Isabella Carter
The legality of nuclear strikes is a highly debated topic. While the US president can currently launch nuclear weapons at any time for any reason, there is a legal duty to disobey illegal nuclear strike orders. An order that is not militarily necessary, causes unnecessary human suffering, where the military advantage does not outweigh the human cost, or does not distinguish between combatants and non-combatants is illegal. If an illegal order is carried out, the actor could be held liable for war crimes.
| Characteristics | Values |
|---|---|
| Use of nuclear weapons instead of conventional weapons | Would constitute a war crime |
| Military necessity | If the attack is not necessary to destroy a particular target, the order is illegal |
| Human suffering | If the attack causes unnecessary human suffering, the order is illegal |
| Human cost | If the military advantage does not outweigh the human cost, the order is illegal |
| Distinction between combatants and non-combatants | If combatants and non-combatants have not been distinguished, the order is illegal |
| Legal duty | There is a legal duty to disobey illegal nuclear strike orders under national and international law |
| Criminal and civil liability | Failure to disobey an illegal order may result in criminal and civil liability |
| Humanitarian law | The use of nuclear weapons may violate humanitarian law |
| Orders can be refused | Military leaders and generals would reject an illegal order for a nuclear strike |
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What You'll Learn
The legality of nuclear strikes
According to the Laws of Armed Conflict, a military order must meet certain requirements to be considered legal. These include military necessity, proportionality, distinction between combatants and non-combatants, and the prevention of unnecessary suffering and arbitrary loss of life. If an order fails to meet these criteria, it may be deemed illegal.
In the United States, the president has the sole authority to order the launch of nuclear weapons at any time for any reason without checks from other branches of government. However, this does not mean that the president can launch a nuclear strike unilaterally. The order must be transmitted down a chain of command, and individuals in this chain have the right to refuse illegal orders. This refusal is based on the legal duty to disobey illegal nuclear strike orders, which originates in the rejection of the "superior orders" defence.
Despite the president's sole authority, there have been concerns about the legality of specific nuclear strike orders, particularly during the Trump administration. Gen. John Hyten, the top US nuclear commander, stated that he would refuse an illegal order from President Trump and advised against a strike if he considered it unlawful. However, there is no strict definition of "imminent" threat, and the military would likely be reluctant to outright refuse a presidential order.
To address these concerns, some have proposed eliminating sole authority by requiring consent from other government branches for a nuclear attack. Additionally, adopting a “No First Use” (NFU) policy would restrict the president's power to use nuclear weapons and signal that the United States views nuclear weapons as a deterrent rather than a weapon of war.
In conclusion, the legality of nuclear strikes is a complex issue governed by international humanitarian law and the Laws of Armed Conflict. While the president has the sole authority to order nuclear strikes in the United States, there are checks and balances in place to prevent illegal orders, including the right of individuals in the chain of command to refuse unlawful orders. However, the lack of a clear definition of "imminent" threat and the deep-seated obedience to civilian control in the military may hinder the effectiveness of these safeguards.
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The Law of Armed Conflict
In the context of nuclear weapons and their potential use, the Law of Armed Conflict imposes strict regulations and prohibitions. Nuclear weapons, due to their indiscriminate nature and long-lasting effects, are subject to intense scrutiny under these laws. Any use of nuclear weapons must comply with the principles of distinction, proportionality, and precaution to ensure that civilian casualties and damage to civilian objects are minimised.
The development, possession, and use of nuclear weapons are heavily regulated. Unauthorised dealings in special nuclear materials, including their development, production, distribution, and transfer, are prohibited without specific authorisations or determinations that such activities are in the interest of the United States. The illegal acquisition, possession, and use of nuclear materials by individuals or organisations are criminalised, with penalties including imprisonment for life or any term of years.
The transportation of nuclear materials is also closely monitored, with laws prohibiting the impeding of vehicles transporting nuclear materials. The potential use of nuclear materials by terrorist organisations or foreign terrorist powers is a significant concern, and federal law enforcement agencies are empowered to combat these threats. Additionally, the United States has an interest in preventing the illegal use of nuclear materials by corporations doing business in countries with access to such materials, especially those from the former Soviet Union.
The United States has established a Nuclear Weapons Council, which includes the Secretary of Defense and the Secretary of Energy, to oversee various aspects of nuclear weapons programs. This includes coordinating and approving activities related to the study, development, production, and retirement of nuclear warheads, as well as budgeting and risk management. The Law of Armed Conflict, in this context, aims to ensure the responsible management and use of nuclear weapons while minimising the potential for catastrophic consequences.
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Humanitarian law
The International Court of Justice (ICJ) has considered the legality of the use of nuclear weapons in the context of international humanitarian law. In doing so, the ICJ has emphasised two key principles:
- The first principle is the distinction between combatants and non-combatants. States must never target civilians and must not use weapons that cannot distinguish between civilian and military targets.
- The second principle states that unnecessary suffering should not be inflicted on combatants.
The ICJ has noted that the unique characteristics of nuclear weapons, including their destructive capacity and ability to cause human suffering, must be considered when evaluating the legality of their use. The use of nuclear weapons may violate international humanitarian law if it causes widespread and long-term damage to the environment, resulting in famine, starvation, and psychological injury to survivors.
According to the Martens Clause, civilians and combatants are protected by the principles of international law, humanity, and public conscience. While the applicability of international humanitarian law to nuclear weapons is not disputed, the conclusions drawn from it are controversial due to the distinct nature of nuclear weapons.
International humanitarian law also provides specific protections for hazardous sites like nuclear power plants, recognising the immense risks they pose to civilians if damaged or targeted. Military objectives should not be located near nuclear power plants, and further agreements between parties in armed conflict can provide additional protection for such sites.
In summary, the use of nuclear weapons must comply with international humanitarian law, which aims to protect civilians, prevent unnecessary suffering, and minimise environmental harm. The unique characteristics and consequences of nuclear weapons make their use highly regulated under international law. Those ordered to launch a nuclear strike must evaluate the legality of the order and may have a duty to reject it if it violates these principles, as carrying out such an order would constitute a war crime.
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The role of Congress
The President's sole authority means they can order the launch of nuclear weapons at any time, for any reason, without checks from other branches of the government. This is a significant responsibility and power, and it has raised concerns, especially given the unpredictable and volatile behaviour of some presidents.
There have been calls for Congress to play a more active role in authorising the use of nuclear weapons. Proposals to eliminate sole authority would require the consent of other individuals in the government, including Congress, to conduct a nuclear attack. This would ensure a more democratic process and provide a check on the President's power.
Additionally, Congress has the power to enact legislation or adopt a "No First Use" (NFU) policy, which would restrict the President's power to use nuclear weapons first. An NFU policy would signal that nuclear weapons are for deterrence rather than warfare and enhance US and allied security by providing clarity on the country's stance.
However, there are concerns that altering the President's sole authority could undermine civilian control over the military and create confusion in the chain of command. Some argue that insubordination is not a reliable safeguard, and it may even be dangerous to encourage military personnel to question orders.
In conclusion, while Congress currently has limited power over the President's ability to launch nuclear weapons, there are ongoing discussions and proposals to increase their role and provide additional checks and balances to this critical decision-making process.
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The chain of command
The military may reject an order that is perceived to violate the laws of war, and there are legal concerns about the role of Congress in authorizing the use of force. The military order must meet certain requirements under the Laws of Armed Conflict. If it is not militarily necessary to destroy a particular target, the attack will cause unnecessary human suffering, the military advantage does not outweigh the human cost, or combatants and non-combatants have not been distinguished, an order would be illegal.
Individuals in the chain of command may refuse to follow orders that they believe to be illegal. However, objections are more likely to result in consultations and changes to the president's order than a refusal by the military to execute the order. The duty to disobey illegal orders originates in the law's rejection of the "superior orders" defense. An order must be “manifestly” or “clearly” illegal, not just debatably or arguably illegal. Anyone who carries out an illegal strike is potentially liable for war crimes.
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Frequently asked questions
An order for a nuclear launch is illegal if it is not militarily necessary to destroy a particular target, if the attack will cause unnecessary human suffering, if the military advantage does not outweigh the human cost, or if combatants and non-combatants have not been distinguished.
Anyone in the chain of command can refuse to follow a nuclear launch order that they believe to be illegal. However, objections would likely result in consultations and changes to the order, rather than an outright refusal.
Anyone who carries out an illegal nuclear launch order is potentially liable for war crimes under national and international law.
The US armed forces are obligated to follow legal orders, not illegal ones. Generals would expect a good explanation for the strike and would be obliged to say "no" to an illegal order.
