Harvard national security journal, Vol. 9, issue 2, 2018, p. 84-120
Anthony J. Colangelo
This article argues there is a legal duty to disobey illegal nuclear strike orders. Failure to carry out this duty may result in criminal and civil liability. Because nuclear weapons are quantitatively and qualitatively different from conventional weapons, typical legal calculations regulating their use under the laws of war or humanitarian law, as well as human rights law, change along with the change in weaponry. At least five “unique characteristics” of nuclear weapons ominously distinguish them from conventional weapons in ways that promise only to increase civilian death and suffering. This Article’s thesis largely boils down to: If conventional weapons can be used to achieve the same or similar military objectives as nuclear weapons in proximity to civilians, and nuclear weapons are ordered to be used instead, that order may be manifestly illegal, leading to war crimes for which actors can be liable if they obey the illegal order. This universal customary international law applies both to state and non-state actors alike.