The Criminality of Nuclear Deterrence

By Francis A. Boyle | Go to book overview

CHAPTER THREE
THE RELEVANCE OF
INTERNATIONAL LAW
TO THE PARADOX OF
NUCLEAR DETERRENCE

Quite recently a substantial number of articles have been written on the subject of the legality or illegality of using nuclear weapons under international law. 1 Certainly the main impetus to this expanding body of literature has been the cavalier nuclear war-fighting rhetoric propounded by the Reagan administration since its ascent to power in the aftermath of the 1980 election. 2 Understandably, therefore, many of these articles have taken the counteractive position that the use of nuclear weapons is completely prohibited by international law, and consequently, that there exist serious legal problems related even to the threat to use nuclear weapons under a variety of circumstances. 3 In other words, these writings have either directly or indirectly called into question the very legitimacy of America's strategic nuclear weapons deterrence policy, though few if any of these articles have ventured into a systematic examination of the so-called “paradox of deterrence” from an international law perspective.

Namely, if article 2(4) of the United Nations Charter prohibits both the threat and use of force except in cases of legitimate self-defense under ar- ticle 51, and if it is also clear that the actual use of nuclear weapons would grossly violate the international laws of humanitarian armed conflict under most conceivable circumstances, how can the United States government nevertheless lawfully threaten to use nuclear weapons in accordance with any theory of nuclear deterrence without violating international law? Further- more, if the Nuremberg Principles absolutely proscribe crimes against peace, crimes against humanity and war crimes, 4 how can the United States gov- ernment nevertheless lawfully establish a threat to commit such heinous offenses as the very basis of its theory for nuclear deterrence? Finally, does not the very articulation of these extremely serious reservations about the overall legality of U.S. nuclear deterrence policy weaken the credibility of the deterrent itself and therefore render the risks of war with the Soviet Union at

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