August 4, 2017
Anthony J. Colangelo
I. INTRODUCTION
In this essay Anthony Colangelo concludes: “An order to use a nuclear weapon instead of a conventional weapon when the same military advantage can be gained by either gives rise to a duty to reject that order. To do otherwise and follow the order would constitute a war crime for which the actor could be held liable.”
Anthony J. Colangelo is a Gerald J. Ford Research Fellow and professor of law at Southern Methodist University in Dallas, and consultant for the Nautilus Institute for Security and Sustainability.
This essay was also published in the LA Times oped page here. It is the first publication of the Nautilus Institute project on a Global Nuclear Command, Control and Communications or NC3 Code of Conduct. The project is funded by the MacArthur Foundation.
Banner image: Blast parameters section of Nuclear Bomb Effects Computer (Glasstone), here.
II. NAPSNET SPECIAL REPORT BY ANTHONY J. COLANGELO
WOULD THE MILITARY REALLY HAVE TO OBEY A TRUMP COMMAND TO FIRE A NUCLEAR WEAPON?
August 4, 2017
At a security conference late last month, the commander of the U.S. Pacific Fleet was asked what he would do if President Trump ordered him “to make a nuclear attack on China.” The commander, Adm. Scott Swift, answered promptly that he would, framing the issue as one of democratic governance and civilian control of the military.
“Every member of the U.S. military has sworn an oath … to obey the officers and the president of the United States as the commander in chief appointed over us,” he said.
But is that quite right? Isn’t there such a thing as an illegal order? And if so, what kind of right or, more accurately, what kind of duty exists to disobey it?
How can, say, the commander of the U.S. Pacific fleet know if an order is so obviously illegal that he’d be held liable?
Second point first: As a matter of fact, it is illegal to obey an obviously illegal order. Indeed, the law clearly rejects the “superior orders” defense. Colloquially put, the defense goes something like this: “I cannot be liable for carrying out an illegal act because I was simply following orders.” At least since the Nazis were prosecuted for war crimes and crimes against humanity at Nuremberg, this defense has largely disintegrated.
If — continuing the Nazi parallel — the “commander in chief appointed over us” tells military officials to commit genocide, they can’t legally go along with it. Legally, they must say no.
But how can, say, the commander of the U.S. Pacific fleet know if an order is so obviously illegal that he’d be held liable?
Under international and U.S. law, the order must be “manifestly” or “clearly” illegal, not just of debatable or arguable legality. What this means is that the person ordered to launch or to plan the launch knows or should know that the order is illegal. The Department of Defense manual cites as an example firing on the shipwrecked. An order to shoot an innocent civilian in the head also would qualify.
The kind of weapon used is, of course, germane as well. The law of war — otherwise known as humanitarian law — is designed to protect civilian life and reduce suffering even though, inevitably, in armed conflict there will be some amount of civilian death and suffering.
Nuclear weapons are obviously more catastrophic than conventional weapons. Therefore, any time the same or similar military advantage can be gained by using a conventional as opposed to a nuclear weapon, the legal thing to do is stick to conventional weapons. Using the nuclear option in such a situation actually constitutes a serious violation of international law. Following such an order is, in turn, a war crime under Additional Protocol I to the Geneva Conventions on the Law of War, which binds all states.
At least five unique characteristics ominously separate nuclear weapons from conventional weapons in ways that promise to increase civilian death and suffering.
First, quantitatively, the blast power, heat and energy generated far outstrip that of conventional weapons. Second, the radiation released is so powerful that it damages DNA and causes death and severe health defects throughout the entire lives of survivors as well as their children exposed in utero. Third, nuclear weapons make impossible humanitarian assistance to survivors at the blast scene struggling to survive, leading to more suffering and death. Fourth, damage to the environment leads to widespread famine and starvation. And fifth, nuclear weapons cause long-lasting multi-generational psychological injury to survivors of the blast.
All of these factors weigh heavily against the humanitarian goals of the law of war, which again is designed chiefly to prevent and reduce civilian death and suffering.
So anyone ordered to plan or launch a nuclear strike is on notice: An order to use a nuclear weapon instead of a conventional weapon when the same military advantage can be gained by either gives rise to a duty to reject that order. To do otherwise and follow the order would constitute a war crime for which the actor could be held liable.
III. NAUTILUS INVITES YOUR RESPONSE
The Nautilus Asia Peace and Security Network invites your responses to this report. Please send responses to: nautilus@nautilus.org. Responses will be considered for redistribution to the network only if they include the author’s name, affiliation, and explicit consent.
As one who opposes the current administration, nevertheless the thrust of this OpEd is not only disturbing, but a minority legal view presented as settled law. In effect, this writer is warning of the possible consequences of planning a nuclear strike, which is not news, as Robert McNamara quoted his boss about an earlier method of mass killing: General Curtis LeMay, said that the fire bombing of Tokyo would subject them to being tried for “war crimes if we lose this war.”
This was printed as an OpEd in the L.A. Times, claiming that even the planning of what has been the central tenet of national defense, Mutually Assured Destruction, during the cold war, if used in a different context is a criminal act.
The OpEd presented a point of view as legal fact, and does not balance, or even acknowledge, the need for a chain of command, affirmed by individual oath of office and enforced by sanctions by the Military Code of Justice; nor does it acknowledge that planning and having the will to implement such a massive attack is integral to maintaining a deterrent against any state actor who would consider a first strike against us.
Th principle discussed in this article should be independent of the question of whether the current president’s actions have made it obvious that this individual should not possess the awesome responsibility of making this decision. If this is the case, an argument for his constitutional removal is certainly appropriate.
However to propose that a decision by a President of the United States, one ideally chosen for having the wisdom and judgement to make such a decision, is subject to independent evaluation by everyone in the chain who participates in it’s implementation negates the reality that war, it’s planning and pursuing, is and must be defined by standards specific to this organized infliction of death and destruction.
There cannot be an effective military without a chain of command, whether tactical or the highest strategic decision. There can be no veto, no matter how sincerely held, by those who volunteer to serve under these conditions. To assert the contrary, as a finding of law, conflates political animus with national survival.
Allow me a rejoinder:
The post’s author begins by acknowledging the settled law of liability for war crimes that manifestly violate both U.S. and international law. This is certainly not a minority position, at least since Nuremberg. And to be perfectly clear: I am not arguing against planning a nuclear strike—only a manifestly illegal one.
Of course there is a chain of command (but note that it does not apply to a unilateral decision by the president, who may simply call up a crewmember and order a strike). All persons down the chain of command have a duty to disobey a manifestly illegal order—whether that order comes in the context of a nuclear strike or not.
The standards specific to this “organized infliction of death and destruction” are clearly spelled out in U.S. law incorporating international law and, specifically, Additional Protocol I to the Geneva Conventions; in particular, principles of distinction, proportionality, military necessity, and prevention of unnecessary suffering. The author then, incorrectly, and without support, excepts nuclear strikes from this established body of U.S. and international humanitarian law—law that, inter alia, heads of STRATCOM explicitly say they and the rest of the military are absolutely bound by. That is precisely why the chain of command vets a predicate series of options under the law that the president may then choose from if and when he decides upon a nuclear strike.
In short, there is indeed a veto against a manifestly illegal strike order. In fact, it’s a duty. That veto (or duty) runs down the chain of command to anyone with sufficient knowledge of the strike so as to know or should know of the manifestly illegal strike order. The sincerity of this duty is of no import; the legality of it is. Anthony Colangelo
The real question is what kind of order should be refused.
Humanitarian law of war has number of general principles:
1) military necessity,
2) distinction between civilians and combatants,
3) principle of proportionality and,
4) avoiding unnecessary suffering.
Counterforce strike (target is one that has a military value) with nuclear weapons would be most likely legal. Countervalue strike (the targeting of an opponent’s assets which are of value but not actually a military threat) against North Korea would be most definitely be illegal.
U.S. Pacific Fleet commander has good knowledge of North Korean threat, knows valid targets and can be expected to stay informed of the evolving situation. If the president orders strike against population center, the strike should be refused. Principle of proportionality, or necessity is more tricky question. Is nuclear strike as response to small artillery barrage illegal or is it necessary to counter what’s comes next?
There are issues that are beyond legality. Basic common sense and humanity may require disobeying direct orders.
If commander of the U.S Pacific fleet sees that the order is erratic but can’t find legal loophole, he may drag his feet, break the protocol and seek confirmation and justification using other means (phone calls to Washington). If nothing else works, he may refuse the order and face the consequences, “Let history be my judge”. There are worse things than refusing to follow orders. Commander must look at the bigger picture and historical and humanitarian importance of their actions.
I think that the erratic presidency of Donald Trump makes it more likely that military commanders will disobey command to use nuclear weapons.
They can’t say it publicly, of course. Asking the question from Adm. Swift was silly. Whatever he thinks he might do, it would be counterproductive to say so in public. It would reduce the value of US nuclear deterrence and he would be fired instantly.