Why The Doctrine of Nuclear Deterrence Is Morally Offensive

A recent New York Times article entitled "Addressing the Inevitable" addressed the United States government's revival of "fallout analysis," that is, the forensic science of determining the materials used in a nuclear weapon and where those materials were manufactured, all after detonation of the weapon has already occurred. While the thought of a nuclear weapon being detonated anywhere on Earth is horrifying, and determining its origin and detonator are vital to ensuring that the perpetrators be pursued and tried for crimes against humanity, the U.S. government's stated principles for reviving the program are highly troubling and fundamentally flawed.

Instead of having as its primary reason for employing fallout analysis be the criminal pursuit of those detonating the weapon (most likely a terrorist group), the National Security Council states that the fallout analysis will "clarify the options for striking back." The NSC also "hope" that if terrorists know that a bomb can be traced, they will be less likely to use one. Recent events in Libya, North Korea, Iran, and Pakistan have revealed that there is a widespread market for nuclear weapons technology and weaponry, and that figuring out where a bomb was manufactured or where its parts were generated has little to do with determining who detonated it. The NSC's stated positions of retaliation and deterrence are blatantly illegal under international law (if the retaliation were with nuclear weapons or other WMD) and based on a fundamentally flawed theory (deterrence).

The International Court of Justice ruled in the 1996 Nuclear Weapons Advisory Opinion that the "threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict." The only circumstance in which the threat or use of nuclear weapons would be tolerated would be in the case of "extreme self defense," which means if a nuclear weapon is on its way to hit NY --- not if there is a threat of an attack --- not if intelligence says a nation is building up reserves --- only if there is no time to react and do anything else. The ICJ also ruled in its advisory opinion that it is illegal for a state to threaten use of nuclear weapons as a deterrent under international law, except in cases of "extreme self defense." The meaning of self defense is derived from an 1837 dispute between the U.S. and the U.K. and remains the legal precedent in both U.S. and international law. Under this legal precedent, retaliation utilizing nuclear weapons of any sort is illegal due to the ability of the U.S. government to rationally take "other measures" to resolve the confrontation. The theory of self defense articulated by Secretary of State Daniel Webster in the 1837 case emphasized that there must be no time to step back and reassess the situation for self defense to be invoked.

Some argue that the ICJ opinion on nuclear weapons is either merely advisory or not binding in its capacity, but this position could not be further from the truth. ICJ decisions are binding under both international and U.S. domestic law. Articles 92 through 96 of the UN Charter establish the ICJ and its jurisdiction. It is clearly articulated that all parties who are members of the United Nations and have ratified the UN Charter submit themselves to the jurisdiction of the ICJ. It also lays out procedures stating how the General Assembly can request the ICJ to issue an advisory opinion to clarify an ambiguity in international law. By requesting the opinion, the states recognize the ICJ jurisdiction and that the opinion is binding on all parties involved since the ICJ is the judicial organ of the UN and is responsible for clarifying ambiguous aspects of international law. This was one of the main reasons that the U.S. made such a stringent effort to convince the ICJ that it lacked the jurisdiction to hear the nuclear weapons case. As the U.S. is a member of the UN and General Assembly, its government is bound by the decision. In addition, the UN Charter was signed by the president and ratified by the U.S. Senate. This means that it became part of the "supreme law of the land." This only enforces the authoritative nature of the decision due to the fact that the ICJ decision becomes authoritative not only under international law, but under U.S. law as well. The Senate would have to authorize the president to withdraw from the United Nations and decry the UN Charter for the opinion to become merely "advisory." The president and legislature are actually technically violating U.S. constitutional law by not abiding by the ICJ opinion.

The policies of the U.S. and other nuclear states continue to be based on the outdated model of deterrence theory, centered on raising the cost of an adversary's actions to unacceptably high levels through utilizing the threat to deter an unwanted action. By resorting to the possibility of "retaliation," a violation of international law according to the ICJ opinion, in response to a nuclear strike, the U.S. is endangering the world through escalation of the possibility of nuclear combat. The fact that rogue states are not likely to be the targets of U.S. nuclear strikes, unless the U.S. itself becomes an aggressive imperial state, as some would argue has already happened, makes it even harder for the U.S. especially to argue that the policy of deterrence is valid on any operational level. This most damning indictment of deterrence theory remains; attacks are most probable from small groups of individuals not aligned with any state. If the policy of the U.S. is to attack the states from which these groups operate, the government would attack civilians who may or may not support their governments or the militant groups and therefore venture further into the realm of illegality. In addition, small groups of radical fundamentalists are unlikely to be swayed by any threat of retaliation, knowing that in the wake of an attack they can spread to the four corners of the globe to avoid detection.

Deterrence proponents claim that nuclear weapons are not so much instruments of war, but political tools intended to make waging war so costly that war will not occur. One can take a look at the global situation and discover how well that strategy is working, at least in relation to non-nuclear states. The U.S. and other nuclear states simply fight wars utilizing conventional weapons instead of nuclear weapons, and now seek to lift that type of conflict into the nuclear realm by introducing low yield nuclear weapons to the situation. Those states without nuclear weapons have for the last fifty years continued to proliferate and expand nuclear technology, often with the consent of the U.S. government. To date only one nation, South Africa, has willingly given up its nuclear capabilities.

For deterrence to be successful, an enemy has to believe that there is an intention to use nuclear weapons. For that reason, U.S. proponents of deterrence are forced to admit the possibility of use of nuclear weapons, even as they are claiming the weapons and threats are simply a "political tool." There is not simply a threat of use; there is an intention to use if confronted with a certain situation. This intention of use becomes even broader with the introduction of low yield nuclear weapons. The ICJ was quite clear on this topic, stating, "If the use of force itself in a given case is illegal, for whatever reason, to threaten to use such force will likewise be illegal."

This means that the U.S. government policy of targeting civilians and its policy of deterrence are inherently illegal under currently stated international law and therefore completely invalid. In the instance of retaliation, the fact is that the theory is morally absurd. Illegalities cannot be countered by other illegalities. International law in the form of the Geneva Conventions is quite clear about this. Torture is not a permissible response to torture. Mass rape is not acceptable retaliation to mass rape. Since use of nuclear weapons also violates international humanitarian law, retaliatory use of traditional nuclear weapons, as well as low yield nuclear weapons is also outlawed.

The question remains; are we as a species willing to permit global security to rely on a bluff? Especially when one is not realistically dealing with rational state actors, and when the line between conventional war and nuclear war has been blurred by DU munitions and low yield nuclear weapons? If the definition of lawlessness is defined as when might makes right, isn't humanitarian law rendered obsolete when the globe is able to be controlled by a policy that is based on a willingness to destroy one another?

The ICJ stated, "If an envisaged use of weapons would not meet the requirements of humanitarian law, a threat to engage in such use would also be contrary to that law." The Court also noted, "No State - whether or not it defended the policy of deterrence - suggested to the Court that it would be lawful to threaten to use force if the use of force contemplated would be illegal." The U.S., as well as not disputing the unlawfulness of a threat to commit an illegal act, stated to the Court, "If these weapons [nuclear arsenals] could not lawfully be used in individual or collective self-defense under any circumstances, there would be no credible threat of such use in response to aggression and deterrent principles would be futile and useless. In this sense it is impossible to separate the policy of deterrence from the legality of the use of the means of deterrence." Therefore, since the ICJ found that nuclear weapons generally violate international law, the policy of deterrence was also thus declared to be void of value and legality in the international community.

Lawyers Alliance for World Security's Jonathan Granoff states: "The moral position of the nuclear weapons states is essentially that the threat to commit an illegal act - massive destruction of innocent people - is legal because it is so horrible to contemplate that it ensures the peace. Thus the argument is that the threat of committing that which is patently illegal is made legal by its own intrinsic logic." How is this logic valid when states such as Pakistan and North Korea, dangerously unstable or led by fundamentalist ideologues are the adversaries in a nuclear standoff? How is it valid when attempting to deal with terrorist organizations that are not aligned with any state and follow highly ideological religious doctrines? The fact is that nuclear weapons will most likely be utilized by renegade terrorist organizations, or be triggered by accidents, technological failures, or human error. This renders the UN Charter based Article 51 self defense claim and reasonableness standard attached to it that underlies the basic argument for deterrence hardly useful.

It is important that we as global citizens and those who are involved in debating and shaping international law realize that international law and its governing principles are not rigid; they cannot be reduced to a set of black and white rules. The fact that public opinion dictates state and international law, is supposed to transcend the sovereign rule of states and their leaders, and be the law that governs all of humanity, necessarily means that there will be unwritten law, customary law. Philosophers originally conceived of international law as a fluid and changing object, dictated by changes within societal norms, only concrete in its affirmation of those universal and inalienable rights inherent in every society and guaranteed to every human being. Although there is no black and white enumeration of a rule that states that nuclear weapons are illegal, it is quite evident, looking at the principles that lie behind the existing codified law, that nuclear weapons are illegal, even so-called "low yield" nuclear weapons.

International law derives its authority from the fact that the governments of nation-states recognize and acknowledge that there is a morality and ethics that dictates the universal rules governing mankind and relinquish their state sovereignty to the authority of the greater good of humanity. It is when states take self-interested steps that disregard international law, or try to disguise those steps through the cynical manipulation of international law, that international law loses its authority and ceases to be an effective discipline or, some would argue, to have any validity whatsoever. Current events regarding nuclear weapons and pre-emptive war threaten to tear down the very fabric of international law that has taken centuries to build up. If states such as the U.S. continue on the courses they currently plot, we as humanity will end up back where we started, in a might makes right society that places us on level with ordinary animals that neither have the capacity to reason, nor moralize.