Disarmament and Nonproliferation Nuclear Risks:
Necessity and Illegality
RISKS: NECESSITY AND ILLEGALITY
During the past sixty years, since the first atomic bomb was developed in Los Alamos and the U.S. dropped atomic bombs on Hiroshima and Nagasaki, a profound dichotomy has continued, between a public awareness of the grave risks inherent in the threat or use of nuclear weapons, and the official U.S. policy of continued reliance on their development and deployment as ‘necessary’ for national security. The impossibility, however, of adequately addressing issues such as proportionality— including the risk of escalation of a ‘limited’ nuclear war— and protection of civilians, points squarely to their categorical illegality.
International laws existing in 1945, such as those from the 1907 Hague Convention, included precepts related to proportionality and protection of civilians. The first precept states that only force proportionate to expected military gains should be used, and that any incidental injuries to civilians should not be disproportionate to these gains. The second principle protects civilians from direct and indiscriminate injuries.
The 1923 Draft Hague Rules of Air Warfare included laws limiting the right of states to adopt weapons or means of warfare calculated to cause excessive or unnecessary suffering. The precept of protection of civilians was implicit in rules requiring that precautions be taken to avoid the destruction of religious, cultural, and medical buildings, and in rules designating combatants as the sole subjects and objects of warfare. While these Rules were not binding as Treaty law, they were accorded considerable status by military officers, and were cited by the District Court of Tokyo in the 1955 Shimoda case, brought by five Japanese plaintiffs to recover damages for injuries sustained by the U.S. atomic bombings... [B]y reasoning that “international jurists regard the Draft Rules as authoritative, and that some countries use them to guide the conduct of their armed forces... the Court is able to treat these Draft Rules as customary international law”. Moreover, While the Court denied the plaintiffs recovery on jurisdictional grounds, the principal holding of the Court was that the U.S. atomic bombings violated international law, for the following reasons:
The International Court of Justice [ICJ], in its 1996 Advisory Opinion on the Legality of Threat or Use of Nuclear Weapons, implicitly condemned the U.S. atomic bombings, in its analysis of uncertainty as to the legality of threat or use of nuclear weapons by a State in an extreme circumstance of self-defense, in which its very survival would be at stake:
Radiation and genetic illnesses, and other detrimental long-lasting effects intrinsic to nuclear weapons were accorded great weight in deliberations by the ICJ:
Principles of proportionality and protection of civilians, as essential to humanitarian law, were also emphasized by the ICJ:
The debate over the illegality, versus the justification of necessity, of the Allied bombings in Europe during World War II; the U.S. incendiary bombings of Japanese cities--which killed more than 100,000 civilians; and the U.S. atomic bombings of Hiroshima and Nagasaki, have all been discussed by Michael Walzer in the context of ‘supreme emergency’. He cites Churchill’s use of the term to justify Britain’s 1939 massive aerial bombardment of German cities to counter the greater threat of Hitler’s victory. Walzer perceives ‘supreme emergency’ as defined by two criteria, which correspond to the two levels on which ...necessity works: the... imminence of the danger and... its nature. The two criteria must both be applied. Neither one by itself is sufficient as an account of extremity. Nazi rule... was a threat to human values so radical that its imminence would surely constitute a supreme emergency [however], the British policy... had further consequences: it was the crucial precedent for the fire-bombing of Tokyo and other Japanese cities and then for... Truman’s decision to drop atomic bombs on Hiroshima and Nagasaki... the [indefensible claim] for the Hiroshima attack... was a utilitarian calculation made without the sliding scale... a claim to override the rules of war and the rights of Japanese civilians. 
The violation of these rights is perhaps best indicated simply by accounts of victims’ sufferings. In the words of Satoko Matsumoto, a survivor of Hiroshima:
And in the eyewitness account of Tsugiya Umebayashi, who was ten years old when the bomb fell on Nagasaki, describing her flight:
Accounts of familial suffering due to the lingering genetic effects of radiation are as horrifying, in a different way. In the words of Toyomi Hashimoto, a survivor of Nagasaki:
The U.S. atomic bombings were criminal; no claim can justify their necessity, even on a pragmatic level: recent scholarship by Hasegawa indicates, contrary to long-held beliefs, that Soviet entry into the war was a factor crucial for Japan’s surrender:
The moral implications of the illegality of the U.S. atomic bombings and lack of any defense of necessity is emphasized by Cassese:
A subverted defense of military necessity, albeit in a different context, was invoked by the U.S. Supreme Court in an infamous decision, Korematsu v. the United States, 32 U.S. 214 (1944). This case grew out of the dispossession and incarceration of all persons of Japanese ancestry on the West Coast following the Japanese attack on Pearl Harbor. In February 1942 President Roosevelt signed Executive Order 9066; Lt. General De Wit was named to execute this Order; and Congress backed evacuation measures with Public Law 77-503. Ten permanent camps were built:
The Supreme Court upheld the constitutionality of the incarceration, citing the judgment of the military authorities and Congress that there were disloyal members of that population, whose number and strength could not be quickly ascertained. Accordingly, the Court found that the judgment that exclusion of the whole group [was] a military imperative answer[ed]the contention that the exclusion was in the nature of group punishment based on antagonism to those of Japanese origin. 
This defense however, has been shown to be flawed, attenuated, and unjustified. Over-inclusiveness and racism are evident:
In the decades since 1945, while U.S. nuclear strategic policies have shifted from “massive retaliation” to “flexible response” to “limited nuclear war”, Fujita notes that, as the United States has increasingly grown to rely on nuclear weapons “for its national security, the government has been compelled to develop legal justifications for its nuclear weapons policies in order to legitimate the first use of nuclear weapons.” 
In recent years, following the events of September 11, 2001, the George W. Bush administration has made dubious claims of urgent necessity in linking the risks of terrorism and weapons of mass destruction. On November 13, 2001, Bush issued a Military Order which stated in part:
The 1949 Geneva Convention on the Treatment of Prisoners of War, of which the U.S. is a signatory, among other things prohibits violence, torture and cruel, humiliating or degrading treatment to persons protected by Prisoner of War status... The 1987 Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, of which the U.S. is also a signatory, among other things states:
In order to achieve its goals and deflect criticism of its policies under international law, Bush administration officials used obscure and extremely dubious reasoning to justify its reclassification of members of the Taliban and al-Qaeda from protections of the Geneva Conventions Prisoner of War status to that of “unlawful combatants”; and its redefinition of torture as constituting only the most severe physical injury, inflicted by interrogators with the “specific intent” of causing this suffering.
The unjust effects of the excessively cruel and over-inclusive practices of the Coalition Forces (CF) in Iraq may be found in entries of the 2004 Report of the International Committee of the Red Cross (ICRC):
The Bush administration’s specious, expedient redefinition of torture relied on the U.S. reservation, codified in 18 U.S.C. §§ 2340--2340A, in its ratification of the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment. A Memorandum recommending the standards of conduct for interrogators stated that, to constitute torture the victim must experience pain or suffering of a kind... equivalent to [that]... associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant body function would likely result. If that pain or suffering... is psychological, [it] must result from one of the [predicate] acts... in the statute, i.e. the prolonged mental pain caused by or resulting from:
Moreover, because [§2340A] requires that a defendant [interrogator] act with the specific intent of inflicting severe pain, the infliction of such pain must be the defendant’s precise objective. 
The recommendations of such memoranda written by Gonzales, Yoo and Bybee; sent to Bush; criticized by then-Secretary of State Powell; approved by Secretary of Defense Rumsfeld; were then modified somewhat, but not before confusion over the execution of official policies resulted in instances of abuse by interrogators that were tantamount to torture. According to the affidavit of one detainee, as reported by the ICRC:
The guards started to hit me on my broken leg several times with a solid plastic stick...they stripped me naked. One of them told me he would rape me... someone else asked me, “Do you believe in anything?” I said to him, “I believe in Allah”. So he said, “But I believe in torture and I will torture you.” Then they handcuffed me and hung me to the bed. They ordered me to curse Islam and because they started to hit my broken leg, I cursed my religion...They left me hang from the bed and after a little while I lost consciousness when I woke up, I found myself still hang from the bed and the floor. Until now, I lost feeling in three fingers in my right hand. 
Ironically, the Bybee Memorandum outlined a potential defense of Necessity for interrogators charged with §2340 violations. This suggested defense seems novel in its nastiness and expediency, but also weak in its speculative nature, or insufficient consideration of imminence:
Necessity...or choice of evils... [is a situation when] the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged... a detainee may possess information that could enable the United States to prevent attacks that potentially could equal or surpass the September 11 attacks... Clearly, any harm that might occur during an interrogation would pale to insignificance compared to the harm avoided by preventing such an attack [emphases added]. 
Sadistic as are such accounts of abuses or those publicized in the infamous “torture photos”, the deeper scandal has been the continuing policy of the Bush administration to deny any connection of these abuses with official policies and discount them as mere anomalies: administration officials, and particularly those at the Department of Defense, have managed to orchestrate a slowly-unfolding series of investigations, almost all... carried out within the military by officers who, by definition, can only direct their gaze down the chain of command...and who are each empowered to examine only a limited and precisely-defined series of links in the chain that connects the highest levels of government to what happened on the ground at Abu Ghraib and elsewhere... [a] key strategy of the defense is to focus on the photographs and to isolate the acts they depict... from any inference that they might have resulted... from policy. 
In September 2002, in its National Security Strategy, the Bush administration stated a right to take preemptive military action against threats arising from possession or development of weapons of mass destruction and from links to terrorism “even if uncertainty remains as to the time and place of the enemy’s attack” (U.S. National Security Strategy, September 2002).
Invoked as a basis for [the U.S. to invade] Iraq, the doctrine is incompatible with international legal constraint on resort to force... [Both customary international law and treaty law under the U.N. Charter have carefully limited the doctrine of anticipatory self-defense.] ...a recent treatise states that self-defense may justify the use of force [when, among other things], an attack is immediately threatened; ...there is no practicable alternative, particularly when another state or authority that legally could stop or prevent the infringement does not or cannot do so; and the use of force is limited to what is necessary to prevent the infringement. 
The above requirements were clearly not met In George Bush’s decision to invade Iraq. The lack of imminence is indicated in the protracted, unavailing search for “weapons of mass destruction” purportedly reconstituted by Saddam Hussein in Iraq, and the administration’s failure to comply with practicable alternatives is indicated in its flawed reading of U.N. Security Council Resolution 1441, which held that a return to the Security Council was required before resorting to force.
The current U.S. nuclear posture is contained in National Security Presidential Directive [NSPD]-17, “National Strategy to Combat Weapons of Mass Destruction” (December 2002). This stated in its introduction that “weapons of mass destruction(WMD)--nuclear, biological and chemical--in the position of hostile states and terrorists represent one of the gravest security challenges facing the United States.” The classified version of NSPD-17, as reported by the Washington Times on January 32. 2003, included the controversial sentence that “[t]he United States will continue to make clear that it reserves the right to respond with overwhelming force--including potentially nuclear weapons--to the use of [weapons of mass destruction] against the United States ...”
Read together, these official U.S. national security policy statements of November 2001, September 2002 and December 2002 raise alarming questions about the proclivity of the G.W. Bush administration to initiate the use of nuclear weapons, and its invocation of necessity for military force by linking, in attenuated and unwise ways, threats of terrorism and weapons of mass destruction.
The continued reliance of the U.S. on nuclear weapons is indicated in its strong ongoing support for the Stockpile Stewardship and Management (SS&M) Program, a vast complex of projects involving “subcritical” tests (i.e. those technically allowable as not reaching a “critical mass”): the capacity to design and develop new weapons... encompass[ing] both a test site of rapid resumption of full-scale underground testing and a nuclear warhead production facility... intended to allow rapid, flexible warhead production... at the weapons laboratories. 
Moreover, the U.S. policy of making ratification of the Comprehensive Test Ban Treaty (CTBT) conditional on its continued support for the SSMP, among other grave risks, prevents credence, in the international community, of any genuine or significant commitment of the U.S. to the goals of nuclear disarmament.
The develop[ing] race in nuclear weapons laboratory testing and
simulation technologies makes a Comprehensive Test Ban simultaneously
less “comprehensive” and more necessary... advances
in nuclear weapons technology... have rendered the CTBT, without
more, an arms control and horizontal proliferation device rather
than a disarmament measure... Advanced nuclear weapon states...
can upgrade their existing facilities while remaining within the
parameters of well-understood concepts and designs... Despite(and
in some ways because of) these developments, the CTBT remains an
important goal. A legally binding global norm banning explosive
testing would provide something of a “firebreak” if
tensions among the nuclear weapons states rise still further, making
the decision to resume testing in order to deploy new weapons systems...
more consequential. 
Unlike 1945, however, “each warhead in the U.S nuclear arsenal--currently ready to quickly launch 2000 strategic warheads--- would inflict vast heat, blast and radiation”  many times greater than those of the atomic bombs dropped on Hiroshima and Nagasaki. The stakes are consequently much higher now for the U.S. to acknowledge the risks inherent in nuclear weapons and to act on their illegality. The only real Necessity is for the U.S. and the other nuclear weapon states to finally begin now in earnest to comply with their disarmament obligations under Article VI of the Nuclear Non-Proliferation Treaty. These obligations were strengthened by the International Court of Justice in its 1996 Advisory Opinion, which held unanimously that “there exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control” [emphases added]. 
1. Falk, Richard, “The Shimoda Case: A Legal Appraisal of the Atomic Attacks upon Hiroshima and Nagasaki”, 59 AM.J. INT’L L., No. 4 (Oct. 1965), p. 770.
2. Ibid., p.776.
3. Burroughs, John, The Legality of Threat or Use of Nuclear Weapons, Lit Verlag 1997, p.46.
4. U.N. Gen. List No. 95 (8 July 1996) International Court of Justice, The Legality of the Threat or Use of Nuclear Weapons, §36.
5. Ibid., §78.
6. Walzer, Michael, Just and Unjust Wars, Basic Books, 1977, pp.252--263.
7. Cassesse, Antonio, Violence and Law in the Modern Age, Giuseppe Laterza & Figli, 1986, pp.11--12.
8. Ibid., p. 12
9. Ibid., p. 14
10. Hasegawa, Tsyuyoshi. Racing the Enemy, Harvard University Press, 2005, p.298.
11. Cassese, op. cit., pp. 25--28
12. Hatamaya, Leslie, Righting a Wrong: Japanese-Americans and the Passage of the Civil Liberties Act of 1988, Stanford University Press, 1993, pp. 14--19.
13. Tribe, Laurence H., American Constitutional Law (2nd ed.), The Foundation Press, 1988, p. 1466.
14. Hatamaya, op. cit., p. 17.
15. Fujita, Hizakazu, “First Use of Nuclear Weapons: Nuclear Strategy vs. International Law”, 3 KANSAI U. REV.L & POL. 57 9(1982), p.65.
16. Bush, George W., “Military Order of November 13, 2001: Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism”, Federal Register: November 16, 2001 (Vol. 66, No. 222), pp. 57831-57836.
17. Annex. G.A. Res. 46 (XXXIX 1984) 23 I.L.M. 1027 (1984), I, Art. I §1; Art. 2 §2.
18. “Report of the International Committee of the Red Cross on the Treatment by the Coalition Forces of Prisoners of War and Other Protected Persons by the Geneva Conventions in Iraq during Arrest, Internment and Interrogation”, February 2004, I, §§6 & 7.
19. Bybee, Jay, “Standards of Conduct for Interrogation Under 18 U.S.C. 2340--2340A”, Office of Legal Counsel, U.S. Dept. of Justice, August 1, 2002.
20. Al-Sheikh, Ameen Sa’ed, Sworn Statement to Gawdat Hussein, Baghdad Correctional Facility, Abu Ghraib, Iraq, 16 January 2004.
21. Bybee, op. cit.
22. Danner, Mark, “The Secret Road to Abu Ghraib”, Torture and Truth: America, Abu Ghraib, and the War on Terror, The New York Review of Books, 2004, p.40.
23. Deller, Nicole & Burroughs, John, “Jus ad Bellum: Law Regulating Resort to Force”, HUMAN RIGHTS MAGAZINE, Section of Individual Rights and Responsibilities, American Bar Association.
24. Lichterman, Andrew and Cabasso, Jacqueline, “Faustian Bargain 2000:Why ‘Stockpile Stewardship’ is Fundamentally Incompatible with the Process of Nuclear Disarmament”, Western States Legal Foundation, May 2000, pp. 5-8.
25. Ibid., p. 17.
26. Ibid., p. 43.
27. Lawyers’ Committee on Nuclear Policy, “Nuclear Obligations: 1945 and 2005”, July--August 2005.
28. U.N. Gen. List, ICJ, op. cit., §105 F.