Legal Limits on Presidential Power to Launch Nuclear Strike

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The Global Campaign for Peace Education, concerned about the current nuclear crisis and the continued neglect of the possibilities of law to reduce the frequency and severity of international violence is undertaking to offer ideas and proposals that inspire consideration of such possibilities. We begin the offerings with observations on executive power to initiate a nuclear strike by a distinguished international lawyer and peace activist, Peter Weiss. Weiss has spent a lifetime applying law to the advancement of human rights and peace. The comments below were circulated response to an article on the danger posed by President Trump’s bellicose reaction to North Korea’s nuclear weapons and missiles tests.

By Peter Weiss

There are several grounds on which a preemptive nuclear strike by the US against North Korea at this time would be a blatant violation of international law and would therefore trigger the Nuremberg obligation to refuse to carry out an illegal order. Here is a brief list of some of them:

  1. “Fire and Fury” would rise to the level of genocide
  2. “Fire and Fury”, or even the use of a single nuclear weapon, would violate all the principles of international humanitarian law, including discrimination, proportionality, unnecessary suffering
  3. It would not meet the Caroline standard of self-defense (instant, overwhelming and leaving no choice of means and no moment of deliberation), which would make it a violation of Article 2(4) of the UN Charter (prohibition of the threat and use of force in international relations)

There are precedents for the successful use of the Nuremberg obligation. At the time of the Iraq war a German major was given an order that he correctly interpreted as assisting the US military operation in Iraq. He refused to carry it out, invoking his belief in the illegality of the war. He was charged, convicted and reduced to the rank of captain. On appeal, he was exonerated by the Supreme Administrative Tribunal of Germany and restored to the rank of major, based on his good faith belief in the illegality of the war.

The law of war mandates that an illegal order must not be carried out. In that sense the President’s authority to launch a nuclear attack is not absolute.

Peter Weiss
President Emeritus
Lawyers Committee on Nuclear Policy
[email protected]
8/12/2017

Teaching Suggestion

Have students research the Nuremberg Principles and focus on the obligation of military and ordinary citizen to resist illegal orders. Ask them to reflect on how this obligation might form the grounds for citizen and congressional efforts to prevent nuclear war? Could it be the central principle of a strategy for a civil society campaign to abolish nuclear war? Some may also wish to research other relevant legal precedents and opinions on the legality of nuclear weapons such as that of the International Court of Justice. GCPE will post further material on these issues in the near future.

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