Jamie Galbraith tells the war hawks advocating the use of nuclear force to prevent the spread of weapons of mass destruction to think carefully about what they are suggesting because "as Nuremberg showed, it is not force that prevails. In the final analysis, it is law":
A Criminal Idea, James Galbraith, Commentary, Comment is Free: Five former Nato generals, including the former chairman of the US Joint Chiefs of Staff, John Shalikashvili, have written a "radical manifesto" which states that "the West must be ready to resort to a pre-emptive nuclear attack to try to halt the 'imminent' spread of nuclear and other weapons of mass destruction."
In other words, the generals argue that "the west" - meaning the nuclear powers including the United States, France and Britain - should prepare to use nuclear weapons ... to prevent the acquisition of nuclear weapons by a non-nuclear state. And not only that, they should use them to prevent the acquisition of biological or chemical weapons by such a state.
Under this doctrine, the US could have used nuclear weapons in the invasion of Iraq in 2003, to destroy that country's presumed stockpiles of chemical and biological weapons - stockpiles that did not in fact exist. Under it, the US could have used nuclear weapons against North Korea in 2006. The doctrine would also have justified a nuclear attack on Pakistan at any time prior to that country's nuclear tests in 1998. Or on India, at any time prior to 1974.
The Nuremberg principles are the bedrock of international law on war crimes. Principle VI criminalises the "planning, preparation, initiation or waging of a war of aggression ..." and states that the following are war crimes:
"Violations of the laws or customs of war which include, but are not limited to, ... murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity."
...Nuclear bombs inflict total devastation on the "cities, towns or villages" that they hit. They are the ultimate in "wanton destruction". Their use against a state with whom we are not actually at war cannot, by definition, be "justified by military necessity". ... To attack some new nuclear pretender ... would certainly constitute the "waging of a war of aggression ..." That's a crime. And the planning and preparation for such a war is no less a crime than the war itself. ...
The generals' doctrine would not only violate international law, it repudiates the principle of international law. For a law to be a law, it must apply equally to all. But the doctrine holds that "the west" is fundamentally a different entity from all other countries. ... Thus "the west" can stand as judge, jury and executioner over all other countries. By what right? No law works that way. And no country claiming such a right can also claim to respect the law, or ask any other country to respect it. ...
Is this proposed doctrine unprecedented? No, in fact it is not. For as Heather Purcell and I documented in 1994, US nuclear war-fighting plans in 1961 called for an unprovoked attack on the Soviet Union, as soon as sufficient nuclear forces were expected to be ready, in late 1963. President Kennedy quashed the plan. As JFK's adviser Ted Sorensen put it in a letter to the New York Times on July 1, 2002:
"A pre-emptive strike is usually sold to the president as a 'surgical' air strike; there is no such thing. So many bombings are required that widespread devastation, chaos and war unavoidably follow ... Yes, Kennedy 'thought about' a pre-emptive strike; but he forcefully rejected it, as would any thoughtful American president or citizen." ...
It's not just citizens and presidents who are obliged to think carefully about what General Shalikashvili and his British, French, German and Dutch colleagues now suggest. Military officers - as they know well - also have that obligation. Nuremberg Principle IV states:
"The fact that a person acted pursuant to order of his government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him."
Any officer in the nuclear chain of command of the United States, Britain or France, faced with an order to use nuclear weapons against a non-nuclear state would be obliged, as a matter of law, to ponder those words with care. For ultimately, as Nuremberg showed, it is not force that prevails. In the final analysis, it is law.