ATOMIC BOMBINGS AT 75: The Illegality of Nuclear Weapons

The mere possession of nuclear weapons violates the Nuremberg Principles (decreed a day before Nagasaki) and other international laws, argues international law professor Francis Boyle.

By Francis Boyle

The human race stands on the verge of nuclear self-extinction as a species, and with it will die most, if not all, forms of intelligent life on the planet earth. Any attempt to dispel the ideology of nuclearism and its attendant myth propounding the legality of nuclear weapons and nuclear deterrence must directly come to grips with the fact that the nuclear age was conceived in the original sins of Hiroshima and Nagasaki on August 6 and 9, 1945.

The atomic bombings of Hiroshima and Nagasaki constituted crimes against humanity and war crimes as defined by the Nuremberg Charter of August 8, 1945 [promulgated two days after Hiroshima and a day before Nagasaki], and violated several basic provisions of the Regulations annexed to Hague Convention No. 4 Respecting the Laws and Customs of War on Land (1907), the rules of customary international law set forth in the Draft Hague Rules of Air Warfare (1923), and the United States War Department Field Manual 27-10, Rules of Land Warfare (1940).

Hiroshima (l) and Nagaski (r) (George Caron and Charles Levy)

According to this Field Manual and the Nuremberg Principles, all civilian government officials and military officers who ordered or knowingly participated in the atomic bombings of Hiroshima and Nagasaki could have been lawfully punished as war criminals.

The start of any progress toward resolving humankind’s nuclear predicament must come from the realization that nuclear weapons have never been legitimate instruments of state policy, but rather have always constituted illegitimate instrumentalities of internationally lawless and criminal behavior.

The Use of Nuclear Weapons

The use of nuclear weapons in combat was, and still is, absolutely prohibited under all circumstances by both conventional and customary international law: e.g., the Nuremberg Principles, the Hague Regulations of 1907, the International Convention on the Prevention and Punishment of the Crime of Genocide of 1948, the Four Geneva Conventions of 1949 and their Additional Protocol I of 1977, etc.

In addition, the use of nuclear weapons would also specifically violate several fundamental resolutions of the United Nations General Assembly that have repeatedly condemned the use of nuclear weapons as an international crime.

Consequently, according to the Nuremberg Judgment, soldiers would be obliged to disobey egregiously illegal orders with respect to launching and waging a nuclear war.

Second, all government officials and military officers who might nevertheless launch or wage a nuclear war would be personally responsible for the commission of Nuremberg crimes against peace, crimes against humanity, war crimes, grave breaches of the Geneva Conventions and Protocol 1, and genocide, among other international crimes.

Third, such individuals would not be entitled to the defenses of superior orders, act of state, tu quoque, self-defense, presidential authority, etc.

Fourth, such individuals could thus be quite legitimately and most severely punished as war criminals, up to and including the imposition of the death penalty, without limitation of time.

The Threat to Use Nuclear Weapons

Simulated nuclear weapons load onto a C-17 Globemaster III at McChord Air Force Base in Tacoma, WA, Feb. 2009. (U.S. Army photo)

Article 2(4) of the United Nations Charter of 1945 prohibits both the threat and the use of force except in cases of legitimate self-defense as recognized by article 51 thereof. But although the requirement of legitimate self-defense is a necessary precondition for the legality of any threat or use of force, it is certainly not sufficient.

For the legality of any threat or use of force must also take into account the customary and conventional international laws of humanitarian armed conflict.

Thereunder, the threat to use nuclear weapons (i.e., nuclear deterrence/terrorism) constitutes ongoing international criminal activity: namely, planning, preparation, solicitation and conspiracy to commit Nuremberg crimes against peace, crimes against humanity, war crimes, genocide, as well as grave breaches of the Four Geneva Conventions of 1949, Additional Protocol I of 1977, the Hague Regulations of 1907, and the International Convention on the Prevention and Punishment of the Crime of Genocide of 1948, inter alia. These are the so-called inchoate crimes that under the Nuremberg Principles constitute international crimes in their own right.

The conclusion is inexorable that the design, research, testing, production, manufacture, fabrication, transportation, deployment, installation, maintenance, storing, stockpiling, sale, and purchase as well as the threat to use nuclear weapons together with all their essential accouterments are criminal under well-recognized principles of international law.

Thus, those government decision-makers in all the nuclear weapons states with command responsibility for their nuclear weapons establishments are today subject to personal criminal responsibility under the Nuremberg Principles for this criminal practice of nuclear deterrence/terrorism that they have daily inflicted upon all states and peoples of the international community.

Nevada test Site, Aug. 7, 1957. Unmanned Navy Goodyear ZSG-3 Blimp with Stokes cloud. Dirigible was in free flight beyond five miles from ground zero when collapsed by shock wave from the blast.  (U.S. Energy Dept.)

Here I wish to single out four components of the threat to use nuclear weapons that are especially reprehensible from an international law perspective: counter-ethnic targeting; counter-city targeting; first-strike weapons and contingency plans; and the first-use of nuclear weapons even to repel a conventional attack.

The Criminality of Nuclear Weapons And Nuclear Deterrence

As can be determined in part from the preceding analysis, today’s nuclear weapons establishments as well as the entire system of nuclear deterrence/terrorism currently practiced by all the nuclear weapon states are criminal — not simply illegal, not simply immoral, but criminal under well established principles of international law.

This simple idea of the criminality of nuclear weapons can be utilized to pierce through the ideology of nuclearism to which many citizens in the nuclear weapons states have succumbed. It is with this simple idea of the criminality of nuclear weapons that concerned citizens can proceed to comprehend the inherent illegitimacy and fundamental lawlessness of the policies that their governments pursue in their names with respect to the maintenance and further development of nuclear weapons systems.

The International Criminal Conspiracy  of Nuclear Deterrence

A balloon burst fired at the Nevada Test Site in 1958. (U.S. Government)

Humankind must abolish nuclear weapons before nuclear weapons abolish humankind. Nonetheless, a small number of governments in the world community continue to maintain nuclear weapons systems despite the rules of international criminal law to the contrary.

This has led some international lawyers to argue quite tautologically and disingenuously that since there exist a few nuclear weapons states in the world community, therefore nuclear weapons must somehow not be criminal because otherwise these few states would not possess nuclear weapons systems.

In other words, to use lawyers’ parlance, this minority state practice of nuclear deterrence/terrorism practiced by the great powers somehow negates the existence of a world opinio juris (i.e., sense of legal obligation) as to the criminality of nuclear weapons.

There is a very simple response to that specious argument: Since when has a small gang of criminals — in this case, the nuclear weapons states — been able to determine what is legal or illegal for the rest of the community by means of their own criminal behavior?

What right do these nuclear weapons states have to argue that by means of their own criminal behavior they have ipso facto made criminal acts legitimate? No civilized nation state would permit a small gang of criminal conspirators to pervert its domestic legal order in this manner.

Moreover, both the Nuremberg Tribunal and the Tokyo Tribunal made it quite clear that a conspiratorial band of criminal states likewise has no right to opt out of the international legal order by means of invoking their own criminal behavior as the least common denominator of international deportment. Ex iniuria ius non oritur is a peremptory norm of customary international law. Right cannot grow out of injustice.

To the contrary, the entire human race has been victimized by an international conspiracy of ongoing criminal activity carried out by the nuclear weapons states under the doctrine known as “nuclear deterrence,” which is really a euphemism for “nuclear terrorism.”

This international criminal conspiracy of nuclear deterrence/terrorism currently practiced by the nuclear weapons states is no different from any other conspiracy by a criminal gang or band. They are the outlaws. So it is up to the rest of the international community to repress and dissolve this international criminal conspiracy as soon as possible.

The Human Right to Anti-Nuclear Civil Resistance

Bertrand Russell & his wife Edith Russell lead anti-nuclear march by the Committee of 100 in London on Sat 18 Feb 1961. (Wikimedia Commons)

In light of the fact that nuclear weapons systems are prohibited, illegal, and criminal under all circumstances and for any reason, every person around the world possesses a basic human right to be free from this criminal practice of nuclear deterrence/terrorism and its concomitant specter of nuclear extinction.

Thus, all human beings possess the basic right under international law to engage in non-violent civil resistance activities for the purpose of preventing, impeding, or terminating the ongoing commission of these international crimes.

Every citizen of the world community has both the right and the duty to oppose the existence of nuclear weapons systems by whatever non-violent means are at his or her disposal. Otherwise, the human race will suffer the same fate as the dinosaurs, and the planet earth will become a radioactive wasteland. The time for preventive action is now.

Francis Boyle is a professor of international law at the University of Illinois Urbana-Champaign. Among his many books is “Destroying World Order.”

The views expressed are solely those of the author and may or may not reflect those of Consortium News.

Please Contribute to Consortium News on its 25th Anniversary 

Donate securely with PayPal here

Or securely by credit card or check by clicking the red button:


6 comments for “ATOMIC BOMBINGS AT 75: The Illegality of Nuclear Weapons

  1. Moi
    August 6, 2020 at 02:48

    “The human race stands on the verge of nuclear self-extinction as a species, and with it will die most, if not all, forms of intelligent life on the planet earth.” (Prof. Francis Boyle)

    It’s not just “nuclear self-extinction” the species is facing. I wonder how many solar panels and wind turbines could be purchased for the same price as a single nuclear weapon.

  2. Robert Landbeck
    August 5, 2020 at 15:22

    It remains implausible to even imagine, that the genie of nuclear weapons can be put back in its bottle, by any existing politcal process, democratic or not! And to continue thinking otherwise is just chasing after wind. What constrains the highest of human aspirations is rarely imagined but if the catalyst with the necessary authority to realize the dream were ever revealed, who would care enough to believe with sufficient courage and conviction to act? Unfortunately the world has usually preferred the soft, the easy and more convenient ways of intellectual vanity, political correctness and spiritual confectionery than the honesty and courage to confront human nature itself! Start here: see:

  3. August 4, 2020 at 19:45

    Bowman: You know of course though he’s right about the 9000 series having a perfect operational record. They do.
    Poole: Unfortunately that sounds a little like famous last words.

  4. Richard Lemieux
    August 4, 2020 at 16:52

    Very good points on the illegality of all programs related to the design, making, transportation, storage and use of nuclear weapons. I would include chemical and biological weapons as well. I would add cruise missiles to the lot since those missiles threaten mostly civilian populated areas. Then what is the next step that will take us closer to a world without those weapons? The longer it takes before we come up to a complete ban, the greater is the chance those weapons will become available to small countries and then to private organizations. Unfortunately, without a minimum amount of civility in the running of state affairs the law of the jungle is going to prevail. As civility disappears from our institutions, the few survivors among us will end up in a real jungle. So if we just started restoring civility to our world, law would be meaningful again and we could get rid of the nuclear weapons … until an asteroid threatens the Earth in which case those weapons might find some use.

  5. Randolph Garrison
    August 4, 2020 at 15:06

    This is the first time I have ever read of these Nurcular Weapons Rules.

    • robert e williamson jr
      August 4, 2020 at 22:38

      As I have written before here at CN and other places the abuse of authority by members of the US Atomic Energy Commission was criminal. I have a good understanding of the history and development of , especially, the first Nuclear Weapons the US produced. I have even a better understanding of exactly how Israel acquired nuclear weapons also.

      It must be obvious to anyone who cares to examine the history of nuclear weapons and the history of nuclear power reactors that the Unites States having a monopoly of all things nuclear in the western world was a terrible idea.

      Nuclear power reactors are specialized reactors used to produce heat. Heat used to boil water. The application of this technology by the Navy Bureau of Ships lead to the development of submarines that could stay submerged for months. The Navy is especially good at spending money these days, billions and billions boiling water needed to power their fleets.

      Hymen Rickover desperately needed this technology and Hymen knew how to get things done.

      “The Rickover Affect”, How One Man Made A Difference by Theodore Rockwell printed by the naval institute press, Annapolis,Maryland 1992.

      Rickover brags about having the ability to wear “two hats” while he worked to achieve a nuclear navy. One hat was is Navy hat and when he needed answers from the USAEC he wore that hat, when he achieved the answers he needed he wore his USAEC hat. This practice served him very well .

      I recommend everyone ever remotely interested in what impact he had on world peace or the lack there of read this book.

      Rickover left no doubt, he was an amazing organizer, teacher and developer of concepts that revolutionized the study of applied nuclear physics. Including creating a zirconium industry that was vitally needed to support the naval reactors program.

      But that said even Hymen was human. He met Zalman Mordecai Shapiro early in the pursuit of developing the nuclear fuel he needed for his reactors. Apparently as brilliant engineer and chemist he worked for Westinghouse Electric and the Bettis Atomic Power Laboratory.

      He ran into problems because of his involvement with Zionism, vertain shady Israelis and deplorable health physics and house keeping habits at the NUMEC facility including large amounts of missing High Enriched Uranium-235. Habits that even Rickover noticed. Nothing was done.

      Cut to the chase, today it is widely believed that Shapiro diverted hundreds of pound of Special Nuclear Materials , i.e. mostly highly enriched U235 and some plutonium from USAEC contracts, explaing the material was lost due to production inefficiencies. A fire at the plant destroyed records, CIA stymied FBI investigations and the case never pursued. WHY?

      I believe that it would have been virtually impossible for Shapiro to accomplish this with out help from individuals inside the U.S. Atomic Energy Commission.

      SEE: nsarchive.gwu/briefing-book/nuclear-vault/2016-11-02/numec-affair-did-highly-enriched-uranium-us-aid-israels-weapons-program

      SEE: Grant F Smith’s, DIVERT 2012

      I would encourage those interested to examine closely the demise of Robert Oppenheimers career.

      I believe Oppenheimer was forced out of USAEC by Lewis Strauss one of his main detractors and Edward Teller was another, which history tells us was true. I also believe he was forced out because if he had learned about the plans to divert SNM special nuclear materials from the NUMEC corp site to Israel he would have went public with the info.

      By black balling Oppie the message was sent to anyone else who dared intervene .

      I also happen to believe that both the deaths of JFK and RFK more than remotely connected to the diversion of these materials from the USAEC. Especially in light of evidence that many inside CIA were concerned about a very sketchy Bay if Pigs invasion plan.

      As long as our government fails us by not living up to it’s responsibility to protect Americans and with holds the truth about what happened to the NUMEC U-235 and what really happened in the Kennedy deaths this is my story.

      Note I’m not withholding any info here, simply asking why these things were ALLOWED to happen and pleading for answers. Answers that for some reason the government , CIA, NSA and the court refuse to provide.

      We all should be able to clearly see where this approach has gotten us.

Comments are closed.