In a sign of the anxiety sparked by Trump's rhetoric about North Korea, on November 14 the Senate Foreign Relations Committee held a hearing on presidential authority to use nuclear weapons. In an unusual development, former Commander of Strategic Command Robert Kehler testified that if a presidential order to use nuclear weapons is illegal, military commanders have a duty to refuse it. He identified the relevant legal requirements as necessity, distinction between civilians and military targets, and proportionality. To begin with at least, he conveyed, the process would involve discussion of options.

 

This is an unprecedented opening in the US context for a thorough examination of the law applying to use of nuclear weapons. As John Burroughs explained in an opinion piece for The Hill, due to the indiscriminate and uncontrollable effects of nuclear explosions, nuclear weapons cannot be used in compliance with the requirements Kehler identified. Burroughs further examined the question ( video, text) at a timely Harvard conference on presidential first use.

 

Despite Kehler's testimony, the hearing made clear that there are no ironclad, reliable limits on the president's power to order use of nuclear weapons. As Senator Ed Markey observed, we cannot rely on civilian and military officials to delay or block the president from starting a nuclear war.

 

Markey and Representative Ted Lieu have proposed a bill requiring Congressional approval for use of nuclear weapons unless the United States or its allies are under nuclear attack. Another bill tabled by Representative Adam Smith would simply declare that the policy of the United States is not to use nuclear weapons first. On the larger question of going to war, other bills would bar spending on military action against North Korea not authorized by Congress, unless North Korea suddenly attacked ( Markey/Rep. Thomas Massie) or posed an imminent threat (Senator Chris Murphy). All of these bills deserve support, with the ones sponsored by Smith and by Markey/Massie perhaps best framed.

On December 10, the International Campaign to Abolish Nuclear Weapons received the Nobel Peace Prize in Oslo. As IALANA has stated, ICAN well deserves the prize for its creative and determined work to highlight the humanitarian consequences of

Berit Reiss-Andersen, Chair of the Norwegian Nobel Committee, Oslo, December 10. Photo: Al Jazeera.

nuclear explosions and to catalyze the negotiation of the Treaty on the Prohibition of Nuclear Weapons. See also this PBS NewsHour interview with John Burroughs on the occasion of the announcement of the prize.

ICAN has 468 partner organizations in 101 countries. LCNP and IALANA are happy to be among them, and also to have contributed to the negotiations, especially regarding existing international law requiring non-threat, non-use and elimination of nuclear weapons. Given that the nuclear-armed states and most of their allies are not expected to join the treaty, at least in the near term, the treaty's reinforcement of existing law is an important contribution. The treaty will enter into force for its members when 50 states have ratified it, probably in the next one to three years. For more about the treaty, see this IALANA assessment and an overview by our IALANA colleague Daniel Rietiker in the Harvard International Law Journal.

 

ICAN Executive Director Beatrice Fihn and Hiroshima survivor Setsuko Thurlow made powerful speeches at the prize ceremony, well worth reading. Fihn said that " blind acceptance" of nuclear weapons has been a " great mistake." She went on: " Fear is rational. The threat is real. We have  avoided nuclear war not through prudent leadership but good fortune." She also said that ICAN's duty is to be the "voice of humanity and humanitarian law; to speak up on behalf of civilians. Giving voice to that humanitarian perspective is how we will create the end of fear, the end of denial. And ultimately, the end of nuclear weapons." Thurlow said: "T he development of nuclear weapons signifies not a country's elevation to greatness, but its descent to the darkest depths of depravity. These weapons are not a necessary evil; they are the ultimate evil."

 

Also deserving attention are the remarks of the chair of the Norwegian Nobel Committee, Berit Reiss-Andersen, particularly so from our point of view because she made cogent observations regarding international law and nuclear weapons.

 

Among other things, Reiss-Andersen, a lawyer, said: " Nuclear weapons do not distinguish between military and civilian targets. Used in war, they would impact disproportionately on the civilian population, inflicting vast, unnecessary suffering. It is virtually impossible for civilians to protect themselves against the catastrophic effects of a nuclear attack. The use of nuclear weapons - or even the threat of using them - is therefore unacceptable on any grounds, whether humanitarian, moral or legal."

 

She also said: " It is no exaggeration to say that the nuclear-weapon states have only to a limited degree honoured the disarmament commitment they made in the Nuclear Non-Proliferation Treaty. Let me remind you that in 2000 the NPT's Review Conference stated that the treaty calls for 'an unequivocal undertaking by the nuclear-weapon states to accomplish the total elimination of their arsenals leading to nuclear disarmament'. From an international law perspective, the five legally recognized nuclear-weapon states and their allies have thus assumed a responsibility to help achieve disarmament and a world free of nuclear weapons. If the disarmament process had been carried out as intended, ICAN's struggle for a treaty-based ban on nuclear weapons would have been unneeded." She further pointed out that given the fact that four nuclear-armed states - India, Pakistan, Israel, and North Korea - are outside the NPT, a universal, treaty-based ban is needed.

  

Reiss-Andersen closed her remarks with the fitting observation that ICAN has " given the efforts to achieve a world without nuclear weapons a new direction and new vigor."