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Supported by Law and Common Sense


Adopt-a-Silo, October 2, 2004, Colorado

Nuclear Holocaust with Minuteman IIIs: The U.S. is ready to unleash, within 15 minutes of an order to do so, 500 Minuteman III Intercontinental Ballistic Missiles (MMIIIs) maintained on high alert in Colorado, Montana, Wyoming, North Dakota, South Dakota, Nebraska and Missouri. With each of these nuclear weapons, the U.S. knowingly prepares to inflict vast heat, blast and radiation 13-60 times that of the Hiroshima bomb in an uncontrollable strike against nations. The destructive power and radiation of explosions of a MMIII, as the International Court of Justice said of nuclear weapons generally, "cannot be contained in space or time ... would affect health, agriculture, natural resources and demography over a very wide area ... and would be a serious danger to future generations." MMIIIs are weapons of mass extermination.

U.S. law and international law as U.S. law prohibit threatening or inflicting indiscriminate harm and unnecessary suffering, in any circumstance in war or peace. The constitutional war powers of Congress and the president are not unlimited. Particular prohibitions of law are expressed in the U.S. criminal code that prohibits war crimes (18 USC 2441) and genocide (18 USC 1091-1093); U.S. treaties that are part of the "supreme law of the land" (U.S. Constitution, Article VI, clause 2); and universally binding rules and principles of humanitarian law. This body of law is summarized most authoritatively by the International Court of Justice (ICJ) in its 1996 advisory opinion on nuclear weapons.
  • It is a "fundamental," "cardinal," and "intransgressible" rule, the ICJ affirmed, that "States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilians and military targets."
  • Other rules identified by the ICJ forbid the infliction of unnecessary suffering, widespread, long-term and severe damage to the environment, and damage to neutral states; prohibit the commission of genocide by destruction of ethnic and other groups in whole or part; and prohibit violation of the right to life and other human rights underlying humanitarian law.

Because MMIIIs are indiscriminate and uncontrollable, threat or use of MMIII in any circumstance is illegal.

  • If a use of weapons "would not meet the requirements of humanitarian law," the ICJ explained, "a threat to engage in such use would also be contrary to that law." Since any use of MMIII would harm civilians indiscriminately and cause unnecessary suffering, threat of their use is also illegal. But a real threat of war crimes exists because the MMIIIs are kept on high alert and it is declared policy, for example in the 2001 Nuclear Posture Review, that the U.S. may use nuclear weapons in a wide range of circumstances.
  • Humanitarian law applies equally to both sides of a conflict, both the aggressor state and the defending state. Neither self-defense or retaliation justify threat or use of indiscriminate weapons. The International Criminal Tribunal for the Former Yugoslavia stated, "No circumstances would legitimize an attack against civilians even if it were a response proportionate to a similar violation perpetrated by the other party." Also, it is well known that plans exist for use of MMIIIs and other U.S. nuclear forces in a preemptive, firstike attack.
  • That MMIIIs are deployed pursuant to U.S. law and Congressional appropriations is no excuse. As the Nuremberg Tribunal famously held, the "very essence of the [Nuremberg] Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual state." In principle, individuals could be prosecuted for use of MMIIIs under Nuremberg law, the Statute of the International Criminal Court, and the U.S. criminal code.

The practical and lawful solution, a current obligation of all countries as affirmed by the International Court of Justice, is "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." This obligation arises from Article VI of the Nuclear Nonproliferation Treaty (NPT), a U.S. treaty, and other international law. In the 2000 NPT Review Conference, the U.S. and other NPT-acknowledged nuclear-armed states made an "unequivocal undertaking to accomplish the total elimination of their nuclear arsenals." 87% of U.S. citizens want our government to negotiate a treaty for complete nuclear disarmament. (Lake Sosin Snell, 1997)

Citizens' actions to oppose illegal threat or use of MMIII and to promote U.S. compliance with the global obligation of elimination of nuclear arsenals: Since any threat or use of MMIIIs violates the most fundamental law, citizens have felt compelled to exercise their right in a democracy to "bear witness, to speak powerless truth to truthless power." While federal courts have consistently declined to find actions involving trespass or minor property destruction lawful, in some instances federal courts and prosecutors have reduced charges or sentences or foregone prosecution altogether. In the 2003 trial of three Dominican Sisters, Ardeth Platte, Carol Gilbert and Jackie Hudson, the trial court did not permit any defense argument addressing the illegality of threat or use of MMIII, holding that the Sisters’ measured, open, non-violent and symbolic acts could never be legally justified, and convicted them of sabotage of the national defense for taking down a part of a missile silo fence. The pending appeal contends that the sabotage conviction is a clear instance of overreaching.

The constitutional and human rights of citizens to express opposition to MMIII through speech, assembly, and petition for redress of grievances should be fully safeguarded. When citizens go beyond such expression to engage in principled, reasonable, and non-violent opposition involving such acts as trespass or minor property destruction, they should be afforded the opportunity to offer a justification based on the illegality of threat or use of MMIII. Both modes of opposition to MMIII are well justified on moral and practical grounds. They build upon the Nuremberg principle of individual responsibility. They respond appropriately to the gravity of the risk facing us all. And they exemplify and promote a loyalty to humankind and the earth that is essential to ensuring a secure and livable world for all living creatures.

Lawyers' Committee on Nuclear Policy, New York (www.lcnp.org)
October 2004







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