The rise to power in the United States of a man many believe to have poor self-control has alerted new generations to the terrifying nature of what Elaine Scarry calls the American ‘thermonuclear monarchy’: the unchecked possibility for the US president to destroy all human civilisation through nuclear war and winter. The United States commands the world’s most powerful nuclear arsenal by some margin.
Following president Trump’s warning on 8 August that he would respond to North Korean threats with ‘fire and fury the likes of which the world has never seen’ (since which the North Korean regime has tested four missiles and its sixth and most powerful nuclear devise yet), headlines like ‘No current law can stop Trump or a future US president from launching nuclear weapons on a whim’ have proliferated through the media.
‘There is no legal means by which the President’s authority to order a nuclear launch is currently checked’, claimed a commentator on Bustle. ‘If President Trump were to give the order to attack, no one can stop it – the military will simply confirm the codes and fire’, argued The Sun newspaper.
There is no doubt that the US president’s freedom to use nuclear weapons is scarily unconstrained. But it is wrong to suggest that there are no laws that constrain the US president’s use of nuclear force. Pre-emptively unleashing ‘fire and fury the likes of which the world has never seen’, after all, would almost certainly constitute a war crime. Both the president himself and the military personnel that executed his order would be committing serious international crimes.
Military commanders and officers are obliged to adhere to international humanitarian law. These laws enshrine the fundamental principles of proportionality and ‘non-combatant immunity’ – it is illegal to target civilians. According to the 1977 Additional Protocol I to the Geneva Conventions of 1949, which is widely considered an expression of customary international law (meaning that it is binding on all states regardless of whether they have ratified the protocol), ‘launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects’ constitutes a war crime (art. 85(3)(b)).
The idea that commanders like the US president are obliged to uphold the law has a long tradition in international relations and law. A relatively more recent development in international jurisprudence, but by now universally accepted among international lawyers, is that even low ranking military personnel, and certainly officers, may be held individually responsible for their actions. All military personnel bear a legal duty to disobey orders if they believe them to be illegal.
The norm of universal individual responsibility was conceived in response to the attempt by Nazis on trial for war crimes and crimes against humanity at hiding behind what has since been called the ‘Nuremberg defence’: ‘I was just following orders’. The Nuremberg tribunals concluded that ‘superior orders’ did not absolve subordinates of responsibility. The tribunal for the former Yugoslavia has found individuals of all ranks responsible for international crimes.
The above is not to say that the institutional constraints on the American thermonuclear monarchy are in any way comprehensive or effective, or that there would be plausible ways for the international community of enforcing US violations of international humanitarian law and intentional criminal law. But to suggest that there is no law constraining the president and his subordinates, is mistaken.
Almost any conceivable nuclear strike would have catastrophic humanitarian consequences. On 7 July 2017, a majority of the world’s states adopted a UN Treaty Prohibiting Nuclear Weapons, declaring the possession and use of nuclear weapons categorically illegal.
Any nuclear missileer must consider whether her actions would be lawful. Launching ‘fire and fury the likes of which the world has never seen’ – to wit, a calamity worse than the nuclear bombings of Hiroshima and Nagasaki, the Blitz, the battle of Carthage, and the Magdeburg Wedding – would be a war crime. Anyone asked to execute such an order would have to say ‘no’.
Photo credit: Gage Skidmore