By John LaForge

US general says order to launch nuclear weapons can be refused if illegal —Chicago Tribune, Nov. 18

US nuclear commander would balk at any “illegal” order —MSNBC, Nov. 18

General heading Strategic Command says illegal nuclear launch order can be refused
—NBC News, Nov. 18

Top general says he would resist “illegal” nuke order from Trump —CBS News, Nov. 18

Top US general says he would resist illegal nuclear strike order from Donald Trump —The Independent, Nov. 18

All these headlines give the direct impression that a nuclear attack could be legal in some circumstances. But is this possible?

Air Force General John Hyten, commander of Strategic Command, told the Halifax International Security Forum Nov. 18, that an order from the president to launch nuclear weapons can be refused if that order is determined to be illegal. In the face of an unlawful order, Gen. Hyten said, he would tell Trump he couldn’t carry it out. “If it’s illegal, guess what’s going to happen?” Hyten asked the gathering. “I’m going to say, ‘Mr. President, that’s illegal.’”

Four days earlier, retired Gen. Robert Kehler, who previously held Gen. Hyten’s top job at Strategic Command, testified likewise to the Senate Foreign Relations Committee, saying that nuclear war commanders could “ignore any unlawful order by the president to launch a nuclear strike.”

Generals Hyten and Kehler both said in their unprecedented public comments that the legal principles of “military necessity,” “discriminate destruction,” and “proportionality” all apply to decisions about nuclear attacks. Senator Ben Cardin, D-MD, asked Gen. Kehler if he meant that Strategic Command could disobey a president’s ordering a nuclear attack. “Yes,” Kehler said.

Legal scholar George Delf scolded military and civilian authorities who practice this sort of trivializing of nuclear weapons 30 years ago. In Humanizing Hell! The Law V. Nuclear Weapons (Hamish Hamilton, 1985), Delf wrote, “There is something incongruous about lawyers who spend their working week concerned with routine [matters], and a few spare hours arguing against mass murder and the destruction of civilization.”

That military officers “could” disobey, or “can” refuse unlawful orders are actually understatements in this context. US military service manuals explicitly require military personal to refuse illegal orders. As everyone sworn-in to the service is taught, disobeying illegal orders is mandatory; following them is a crime worthy of court martial. As CNN reported: “Under US military law, troops are obligated to not obey an unlawful order. If they received such an order, they could resign or force Trump to fire them.” During last year’s presidential run, when Trump promised to unlawfully torture prisoners, kill the families of suspected militants, and bomb civilians, “Pentagon Press Secretary Peter Cook noted on [Nov. 17, 2016] that all US troops have an obligation not to follow illegal orders”—CNN reported.

Certain weapons effects always unlawful

But more importantly, there is a deep and startling absurdity and shocking ignorance in these public nuclear war conversations. Any use of nuclear weapons would be indiscriminate and illegal by definition. Only the uninitiated, uninformed or willfully blind can still imagine that today’s nuclear weapons could be used “proportionately” to produce more military good than evil. The uncontrollable, unlimited, and unfathomable magnitude of nuclear weapons effects have been established as unlawful in countless text books, law journals, government studies and independent analyses.

The use of nuclear weapons under any circumstances would be illegal because international covenants, treaties, and protocols forbid indiscriminate destruction, attacks that are disproportionate to a military objective, and weapons’ effects that “treacherously wound,” harm neutral states, or do long-term damage to the environment.

In her book Thermonuclear Monarchy (WW Norton, 2014) Professor Elaine Scarry of Harvard reminds us that as long ago as 1995, Sweden, Iran and Egypt argued before the International Court of Justice that since nuclear weapons cause disproportionate suffering, they are prohibited by the 1868 Declaration of St. Petersburg and the Geneva Protocols of 1925, 1949, and 1977. The Republic of the Marshall Islands argued that using nuclear weapons would violate the 1907 Hague Conventions prohibiting weapons with effects that cross into neutral states. Both North Korea and India, neither of which possessed nuclear weapons in 1995, wrote to the World Court insisting that it judge them unlawful. India argued that any use of nuclear weapons, including the mere possession of them, is illegal under the Charter of the United Nations and international “rules of proportionality.”

Charles Moxley, in his 813-page study Nuclear Weapons & International Law (Austin and Winfield, 2000) puts this list of treaty violations in perspective: “Nuclear weapons are not illegal just because they violate these laws of war, as exhaustively proven in this volume. They are illegal because they cause widespread and indiscriminate destruction without promoting the purpose of war: resolving conflict … They are not weapons but only wanton machines of symmetric destruction.”

Physical effects: “complete ruin”

What the generals and the congressional bureaucrats fail to grasp in their fantasies of legal nuclear attacks, is the vastness of the difference between conventional and nuclear weapons, and that the latter cannot be used in war without slaughtering hundreds of thousands of civilians—that is, without committing war crimes. Some uncomfortable background information might be necessary.

Moxley’s Nuclear Weapons & International Law reports that, “A nuclear detonation generates temperatures of 100 million degrees while a dynamite explosive about 3000 degrees.” What this unimaginable heat does to cities is explained by Lynn Eden in her book Whole World on Fire (Cornell Univ. Press, 2004). “Mass fire and extensive fire damage would occur in almost every circumstance in which nuclear weapons were detonated in a suburban or urban area. …damage from mass fire would extend two to five times farther than blast damage.”

In 1977, the Federal Emergency Management Agency’s 653-page book The Effects of Nuclear Weapons notes with understatement, “persons in buildings or tunnels close to ground zero may be burned by hot gases and dust entering the structure…” In its lengthy consideration of radiation effects, taken from the US Atomic Bomb Casualty Commission, the FEMA study says in part, “Among them, apart from genetic effects, are the formation of cataracts, nonspecific life shortening, leukemia, other forms of malignant disease, and retarded development of children in utero at the time of the exposure.” As Ann Fagan Ginger reported in her book Nuclear Weapons are Illegal (Apex Press 1997), “They continue to maim and kill long after they explode in a test or in a war.”

Mass fire, or “firestorm” Eden writes, is “the simultaneous combustion of many fires over a large area, which causes a great volume of air to heat, rise, and suck in large amounts of fresh air at hurricane speeds from the periphery,” Eden notes. “Within ten minutes after the cataclysmic events associated with the detonation, a mass of buoyantly rising fire-heated air would signal the start of a second and distinctly different event—the development of a mass fire of gigantic scale and ferocity. This fire would quickly increase in intensity. In a fraction of an hour it would generate ground winds of hurricane force with average air temperatures well above the boiling point of water (212°F, 100°C). This would produce a lethal environment over a vast contiguous area.”

Eden’s research is worth quoting at length. “The first mass fire in history was created by allied incendiary raids at Hamburg on the night of July 27-28, 1943. Within 20 minutes, two of three buildings within an area of 4.5 square miles were on fire. In three to six hours, this fire so completely burned out an area of more than 5 square miles that the area was referred to by damage analysts as the ‘Dead City.’ Well-documented accounts describe wind speeds of hurricane force within the city. Air temperatures were calculated to be between four and five hundred degrees Fahrenheit, hundreds of degrees above the temperature of boiling water. [Up to] 100,000 people were killed in the attack. A mass fire resulting from a modern nuclear weapon could be expected to burn out an urban or suburban area of considerably larger size in a similarly brief time.”

Delf’s Humanizing Hell! is concise, bold, and direct. “[A]rmed forces are committed by military, domestic and international law not to attack non-combatants. Any government which adopts a defense policy implying such an attack is therefore inciting its own forces to commit war crimes on a gigantic and suicidal scale.”

Editor’s note: Korea scholar Bruce Cumings teaches at the University of Chicago and is the author, most recently of, The Korean War: A History. Professor Cumings was interviewed on Democracy Now November 10. A partial transcript of his remarks follows.

Bruce Cumings: “Pyeongtaek, South Korea is the largest military base in the world outside the United States. The US has operational control over 650 thousand South Korean soldiers. Yet National Security Council head General McMaster chided South Korea for ‘not protecting its sovereignty’ over a deal South Korea made with China” just before Trump’s arrival.

“In what is likely the most important event of Trump’s Asia junket, China and South Korea agreed that there would be no more anti-missile batteries installed in South Korea. And South Korean president Moon Jae-in said explicitly that he would not join an alliance of the US and Japan, whether it’s targeted at China or anywhere else. [President Moon] pointedly said ‘the US is an ally,’ (we have a mutual defense treaty with Korea) ‘Japan is not an ally.’

“He or his staff brought a ‘comfort woman,’ 88 years old, in other words a sex slave of the Japanese Army, to meet with Trump when he was in South Korea. The Japanese weren’t too happy with that.

“But it’s absolutely ridiculous that the US keeps trying to knock together a tripartite alliance between Japan, South Korea and the US, when relations between Korea and Japan are still as bad as they are and Japan has never really issued a proper apology for putting more than 100,000 Korean women into sex slavery….

“There’s no military solution in North Korea. What would solve the problem … is for the US to agree to freeze its own huge military exercises in South Korea, in return for a freeze on North Korean testing of its missiles and atomic bombs. This is a so-called ‘freeze for freeze’ proposal that, for example, former Secretary of Defense William Perry supports. [China and Russia have jointly proposed such a freeze.]

“It’s not clear that North Korea supports it, but we haven’t tried. Then, once that freeze is in place, to open diplomatic relations with North Korea.

“Diplomacy is not something you do among friends. Diplomacy arose in world history to deal with enemies. We’ve had no diplomatic relations with North Korea for 72 years, and it hasn’t hurt them any more than the sanctions. … If the US sent an ambassador to Pyongyang it could finally gain some influence over the regime. North Korea has wanted diplomatic relations for 25 years.

“North Korea is building toward an end-point that is coming soon. This is a clear signal that North Korea would like to begin diplomatic relations. Its last [bomb] test was Sept. 15.

“When you put these relatively modest steps alongside the catastrophic nature of a new war in Korea, it seems to me the overwhelming choice.”

*************

In an address to the UN General Assembly Sept. 19, Trump issued a bald threat to “totally destroy” North Korea, a nation of 25 million people. The obscenity drew audible gasps from UN delegates. Elsewhere, Trump has raged about being “locked and loaded” and bringing US “fire and fury” against the North.

In the same speech Trump sounded like critics of his own White House, warning “If the righteous many don’t confront the wicked few, then evil will triumph.”

In response to his UN harangue, North Korean President Kim Jong-un said Mr. Trump was a “mentally deranged US dotard.” Christopher Hill, a former ambassador to South Korea told The New York Times, “The comments give the world the sense that [Trump] is increasingly unhinged and unreliable.” One month earlier, after a July 20 meeting at the Pentagon where Trump called for a tenfold increase in US nuclear weapons, Secretary of State Rex Tillerson called him a “fucking moron,” NBC News reported.

In November, the dotard reversed himself while visiting South Korea, saying it would be in the North’s interest to “come to the table and make a deal.” Any US attack on the North would endanger millions of South Koreans, 38,000 US military, and 57,000 Japanese citizens living there.

To most observers, it is absurd to believe that the North would fire a nuclear weapon at the US without first being attacked. “The view that North Korea would start war to communize Korea [as some in the White House believe] doesn’t make sense anymore,” Kim Yong-hyun, at Dong-guk University in Seoul told the press, “North Korea knows that if it ever uses a nuclear weapon, it means self-destruction.”

North Korea believes that giving up its nuclear weapons would invite a US invasion, like the unprovoked US attacks on Iraq and Libya after they eliminated their warheads. Even National Intelligence Director James Clapper said last year that the North thinks its nuclear weapons are “their ticket to survival.”

Acronyms: ALCM: air-launched cruise missile; ICBM: intercontinental ballistic missile; LGM: silo-launched ground-attack missile; MIRV: multiple independently targetable reentry vehicle; UGM: underwater launched ground-attack missile.
a) This Notebook lists total warheads available.
b) Roughly 200 of these are deployed on 200 Minuteman III missiles equipped with the Mk12A [warhead]. The rest are in central storage.
c) The W87 was initially deployed on the MX missile in 1986 but transferred to the Minuteman in 2006.
d) There are a total of 540 W87s in the stockpile. The 200 Mk21-equipped ICBMs can each carry one W87. The remaining 320 W87s are in storage.
e) Of these ICBM warheads, 400 are deployed on operational missiles and the rest are in long-term storage.
f) The Navy is reducing the number of missile tubes on each nuclear-powered ballistic missile submarine (SSBN) from 24 to 20. As of early 2017, the force included 10 SSBNs with 20 tubes each and two SSBNs with 24 tubes each, for a total of 12 deployable submarines. Two additional submarines, each still with 24 missile tubes, are in refueling overhaul. They are not available for deployment and not assigned nuclear weapons.
g) All W76-0 warheads have been replaced on SSBNs by W76-1 warheads but several hundred are still in storage and more have been retired. When the W76-1 use-extension program production is completed in FY 2019, the remaining W76-0 warheads will be scrapped.
h) Of these submarine warheads, approximately 890 are deployed on missiles loaded in SSBN launchers.
i) The first figure is the aircraft inventory, including those used for training, testing, and backup; the second is the portion of the primary-mission aircraft inventory estimated to be tasked for nuclear [war planning]. As of September 2016, nuclear-[armed] bombers counted under New START included roughly 70 B-52s and 20 B-2s.
j) Of these bomber weapons, only about 300 are deployed at bomber bases. This includes an estimated 200 ALCMs at Minot Air Force Base, ND, and approximately 100 bombs at Whiteman Air Force Base, MO. The remaining 738 weapons are in long-term storage. B-52s are no longer tasked to deliver gravity bombs.
k) Roughly 150 B61-3 and -4 bombs are deployed in five European countries and the rest are in central storage in the United States.
l) This includes 4,322 warheads for the operational forces (listed above) plus roughly 160 spare warheads (part of the reserve).
m) Deployed warheads include approximately 1,290 on ballistic missiles (400 on ICBMs and 890 on submarine missiles), 300 weapons at heavy bomber bases, and 150 midrange B61 gravity bombs deployed across five European countries. Another 320 bombs are in storage in the United States, for a total estimated inventory of 500 B61s.
* The bomb used by the United States on Hiroshima in 1945 was about 15 kilotons.
** The B83 is a 1,000 kiloton (1 “megaton”) bomb, 66 times the force of the Hiroshima bomb.