Nuclear Weapons and International Law: Existential Risks of Nuclear War and Deterrence through a Legal Lens: Volume 1 and Volume 2: Charles J. Moxley Jr.: Hamilton Books

Description

This two-volume book provides a comprehensive analysis of the lawfulness of the use of nuclear weapons, based on existing international law, established facts as to nuclear weapons and their effects, and nuclear weapons policies and plans of the United States. Based on detailed analysis of the facts and law, Professor Moxley shows that the United States’ arguments that uses of nuclear weapons, including low-yield nuclear weapons, could be lawful do not withstand analysis.

Moxley opens by examining established rules of international law governing the use of nuclear weapons, first analyzing this body of law based on the United States’ own statements of the matter and then extending the analysis to include requirements of international law that the United States overlooks in its assessment of the lawfulness of potential nuclear weapons uses. He then develops in detail the known facts as to nuclear weapons and their consequences and U.S. policies and plans concerning such matters. He describes the risks of deterrence and the existential nature of the effects of nuclear war on human life and civilization.

He proceeds to pull it all together, applying the law to the facts and demonstrating that known nuclear weapons effects cannot comply with such legal requirements as those of distinction, proportionality, necessity, precaution, the corollary requirement of controllability, and the law of reprisal. Moxley shows that, when the United States goes to apply international law to potential nuclear weapons uses, it distorts the law as it has itself articulated it, overlooks law in such areas as causation, risk analysis, mens rea, and per se rules, and disregards known risks as to nuclear weapons effects, including radioactive fallout, nuclear winter, electromagnetic pulses, and potential escalation. He then shows that the policy of deterrence is unlawful because the use of such weapons would be unlawful.

Moxley urges that the United States and other nuclear weapons States take heed of the requirements of international law as to nuclear weapons threat and use. He argues that law can be a positive force in society’s addressing existential risks posed by nuclear weapons and the policy of nuclear deterrence.

Volume I

Foreword by William J. Perry
Foreword by John D. Feerick
Foreword by Claire Finkelstein
Foreword to First Edition by Robert S. McNamara
Foreword to First Edition by David W. Leebron
Foreword to First Edition by Kosta Tsipis
Preface
Acknowledgements
Introduction
PART I: The Law
Chapter 1: The Law as Seen by the United States
Sources of International Law
Summary as to Applicable Sources
Nature and Purpose of the Law of Armed Conflict
Political Nature of the Law of Armed Conflict
Binding Nature of International Law
Main Corpus of the Law of Armed Conflict
Jus ad Bellum and Jus in Bello
General Rules of the Law of Armed Conflict
Principle of Proportionality
Principle of Necessity
Principle of Moderation
Principle of Distinction
Rule of Civilian Immunity
Limits on Target Area Bombing
Principle of Neutrality
Prohibition of Chemical Weapons
Prohibition of Bacteriological/Biological Agents
Principle of Environmental Protection
Protection of Medical Facilities
Prohibition of Genocide
The Martens Clause
Principle of Analogy
Principle of Humanity
Principle of Reciprocity
Reprisals
Mental State
Crimes Under International Law
Prohibitive Nature of Law of Armed Conflict
Bases for a Per Se Rule
Conclusion
Chapter 2: The Law as Applied by the United States
Operational Planning
Prerequisites for a Per Se Rule
General Applicability of the Rules of International Law to Nuclear Weapons
International Agreements on Nuclear Weapons
International Agreements on Other Weapons
Sources of International Law
The Martens Clause
Prohibition of Causing Unnecessary Suffering
Controllability of Effects of Nuclear Weapons
Low-Yield Nuclear Weapons
Significance of Probabilities as to Potential Nuclear Counterstrikes and Escalation
Principle of Proportionality
Time Frame for Determining Lawfulness
Effects of Nuclear Versus Conventional Weapons
Principle of Distrinction/Civilian Immunity
Crimes against Humanity; Genocide
Prohibition of Poisons
Poison Gas Analogy
Principle of Neutrality
Environmental Security
International Agreements on Human Rights
The Resolutions Argument
Reprisals
Nuclear Deterrence
Chapter 3: The ICJ’s Nuclear Weapons Advisory Decision
The Issue Presented
The Court’s Conclusion
Unique Characteristics of Nuclear Weapons
Finding of Insufficient Facts
Apparent Unlawfulness of High-Yield Nuclear Weapons
Nuclear Weapons for Self-Defense
U.N. Charter Provisions
The Court’s Refusal to Engage in Risk Analysis
Identification of Risk Factors
The Lotus/Sovereignty Issue
Pattern of Specific Instruments
Covenant on Civil and Political Rights
Genocide Convention
Protection of the Environment
Poisonous Weapons
Agreed Limitations on Use of Nuclear Weapons
Practice of Non-Use
Nuclear Deterrence
U.N. General Assembly ResolutionsCondemning Nuclear Weapons
International Humanitarian Law
Jus Cogens
Principle of Distinction/Civilian Immunity
Principle of Necessity
Principle of Neutrality
Requirements for a Per Se Rule to Arise
Legal Limitations on the Lawfulness of Reprisals
Whether the Court Found a Non Liquet
Legal Status in the Absence of Applicable Law
Purposes Underlying the Law of Armed Conflict
Sources of International Law
Mental State
Significance of a Finding of Illegality
Duty to Negotiate Disarmament Under Article VI of the NPT
Characterization of the Court’s Decision
PART II: Additional Applicable Principles of Law
Chapter 4: Prerequisites for a Per Se Rule
U.S. Law
Generally Accepted Principles of Law
Chapter 5: Interpreting International Law According to Its Purpose
Chapter 6: The Legal Significance of Probabilities as to the Potential Effects of the Use of Nuclear Weapons
U.S. Law
Generally Accepted Principles of Law
Chapter 7: Probability Analysis Under Generally Accepted Principles of Criminal Law—Rules as to Recklessness and Foreseeability
Chapter 8: Recklessness under the Law of Armed Conflict
War Crimes Liability of States
Criminal Liability of Individuals
Willfulness as Including Recklessness
Recognition by International Criminal Tribunals of Recklessness as a Sufficient Mens Rea forSome War Crimes
Liability for Aiding and Abetting and Other Types of Joint Responsibility
Commander Liability
Potential Criminal Liability of Corporations
Chapter 9: Limitations on the Extent to Which Innocent Third-Parties May be Endangered in the Exercise of Otherwise Lawful Uses of Force
Chapter 10: The Lesser Evil/Necessity Principle
Chapter 11: Legal Effect of Having Caused One’s Own Need to Resort to Extreme Force
PART III: Additional Legal History and Principles
Chapter 12: The Evolution of International Law as to Landmines
Chapter 13: Inapplicability of the Principle of Double Effect
PART IV: Risk Factors of the Nuclear Weapons Regime
Chapter 14: Risk Factors as to the Weapons Themselves
Delivery Vehicles and Warheads
Categories of Nuclear Weapons
Radiation Effects of Nuclear Weapons
Effects of Nuclear Weapons at Various Yields
Climate Effects of Nuclear Exchanges
Levels at Which Nuclear Weapons Would Likely Be Used in a Nuclear War
Medical Care in the Aftermath of a Nuclear Strike
Potential Effects of Electromagnetic Pulses
Effects of Nuclear Weapons Testing
Human Experience of Effects of Nuclear Weapons Testing
Chernobyl
Chapter 15: Risk Factors Inherent in U.S. Declaratory Policy as to Nuclear Weapons
The Military Principle of Concentration of Force
Extended Deterrence
The Logic of Deterrence as Hinging Upon the Irrational
Chapter 16: Risk Factors Inherent in U.S. Operational Capabilities and Planning
Chapter 17: U.S. Nuclear Force Structure and Related Risk Factors
Overall Nuclear Arsenal
Strategic Nuclear Arsenal
Tactical Nuclear Arsenal
Emphasis on Strategic Nuclear Weapons
Changes in Inventory
Changes in Inventory Since 2002
Misleading Nature of Reductions in Numbers

Volume II

Chapter 18: Times the United States Threatened or Considered the Use of Nuclear Weapons
Chapter 19: Probabilities as to Accuracy of U.S. Targeting of Nuclear Weapons
Chapter 20: Risk Factors Inherent in Nuclear Deterrence and Operational Readiness
Reality of the Risks
Risks of Precipitating Nuclear War
Fostering of an Arms Race
Fostering of Nuclear Proliferation
Risks of Terrorism
Risks of Human and Equipment Failure
Risks to Command and Control
Risks of Testing
Risks of Production, Storage and Disposal
Financial Costs
Jeopardy to Rule of Law
Catastrophe Theory
Risks of Unstable, Impulsive, Incompetent or Ill-intentioned Leaders of Nuclear Weapons States
Conclusion
Chapter 21: Nuclear Weapons States and Concerns as to their Command and Control
Chapter 22: Recognition that the Use of Nuclear Weapons Would Serve
No Military Purpose
Statements by U.S. Political Leadership
Statements by U.S. Military Leadership
Statements by Foreign Leaders
Statements by Defense Experts
Chapter 23: Likelihood Even a Limited Use of Nuclear Weapons Would Escalate into Widescale Nuclear War––Inconsistency of this Reality with the U.S. Nuclear War Plan
Statements by U.S. Civilian Leaders
Statements by U.S. Military Leaders
Statements by Policy Experts
Russian Perspective
Chapter 24: Risks of Nuclear Weapons in the Contemporary World
Terrorism
The United States’ Continued Legitimization of Nuclear Weapons
U.S. Nuclear Hegemony
Risks of High Alert Levels
Launch on Warning
Modernization Programs
Irony of the United States’ Continued Legitimization of Nuclear Weapons
Missile Defense
Rising Tensions Between the U.S. and Russia
Stalemate as to Arms Control
Cyber Security Risks
Effects of Nuclear Weapons Worse than Previously Thought
Chapter 25: Risk that Even a Limited Use of Nuclear Weapons Would Precipitate Use of Chemical or Biological Weapons in Retaliation, and Vice Versa
Interrelatedness of Chemical, Biological and Nuclear Weapons Risks
Risks of Chemical and Biological Weapons
Legal Regime as to Chemical and Biological Weapons
Destructiveness of Chemical and Biological Weapons
Chemical and Biological Weapons States
Proliferation Risks
Chemical and Biological Weapons as a Major Security Threat
Chemical and Biological Weapons in the World’s Hot Spots
Nuclear Deterrence as Directed Against Chemical and Biological Weapons
Prior Use of Chemical Weapons as a Risk Factor
Significance of the United States’ Joining of the Chemical and Biological Weapons Conventions
Chapter 26: The High Tech Conventional Weapons Alternative
Evolution of Conventional Weapons
Conventional Prompt Global Strike and Other Potentially Highly Accurate Long-Range Conventional Weapons Programs in Development
Hardened and Deeply Buried Targets
The Potential Replacement of Nuclear Deterrence with Conventional Deterrence
PART V: Application of the Law to the Facts
Chapter 27: Unlawfulness of Threat and Use of Nuclear Weapons under Rules of the Law of Armed Conflict As Articulated by the United StatesThe Law of Armed Conflict as Including the Rules of Customary International LawUncontrollability of the Effects of Nuclear Weapons as Connoting the Unlawfulness of the Use of Such Weapons under the Law of Armed ConflictU.S. Formal Position as to the Controllability of the Effects of Nuclear Weapons
U.S. Acknowledgment of the Uncontrollability of Nuclear Weapons EffectsThe Fact of the Uncontrollability of Nuclear Weapons Effects Further Bases of UnlawfulnessUnlawfulness under the Rule of Distinction
Unlawfulness under the Rule of ProportionalityUnlawfulness under the Rule of Necessity
Unlawfulness under the Law of Reprisal
Self-Defense as Subject to International LawWar CrimesUnlawfulness of the U.S. Policy of Nuclear DeterrenceConclusion
Chapter 28: Unlawfulness of Nuclear Weapons Threat and Use under Additional Rules of the Law of Armed Conflict
International Law of Risk Creation
International Law as to Causation
Mens Rea Requirements for War Crimes Liability
Crimes against Peace, Crimes against Humanity, and Genocide
Foreseeable Nuclear Counter-Attacks and Escalation
Rule of Neutrality
Rule of Precaution
Delayed and Inter-Generational Injury
Policy of Deterrence as Threatening Use of High-Yield Nuclear Weapons
Preemptive Use of Nuclear Weapons
The Martens Clause
The Invalidity of the “As Such” Rule
The Federalist Papers and Nuclear Weapons
Denial and the Nature of Evil
Conventional Weapons Alternative
Conventional Weapons and the Rule of Necessity
Superfluous Injury
Sufficient Inventories of Conventional Weapons
Use of Low-Yield Nuclear Weapons
Threatening Civilian Attacks
Nuclear Weapons Advisory Opinion
Legal Responsibility for Inadequate Control of Nuclear Weapons
Per Se Unlawfulness
Recognition of Extreme Risks of Nuclear Weapons
Need for Independent Counsel
Failure to Acknowledge the Facts and Follow the Law
Failure to Comply with the Nuclear Non-Proliferation Treaty
Treaty on the Prohibition of Nuclear Weapons
Human Rights Law
Conclusion
Index
Author Biographical Sketch

Product details

Published	15 May 2024
Format	Ebook (Epub & Mobi)
Edition	2nd
Extent	1148
ISBN	9780761873556
Imprint	Hamilton Books
Illustrations	8 tables
Publisher	Bloomsbury Publishing

As Chief Legal Officer of Lehman Brothers during the financial crisis and General Counsel of AIG in the aftermath, I’ve seen how elemental forces can lurch out of control––and how, with creative legal approaches and wise and innovative policy, risks can be steered towards more positive outcomes. Charles Moxley, in this monumental tome, addresses an even more momentous matrix of risk and offers a potential way out–––the harnessing of law to help lead the world towards defense policies that restore some measure of limit to man’s destructiveness in war, recognizing the unlawfulness as well as folly of nuclear weapons.

The billions going into nuclear weapons annually, the heightened rhetoric trivializing the potential use of these weapons, the wishful thinking that nuclear weapons uses could be limited to low-yield tactical weapons in remote areas, the proliferating numbers of these weapons, the hair trigger alert levels of our and Russia’s weapons, the existential potential repercussions, the repetition of broadscale heads-in-the-sand, unable to see the obvious, closed eye optimism–––such systemic failures of restraint and cognition that Moxley so painstakingly details hearken back to systematic failures on a societal scale that led to the financial crisis. We ignore warning signs at our peril.

In securities parlance, a “fat finger” means a mistaken pushing of a button by a trader, resulting in a huge unintended trade. In the military’s command and control system, a fat figure could have repercussions far beyond the financial and be irreversible, yet, with the United States’ and other states’ policies of deterrence and high alert levels, such an unintended use and potential nuclear responses and escalation are only moments away. Moxley’s message of the need to restructure our defense policies in recognition of these risks compels our attention.

Moxley’s central point––that law offers us an important way to address risks of nuclear weapons––is a fundamental one. Law is more than a body of rules; it is the glue that holds a society together, the norms that are shared, in effect the codification of the culture. Moxley’s reminder is timely as to its importance to nuclear weapons and our defense policies.

Thomas A. Russo, General Counsel, AIG, 2010-2016; Chief Legal Officer, Lehman Brothers, 1993-2008
Charles Moxley’s Nuclear Weapons and International Law combines rigorous legal scholarship with the acumen of a seasoned practitioner, offering an authoritative critique of nuclear deterrence and a persuasive, urgent argument for the disarmament imperative under international law.

Hon. Mary Smith, President, American Bar Association 2023-2024
Charles Moxley is a brilliant lawyer and his treatise on nuclear weapons and international law could not be more important and timely. His distinguished career as a practitioner, professor, and arbitrator makes him uniquely well qualified to analyze complex and sensitive factual and legal issues in a manner that is both objective and fair minded. He is a well-known and respected authority in the legal world. I have the highest regard for Moxley’s scholarship and his insightful and critical thinking.

Hon. Shira A. Scheindlin, United States District Judge (Ret.), Southern District of New York
No greater threat to human life and wellbeing exists than nuclear weapons. In this compelling and comprehensive study of existential risks posed by nuclear weapons and requirements of international law, Charles Moxley gives us reason to hope that, as with the abolition of slavery, advancement of rights of women, and so many other areas, law can help provide a way forward towards genuine human security.

Jonathan Granoff, President, Global Security Institute, Senior Advisor and U.N. Representative, World Summits of Nobel Peace Laureates
Charles Moxley has an extraordinary legal mind, able to grasp and synthesize the most complex of factual and legal situations. A leading arbitrator and mediator of complex high-stakes disputes in New York, Moxley is fair-minded and objective. His years-long effort to pull together the facts and law as to risks posed by nuclear weapons commands the attention of everyone who believes in the capacity of law to be a catalyst for overcoming threats to human life and civilization.

Hon. Ariel E. Belen, Justice, New York Supreme Court (Ret.)
Charles Moxley's thesis that nuclear weapons violate international law may be this century's most important advance towards a peaceable world order. His book should make you worry, make you think and above all, impel you to make his case against nuclear weapons your case.

Jerome J. Shestack, Past President, American Bar Association