The Duty to Disobey Illegal Nuclear Strike Orders
Harvard National Security Journal, Forthcoming
35 Pages Posted: 9 Oct 2017 Last revised: 12 Feb 2018
Date Written: October 6, 2017
This Essay argues there is a legal duty to disobey illegal nuclear strike orders. Failure to carry out this duty may result in criminal and civil liability. Because nuclear weapons are quantitatively and qualitatively different from conventional weapons, typical legal calculations regulating their use under the laws of war or humanitarian law, as well as human rights law, change along with the change in weaponry.
At least five “unique characteristics” of nuclear weapons ominously distinguish them from conventional weapons in ways that promise only to increase civilian death and suffering. First, quantitatively, the blast power, heat, and energy generated far outstrip that of conventional weapons, likely rendering nuclear weapons indiscriminate. Second, qualitatively, 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. Third, nuclear weapons make virtually impossible humanitarian assistance to survivors at the blast scene struggling to survive, leading to more suffering and death. Fourth, damage to the environment may produce not only devastating environmental harm itself but also widespread famine and starvation. 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 and human rights law, which are designed chiefly to prevent and reduce civilian death and suffering. These humanitarian and human rights rules require distinction between combatants and civilians, proportionality in attack, military necessity, prevention of unnecessary suffering and superfluous injury, and prevention of the arbitrary loss of life.
The Essay’s thesis largely boils down to: If conventional weapons can be used to achieve the same or similar military objectives as nuclear weapons in proximity to civilians, and nuclear weapons are ordered to be used instead, that order may be manifestly illegal, leading to war crimes for which actors can be liable if they obey the illegal order. This universal customary international law applies both to state and non-state actors alike.
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