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Synthesis/Regeneration 31   (Spring 2003)


The Rogue Elephant

by Francis A. Boyle, Professor of International Law,
University of Illinois, Urbana-Champaign





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 those of the Reagan/Bush administrations had starting in January of 1981. Upon his installation, Bush Jr.’s “compassionate conservatism” quickly revealed itself to be nothing more than reactionary Machiavellianism¾as if there had been any real doubt about this during the presidential election campaign. Even the Bush, Jr. cast of Machiavellian characters was pretty much the same as the original Reagan/Bush foreign affairs and defense “experts.” It was déjà vu all over again, as Yogi Berra aptly put it.

International legal nihilism

In quick succession the world saw these Bush, Jr. Leaguers repudiate:

To date, the Bush administration has not found an international convention that it did like. The only exception was the shameless exploitation of the September 11, 2001 tragedy in order to get the US House of Representatives to give Bush Jr. so-called “fast-track” trade negotiation authority.

More ominously, once into office the Bush administration 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 US spy plane in China with the death of a Chinese pilot only exacerbated already tense US/Chinese relations. Next, the Bush administration decided to sell high-tech weapons to Taiwan in violation of the USA/PRC Joint Communique of August 17, 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 US-Taiwan self-defense treaty.

The withdrawal from the ABM Treaty

Then, as had been foreshadowed, whispered, and hinted at, came the announcement on December 13, 2001 by the Bush Jr. administration of their intent to withdraw the US from the ABM Treaty, effective within six months. Of course, it was sheer coincidence that the Pentagon released their self-styled Osama bin Laden Video just as Bush Jr. himself publicly announced his indefensible decision to withdraw from the ABM Treaty. This withdrawl would allow Bush Jr. to pursue his National Missile Defense (NMD) Program; the 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 September 11 was shamelessly exploited in order to justify a reckless decision that had already been made for other reasons long before.

Then, on January 25, 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. In doing so, the administration drove a proverbial nail into the coffin of the ABM Treaty before its body was even legally dead.

The US withdrawal from the ABM Treaty 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. These treaties have similar withdrawal clauses. The prospect of yet another multilateral and destabilizing nuclear arms race now stares humanity directly in the face. The Bush Jr. administration is preparing 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. 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 US domestic implementing legislation, the Biological Weapons Anti-Terrorism Act of 1989.

The US 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 where only the United States has the capability to launch an offensive first-strike strategic nuclear weapons attack. For that 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, US NMD is essential for mopping up any residual Russian or Chinese strategic nuclear weapons that might survive a US first-strike with strategic nuclear weapons systems.

...NMD is essential for mopping up and residual Russian or Chinese strategic nuclear weapons that might survive a US first-strike...

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 US “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 US Deputy Secretary of Defense Paul Wolfowitz appearing in the January 9, 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.

Wolfowitz admitted that the current US 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 US Deputy Secretary of Defense has publicly admitted and conceded that “almost” all US nuclear forces are really “offensive” and not really “defenses.” 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 US 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, 2002. 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.” This “axis” includes Iran, Iraq, and North Korea, Libya as well as Syria, Russia, and China, which are armed with nuclear weapons.

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 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 between (1) China and Taiwan, (2) Israel and the Arab states, (3) North Korea and South Korea, and (4) Israel and Iraq. It is obvious as to whose side the United States will actually plan to intervene with the first-use nuclear weapons. Today, the Bush Jr. administration accelerates its plans for launching an apocalyptic military aggression against Iraq, deliberately raising the specter of a US first-strike nuclear attack upon that long-suffering country and its people.

The US has officially abandoned “deterrance” for “compellance” in order to rule the future world of the third millenium.

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 US 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 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.



Francis 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).



[18 apr 03]

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