The Rogue Elephant of International Law
By Francis A. Boyle
Mr. Boyle is a professor of international law at the University of Illinois, Urbana-Champaign. He is the author of The Criminality of Nuclear Deterrence: Will the US War on Terrorism Go Nuclear? (Clarity Press, 2002) and Foundations of World Order, The Legalist Approach to International Relations (1898-1922) (Duke University Press, 1999).
Machiavelli Redux
When George Bush, Jr. came to power in January of 2001, he proceeded to implement foreign affairs and defense policies that were every bit as radical, extreme and excessive as the Reagan/Bush administrations had starting in January of 1981. To be sure, Bush Jr. had no popular mandate to do anything. Indeed, a majority of the American electorate had voted for his corporate-cloned opponent.
Upon his installation, Bush Jr.'s "compassionate conservatism" quickly revealed itself to be nothing more than reactionary Machiavellianism--as if there had been any real doubt about this during the presidential election campaign. Fascism with a friendly face. Even the Bush Jr. cast of Machiavellian characters were pretty much the same as the original Reagan/Bush foreign affairs and defense "experts," many of whom were called back into service and given promotions for international crimes they had committed anywhere from ten to twenty years ago. It was deja vu all over again, as Yogi Berra aptly put it.
International Legal Nihilism
In quick succession the world saw these Bush Jr. Leaguers repudiate the Kyoto Protocol on global warming, the International Criminal Court, the Comprehensive Test Ban Treaty (CTBT), an international convention to regulate the trade in small arms, a verification Protocol for the Biological Weapons Convention, an international convention to regulate and reduce smoking, the World Conference Against Racism, and the Anti-Ballistic Missile Systems Treaty, inter alia. To date the Bush Jr. Leaguers have not found an international convention that they like. The only exception to this rule was their shameless exploitation of the 11 September 2001 tragedy in order to get the U.S. House of Representatives to give Bush Jr. so-called "fast-track" trade negotiation authority so as to present the American people and Congress with yet another non-amendable fait accompli on behalf of American multinationals, corporations, banks, insurance companies, the high-tech and biotech industries, Wall Street, etc. The epitome of "globalization," American-style.
More ominously, once into office the Bush Jr. Leaguers adopted an incredibly belligerent posture towards the Peoples' Republic of China (PRC), publicly identifying the PRC as America's foremost competitor/opponent into the 21st Century. Then their needlessly pugnacious approach towards the downing of a U.S. spy plane in China with the death of a Chinese pilot only exacerbated these already tense U.S./Chinese relations. Next the Bush Jr. Leaguers decided to sell high-tech weapons to Taiwan in violation of the USA/PRC Joint Communiqué of 17 August 1982 that had been negotiated and concluded earlier by the Reagan/Bush administration. Finally came Bush Jr.'s breathtaking statement that the United States would defend Taiwan in the event of an attack by the PRC irrespective of Article I, Section 8, Clause 11 of the United States Constitution expressly reserving to Congress alone the right to declare war. President Jimmy Carter had long ago terminated the U.S.-Taiwan self-defense treaty.
For twelve years the Constitution and the Rule of Law--whether domestic or international--never deterred the Reagan/Bush administrations from pursuing their internationally lawless and criminal policies around the world. The same was true for the Clinton administration as well - invading Haiti; bombing Iraq, Sudan, Afghanistan, and Serbia; the Lewinsky scandal, etc. The Bush Jr. administration has behaved no differently from its lineal Machiavellian predecessors. Their bellicose handling of the 11 September 2001 tragedy was no exception to this general rule.
The Bush Jr. Withdrawal from the ABM Treaty
Then, as had been foreshadowed, whispered, hinted at and finally broadcast over a period of several months, came the monumentally insane, horrendous, and tragic announcement on 13 December 2001 by the Bush Jr. administration to withdraw from the ABM Treaty, effective within six months. Of course it was sheer coincidence that the Pentagon released their self-styled Bin Laden Video just as Bush Jr. himself publicly announced his indefensible decision to withdraw from the ABM Treaty in order to pursue his phantasmagorical National Missile Defense (NMD) Program, the lineal successor to the Reagan/Bush Star Wars dream. Predictably, the Bin Laden Video back-staged this major, pro-nuclear announcement. Once again the terrible national tragedy of 11 September was shamelessly exploited in order to justify a reckless decision that had already been made for other reasons long before. Then on 25 January 2002, the Pentagon promptly conducted a sea-based NMD test in gross violation of Article 5(I) of the ABM Treaty without waiting for the required six months to expire, thus driving a proverbial nail into the coffin of the ABM Treaty before its body was even legally dead.
The Bush Jr. withdrawal from the ABM Treaty, which was originally negotiated by those well-known Machiavellian realpolitikers Richard Nixon and Henry Kissinger, threatens the very existence of other seminal arms control treaties and regimes such as the Nuclear Non-Proliferation Treaty (NPT) and the Biological Weapons Convention, which have similar withdrawal clauses. The prospect of yet another round of the multilateral and destabilizing nuclear arms race now stares humanity directly in the face, even as the Bush Jr. administration today prepares for the quick resumption of nuclear testing at the Nevada test site in outright defiance of the CTBT regime and NPT Article VI. The entire edifice of international agreements regulating, reducing, and eliminating weapons of mass extermination (WME) has been shaken to its very core. And now the Pentagon and the CIA are back into the dirty business of researching, developing and testing biological weapons and biological agents that are clearly prohibited by the Biological Weapons Convention and its U.S. domestic implementing legislation, the Biological Weapons Anti-Terrorism Act of 1989.
The U.S. First-Strike Nuclear Strategy
With the collapse of the Soviet Union and the impoverishment of Russia leaving the United States as the world's "only superpower" or "hyperpower," we are getting to the point, if we are not there already, where only the United States has the capability to launch an offensive first-strike strategic nuclear weapons attack upon any adversary. For that precise reason, deploying the so-called "national missile defense" (NMD) has become a critical objective of the United States government. NMD is not really needed to shoot down a stray missile from some so-called "rogue state." Rather U.S. NMD is essential for mopping up any residual Russian or Chinese strategic nuclear weapons that might survive a U.S. offensive first-strike with strategic nuclear weapons systems.
The successful deployment of NMD will finally provide the United States with what it has always sought: the capacity to launch a successful offensive first-strike strategic nuclear attack, coupled with the capability to neutralize a Russian and/or Chinese retaliatory nuclear attack. At that point, the United States will proceed to use this capability to enforce its Hegemonial Will upon the rest of the world. Strategic nuclear "thinkers" such as Harvard's Thomas Schelling call this doctrine "compellance" as opposed to "deterrence." With NMD the world will become dominated by this U.S. "compellance" strategy.
Honest Nuclear War-Mongering
Consequently, it should come as no surprise that the historically covert intent of America's nuclear "deterrence policy" should now come to light through almost off-the-cuff remarks such as those by the omnipresent U.S. Deputy Secretary of Defense Paul Wolfowitz appearing in the 9 January 2002 edition of the New York Times:
"We're looking at a transformation of our deterrence posture from an almost exclusive emphasis on offensive nuclear forces to a force that includes defenses as well as offenses, that includes conventional strike capabilities as well as nuclear strike capabilities, and includes a much reduced level of nuclear strike capability," the deputy secretary of defense, Paul D. Wolfowitz, said.
Well, at least he was honest about it.
Wolfowitz admitted that the current U.S. practice of so-called nuclear "deterrence" is in fact really based upon "an almost exclusive emphasis on offensive nuclear forces." To reiterate, since this deserves emphasis: The U.S. Deputy Secretary of Defense has publicly admitted and conceded that "almost" all U.S. nuclear forces are really "offensive" and not really "defenses." That Statement could be taken to the International Court of Justice and filed against the United States government as an Admission Against Interest, Wolfowitz acting within the scope of his official duties. Of course the Peace Movement and informed American public knew this was true all along. Nonetheless, it should be regarded as an ominous sign of the times that the Pentagon has become so brazen that it is publicly admitting U.S. nuclear criminality to the entire world. The arrogance of the Hyperpower!
A Nuremberg Crime Against Peace
Then, 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 first-use 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 (NPT) 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 U.S. 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 were 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 U.S. 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 U.S. 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 U.N. Charter article 39. It must be countermanded by the U.N. Security Council acting under Chapter VII of the U.N. Charter. In the event of a U.S. veto of such "enforcement action" by the Security Council, then the U.N. General Assembly must deal with the Bush Jr. administration by invoking its Uniting for Peace Resolution of 1950.
There very well could be some itty-bitty "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!
home vicpeace.org
