Nuclear obligations : Nuremberg law, nuclear weapons, and protest / by John Robert Burroughs.
Nuclear weapons use and deployment and nonviolent anti-nuclear protest are evaluated in light of Nuremberg and other international law. Use of nuclear weapons would constitute war crimes and crimes against humanity as defined in both the Nuremberg Charter and Allied Control Council Law No. 10 and applied by the International Military Tribunal and other Nuremberg courts. Strategic and atomic bombing during World War II did not set a precedent for use of nuclear weapons. The consequentialist argument for World War II bombing fails and the bombing has also been repudiated by codification of the law of war in Protocol I to the 1949 Geneva Conventions. The legality of deploying nuclear weapons as instruments of geopolitical policy is questionable when measured against the Nuremberg proscription of planning and preparation of aggressive war, war crimes, and crimes against humanity and the United Nations Charter's proscription of aggressive threat of force. While states' practice of deploying the weapons and the arms-control treaties that regulate but do not prohibit mere possession provide some support for legality, those treaties recognize the imperative of preventing nuclear war, and the Nuclear Non-Proliferation Treaty commits nuclear-armed states to good-faith negotiation of nuclear disarmament. Governments thus are obligated not to plan and prepare for nuclear war; in particular, they are obligated not to deploy first-use and first-strike weapons that increase the risk of war. The constraints on use and deployment are supported by the Enlightenment conception of the ideal of peace articulated by Vattel, Kant, and Rawls. The Nuremberg trials and creation of the United Nations may be a turning point in evolving an international order that institutionalizes the ideal of peace. Nonviolent anti-nuclear protest affirms and extends the Nuremberg principle of individual responsibility. Only partially accounted for by the liberal conception of civil disobedience of Rawls, Dworkin, and Habermas, the protest is justified as a means of developing nations' commitment to compliance with international law. When deciding protest cases, courts should not reason in ways that erode the assessment of nuclear weapons policies under international law.
Record last modified: 2018-05-22 11:46:00
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