Nuclear Posture Review
A Nuremberg Crime Against Peace
Francis A. Boyle 
(extract*)
Writing in the March 10, 2002 edition of the Los Angeles Times, defense analyst William Arkin revealed the leaked contents of the Bush Jr. administration's Nuclear Posture Review (NPR) that it had just transmitted to Congress on January 8. The Bush Jr. administration has ordered the Pentagon to draw up war plans for the firstuse of nuclear weapons against seven states: the so-called "axis of evil" - Iran, Iraq, and North Korea; Libya and Syria; Russia and China, which are nuclear armed.
This component of the Bush Jr. NPR incorporates the Clinton administration's 1997 nuclear war-fighting plans against so-called "rogue states" set forth in Presidential Decision Directive 60. These warmed-over nuclear war plans targeting these five non-nuclear states expressly violate the so-called "negative security assurances" given by the United States as an express condition for the renewal and indefinite extension of the Nuclear Non-Proliferation Treaty by all of its non-nuclear weapons states parties in 1995.
In this regard, Article 6 of the 1945 Nuremberg Charter provides in relevant part as follows:
"The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:
(a)
Crimes against peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;
Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan".
To the same effect is the Sixth Principle of the Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, which were adopted by the International Law Commission of the United Nations in 1950:
"Principle VI - The crimes hereinafter set out are punishable as crimes under international law:
(a)Crimes against peace:
(i)Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
(ii)Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i)."
Notice that both of these elemental sources of public international law clearly provide that the "planning" or "preparation" of a war in violation of international "assurances" such as the aforementioned US negative security assurance constitutes a Nuremberg Crime against Peace. Such is the Bush Jr. NPR!
The Rogue Elephant of International Law and Politics
Equally reprehensible from a legal perspective was the NPR's call for the Pentagon to draft nuclear war-fighting plans for first nuclear strikes
1.against alleged nuclear/chemical/biological "materials" or "facilities";
2."against targets able to withstand non-nuclear attack"; and
3."in the event of surprising military developments,"
whatever that means.
According to the NPR, the Pentagon must also draw up nuclear war-fighting plans to intervene with nuclear weapons in wars
1.between China and Taiwan;
2.between Israel and the Arab states;
3.between North Korea and South Korea; and
4.between Israel and Iraq.
It is obvious upon whose side the United States will actually plan to intervene with the first-use nuclear weapons. And quite ominously, today the Bush Jr. administration accelerates its plans for launching an apocalyptic military aggression against Iraq, deliberately raising the spectre of a US first-strike nuclear attack upon that long-suffering country and its people.
The Bush Jr. administration is making it crystal clear to all its chosen adversaries around the world that it is fully prepared to cross the threshold of actually using nuclear weapons that has prevailed since the US criminal bombings of Hiroshima and Nagasaki in 1945. Yet more proof of the fact that the United States government has officially abandoned "deterrence" for "compellance" in order to rule the future world of the Third Millenium.
The Bush Jr. administration has obviously become a "threat to the peace" within the meaning of UN Charter article 39. It must be countermanded by the UN Security Council acting under Chapter VII of the UN Charter. In the event of a US veto of such "enforcement action" by the Security Council, then the UN General Assembly must deal with the Bush Jr. administration by invoking its Uniting for Peace Resolution of 1950.
There very well could be some ittybitty "rogue states" lurking out there somewhere in the Third World. But today the United States government has become the sole "rogue elephant" of international law and politics. For the good of all humanity, America must be restrained. Time is of the essence!
* This text is an extract of Francis A. Boyle's article "The Rogue Elephant" (July 2002). For the full version, contact the author.
Francis A. Boyle is a professor at the University of Illinois College of Law. His latest publications include "The Criminality of Nuclear Deterrence. Could the US War on Terrorism Go Nuclear?" (Clarity Press, Atlanta, 2002). fboyle@law.uiuc.edu.
