LAW TO THE PARADOX OF NUCLEAR DETERRENCE Critique of the "Positivist" Approach to Analyzing the Legality of Nuclear Weapons The U.S. Government's Argument for the Legality of Using Nuclear Weapons The Relevance of the Nuremberg Principles to Nuclear Deterrence The Lotus Case Versus the Martens Clause The Precedential Significance of America's Response to Germany's Policy of Unrestricted Submarine Warfare During the First World War Paragraph 35 of the U.S. Army Field Manual Reconsidered The Illegality of U.S. Nuclear Deterrence Doctrine Promotes Military Insubordination Analyzing the Legality of Illegality of the Reagan Administration's "Protracted Nuclear War-Prevailing" Deterrence Doctrine The Theory Versus the Reality of U.S. Strategic Nuclear Deterrence The Counterproductivity of the Reagan Administration's SIOP A Preemptive Nuclear Strike Upon the Soviet Union Nuclear Deterrence of Conventional Warfare Is it Lawful to Possess Nuclear Weapons? Conclusion CHAPTER 4. STAR WARS VS. INTERNATIONAL LAW: THE FORCE WILL BE AGAINST US! The Deadlocked Geneva Negotiations SALT I The U.S. MIRV Program The Fate of SALT II The SALT II MIRV Buildup SALT II Violations? The SDI Program SDI vs. the ABM Treaty The Reinterpretation of the ABM Treaty SDI as a Propaganda Gesture SDI at Geneva Reagan's Repudiation of SALT I and SALT II SDI as Part of the Nuclear Arms Race SDI as a First-Strike System Progress at Geneva? START at Geneva Conclusion CHAPTER 5. THE CRIMINALITY OF NUCLEAR DETERRENCE Introduction Authority of the World Court's Advisory Opinion Summary of the World Court's Advisory Opinion The Criminality of the Threat and Use of Nuclear Weapons The Importance of Paragraph 104 of the Advisory Opinion Burden of Proof The Right to Life Genocide Environmental Protection Violations of the United Nations Charter The Principles of Necessity and Proportionality Nuclear Escalation Reprisals The Illegality of Nuclear Deterrence Possession of Nuclear Weapons Nuclear Weapons and the Laws of War Nuclear Deterrence and International Humanitarian Law Nuclear Weapons and Nuremberg Accountability Nuclear Weapons and International Humanitarian Law Violation of the International Laws of Neutrality Condemnation of Tactical Nuclear Weapons and Warfare Conclusion on International Humanitarian Law and Nuclear Weapons The World Court's Non-Pronouncement in Paragraph 97 Nuclear Disarmament The Dispositif Unanimous Ruling on the U.N. Charter Unanimous Ruling on International Humanitarian Law Unanimous Ruling on Nuclear Disarmament The Court's Ruling on the Threat and Use of Nuclear Weapons The Importance of Paragraph 104 Interpreting Paragraph 105 (2) (E) The Dissenters to Paragraph 105( 2) (E) Conclusion CHAPTER 6: COULD THE U.S. WAR ON TERRORISM GO NUCLEAR? INDEX |
Palestine, Palestinians, and International Law
