The Origins Podcast with Lawrence Krauss - Charles Moxley Jr: Nuclear Weapons are Illegal

Episode Date: November 4, 2024

Charles Moxley Jr has spent over 35 years as a litigator in New York, in large and complex commercial, securities, insurance and other cases throughout the United States. He is perhaps the last person one might imagine could bring about the end of a continually proliferating international presence of nuclear weapons. Yet personages as eminent as the late Robert S. McNamara, and Cyrus Vance, as well as nuclear security expert physicist Kosta Tsipis think he might have hit a promising line of attack to quell an ever growing international arsenal of nuclear weapons threatening just just world peace but civilization itself. Moxley analyzes the question in light of the July 1996 opinion issued by the International Court of Justice, as well as the law as articulated by the United States itself. Using generally recognized facts as to the characteristics and effects of nuclear weapons Moxley Jr concludes that the use of nuclear weapons is "per se" unlawful.To back up his arguments Moxley Jr wrote a comprehensive treatise, in excess of 800 pages, to examine both the International Court of Justice’s perspective, and also the legal claims made by the United States, in light of the known characteristics of nuclear weapons. His book, which took 10 years to produce in its first edition, was reviewed by major figures in the field, has recently been updated, and released as a two-volume set. It was the new release of these books that prompted our conversation.In our discussion we unpacked and clarified the various legal issues, as well as the rather strange and one might say absurd position of the United States regarding the effectiveness of their own nuclear weapons arsenal. The result is what can be a clear primer that can add a new perspective regarding the sanity of a world where over 10,000 nuclear weapons exist, with over 2000 such weapons kept on hair trigger alert, and perhaps encourage your own activism in this regard. At the very least it will reveal the remarkable circumstances surrounding the 1996 International Court of Appeals proceedings, and a legal case few outside of experts have ever heard about. I enjoyed the discussion and learned a great deal, and I hope the same will be true of you. As always, an ad-free video version of this podcast is also available to paid Critical Mass subscribers. Your subscriptions support the non-profit Origins Project Foundation, which produces the podcast. The audio version is available free on the Critical Mass site and on all podcast sites, and the video version will also be available on the Origins Project YouTube. Get full access to Critical Mass at lawrencekrauss.substack.com/subscribe

Hello and welcome to the Origins Podcast. I'm your host, Lawrence Krause. In this episode, I had the chance to talk to a lawyer, Charles Moxley, who's written a comprehensive two-volume set of books on nuclear weapons and international law. The first edition of this came out in 2000 and the second edition now. And there's a reason for that. In 2000, we're living in different times than we are now. We're living in a time which is particularly scary where people are beginning to except the likelihood and possibility that nuclear weapons might actually be used. Now, if you listen to this podcast, you know that I've talked about the dangers of nuclear weapons a lot. But the interesting thing about what Charles Moxley has done and widely and popularly reviewed for having done this is to a detailed analysis of the legality of the use of nuclear weapons. And he argues in detail and comprehensively that the use of nuclear weapons, is fundamentally illegal under international humanitarian law. And that's what I wanted to have the discussion with him about.

He's had a long career as a litigator and mediator, but for many, many years has worked, and as I say, initially in 2000, after working on it for 10 years, produced a book arguing following a ruling in 1996 that nuclear weapons might not be illegal by the international criminal justice, committee argued in detail why they would be illegal and why we might be able to use the law if we can't use other things to reduce the threat of nuclear weapons.

And it's an interesting discussion that I think we'll raise your hackles as it did mine the utter irrationality of not just the use of nuclear weapons, but some of the legal arguments that have been used by our own country to argue for why nuclear weapons are are apparently legal. It was, I think, a fascinating and really informative discussion that can send chills up your spine, but may indeed ultimately give us new tools to end this threat, this existential threat to human existence. So I hope you enjoy the discussion as much as I did. You can watch it, add free on our critical mass substack sites.

where you can listen to it or watch it on our YouTube channel after that or listen to it on any podcast listening site. No matter how you listen to it or watch it, I hope you'll consider supporting the Origins Project Foundation, the nonprofit foundation that produces this podcast. You can do it directly by subscribing to Substack or you can donate to us in other ways. But if you enjoy these podcasts,

I hope you'll continue to support the foundation. Thanks very much. With no further ado, Charles Moxley. Well, Charles Moxley, thank you for joining me for this podcast. I'm fascinated by the work you've been doing, so it's a great, great to have a chance to talk to you. Well, thank you. I'm looking forward to it. I've seen online the kind of podcast you've done, and they look great. I'm going to be watching them and listening to that. Oh, good. Well, if you can stand watching yourself, I hope you'll feel it'll be as good.

and well look you know as you've been watching what you you know that that I like to find out about my guest to how they got to where they are and to make it clear we're going to be talking about well this podcast is based on the new edition of a classic book that you've written two volume book a mammoth two volume book a thousand pages long on nuclear weapons and international law and it's a fascinating take on how the law might be used to somehow reduce this quandary we've come in internationally with our dependence on nuclear weapons. But it took a while to get there. And I'm intrigued by your background because you've been a litigator and arbitrator and

arbitrator and mediator for a long time. and this is an international relations kind of issue. But your background involves international relations a little bit. You did an undergrad. Well, let's start. You did your undergraduate degree in political science. Is that right? Right.

Yes. So let's go back. Did you know you wanted to be a lawyer? Or what took you the road to becoming a lawyer? I always knew I wanted to be a lawyer. and I was interested in politics, political science, and you have to remember that when I came through the system and through college, it was the height of the Cold War.

Yeah. So, you know, the whole Cold War thing was something that we lived with at that time, really every day. Yeah, now, okay, so that's when you were young, and did you have to go under your desk and do the nuclear weapons drills and those sort of things? I've heard those stories. I don't remember ever being told to do it.

But my wife remembers that when she was in school, that they did that. Yeah, I've heard it so often that I think it's a recovered memory for me. I grew up in Canada, but I still seem to remember I're doing it, but I don't think we did. So what made you want to be a lawyer? I think I wanted to be a litigator. I mean, like so many, I was... Was it Perry Mason or was it... Yeah, I mean, I was influenced by...

the culture and my father was a lawyer. Ah, well, of course. And it was Perry Mason, too. I mean, you exactly hit it because that was the, you know, I mean, that was the milieu when I was growing up and when I was in high school. Yeah, absolutely. Now, so your father was a lawyer, was, what, did your mother work outside the house or did she? I know she didn't, but, but, but he was a lawyer and an engineer. So I was, I was exposed to both, but the law, but the law piece kind of got my attention. Uh, and I always knew I was. going to do that. Interesting. He was lawyer. Did he went to engineering school and then went to law school?

He went to Hopkins and in in chemical engineering and then he went to law school. And there are people even today who do that because he kind of set up for IP and being a patent attorney and that kind of thing. I mean, it's even more true today, isn't it? Yeah, absolutely. Yeah. Absolutely. Now, did he want you to be a lawyer or was there pressure on you? No, I don't think so. I don't think there's preference pressure. But what I remember, I really, I went to Fordham College, and I remember that if the opening orientation, they were talking about Russia and the Cold War and the Soviet Union, and Fordham had this great program of Russian area studies, you know, and I got involved in that, and I

studied the language, and they had all these, you know, people who had left Russia, left the Soviet union and we're on the faculty there. And so it was a way to get involved in, you know, the kind of issues that you and I are going to talk about today, really. Okay. I knew that you, well, I knew that you had a Russian interest because I know you did that you went on to study, to do a master's degree in Russian studies, right? I did. Yes. I, I, I, I was it for them as well. Yes, I did that for an extra year and then I went off to Columbia Law School. Yeah, you went to Clem University Law School, that's right now. Which was very big at the time, and still is, in international law.

So it was a big draw to be able to study stuff there from people who were really leading figures in the world on international law. And the undergraduate degree in political science was, again, with an idea of, was it your international bent? Why political science? Why not history or something else? Yeah, I mean, I think international affairs was the, the big interest I had, and that seemed to be a way of getting into it.

Now, okay, and then you went to law school, but did you focus on international law? I mean, look to me that your career has been domestic law, or at least arbitration and mediation, but is that been domestic or international in terms of your... What I did when I started working, as you suggest, was really, litigation. I mean, I went to Davis Polk, which is a big law firm and has a great litigation practice, and I was there for some years and got training in big securities and antitrust cases. And I was always on the side doing this arms control stuff. There was a group back then Lanick later changes named the laws, which was a lawyer's group

that was interested in, you know, arms control when dealing with a, the threat of nuclear weapons and the whole strategic environment. And I got very involved in that. There were different ways to do it. There's a wonderful bar association in New York City Bar, the New York City Bar Association, and they have wonderful committees. So I was a young litigator, but one night a month, I'd go off to a committee meeting on international affairs, and it was a wonderful program and speaking.

were brought in from the whole area of security affairs, nuclear weapons policy, and things of that nature. Was the committee focusing on nuclear weapons, or was it just security in general, that group you attended? Yeah, it was really focused on public international law. Public international law. The woman who was the chair of it, Ruth Wedgwood, I remember her well, and this goes back a long time, but she was a law professor at Yale, and she seemed to know everybody. So that was really my introduction

to people whom I could talk to firsthand, you know, who knew the kind of things that later became my focus as I started writing the books on it. Well, yeah, again, I'm intrigued, but well, let's let's now head towards the writing of these books because the first edition was in 2000. You were a litigator,

and you were attending these meetings, but to come up to speed, nuclear weapons issues, not just the physics of them. And I assume you didn't have any science classes when you were in university. I did not. But through that lawyers group that I mentioned,

it had a board of people who were former government officials in this area and congressional leaders. And so it had, conferences a couple times a year. This was before we had Zoom available and podcast and everything. But I would go in person to these conferences and one would meet people who have been leaders of our government and people from other governments occasionally who were expert in

this area. So it was kind of a thing. It was like a tutorial. It really was. And it's one of the good things about being a lawyer in private practice, you know, because you have a ability to do this, and law firms tend to respect it as a side activity. That's great that they respect it. I mean, but that kind of regular tutorial is useful.

When I was chairman of the board for a decade of the bulletin atomic scientists setting the Noomsday Clock, I found that every year in setting the Doomsday Clock, we'd have a symposium, and it was a great extra degree in getting experts in a variety of areas. to come regularly. That's climate change and as well as the nuclear weapons issues and and bioterrorism. So that's great. So then, so you had that training and when, when did you I think I remember you grad it was quite a while. You graduated Columbia in 1969. Is that right? Right. Yes, it is. A time of tumult and and lots of, lots of protests related to the Vietnam War. Indeed, much like today. Yeah, exactly. Well, at least I think then the process,

ancestors knew what they were protesting. But anyway, so that was, obviously, when it comes to international law, well, there were, you also grew up at a time of the Cuban missile crisis, I guess, and, and, and, I was in college. Ostensibly, not, yeah,

ostensibly the closest we came to real use of nuclear weapons. Although, as you point on in the book, and it's true, there have been many close calls that made people aren't quite, aware of. But it was quite a while then. It was 30 years before you completed the book. I don't know how long it took you to write it. What caused you to decide that writing this kind of book and a massive undertaking to establish the legal case for why nuclear weapons violate international law, essentially? Take us through that trajectory and that voyage, if you will. I think most fundamentally, Lawrence, it was two things.

One was that having grown up in the Cold War, having been interested in international law, having had the exposure through the City Bar Association Committee, which was absolutely wonderful, and I stayed on that committee for years, and then through being active in that Lawyers group, laws, I had had exposure to people who knew a lot about the policy, but very little was written on the law. There just isn't much. And even today, if you go and Google nuclear weapons, you're going to get a billion hits, right?

But if you decide, well, I want to study, I want to educate myself a little on the law that might be applicable in this area, it's precious little, right? So I think I had almost an innate sense of this. I mean, I'm not even sure I was conscious of it. But there I am working in big law where everything is so seriously. Take it so seriously. You know, you research everything. You know what that world is like.

You research it. You do memos. And then people question your memos and you research it again. And it is so serious. And then you look at this area where we had this, what everybody knew was existential with mutual sore destruction. between the U.S. and the Soviet Union, and you say, you know, is there a law here?

And what is it? And while there appeared to be some law, and there was some law out there. And as you know, in the mid-90s, you had that case that the General Assembly of the UN brought before the International Court of Justice, the Court of the United Nations, on the issue,

notwithstanding all that, the real focus on law, as may be applicable to use of these weapons and deterrence, it was so thin. And so I think I looked at that and I said, this is not a situation that makes any sense. And I decided to look into it and I started really getting into it. The first edition of my book, as you say, came out in 2000, but I worked on it for 10 years. I mean, it was a major project. If you worked on it for less, and I'd be surprised, it's an incredibly long, well, it's two volumes of a thousand.

pages of of of actually i have to say i was going to say dense prose but it's not too dense it's very well it's readable and and and and well written it's not it's not i was worried it would read like a law review article or something but it doesn't at least for you know i tried to talk to people so you know and there's sort of two books there right yeah you can read above the line and not look at the footnotes and that's very readable uh but if you're into it from you know a policy if you work in defense or or in academe or at the Carnegie Foundation or someplace, and you want to look at the footnotes to check the analysis, I mean, that is more dense.

I mean, I have to. Yeah, obviously. Well, okay, that's fine. And it's great to have that opportunity. But, well, the 2000-ish came out. And I have to say, the various forwards and quotes are from, well, so I know at least two of the three people. I'm impressed with, you know, William Perry, of course.

former Secretary of Defense and someone I've actually had not just podcast but relationship with him, the bulletin, Robert McNamara, who I didn't get to know, and then Costa Sippus, who I knew from MIT. And I can't resist but reading a quote from the forwards from both Perry and McNamara to give us people a sense of where this is coming from. And then I want to quote you. but William Perry said that this book makes a pervasive case for the for working to eliminate nuclear weapons since it is hardly possible to imagine a use that could be in compliance with

recognized principles of international humanitarian law and Robert McNamara said the best exposition I've seen of the irrationality of U.S. policy in this area, the rationality of the politics of other nuclear weapons states, and the irrationality of the irrationality of the human race in permitting the potential use of these weapons to continue, which I, so it's that irrationality, which of course I and others have talked about for a long time. Our nuclear weapons policy is irrational from the very beginning. But the fact that it might be illegal is very intriguing. And one of the key aspects of it being illegal, it comes from Costa Sippas, who was head of the program in sort of physics and security at MIT for a long time, a wonderful guy.

and he made the point which you'll which which which which which I think is central to your legal argument he makes the point in the forward that nuclear weapons are not weapons they're not weapons in the traditional sense and therefore they shouldn't they cannot be treated that way they weapons have a have a and his argument of weapons was that they lead to a asymmetric uh they take a conflict and make it asymmetric one side win one side loses and and that cannot be said of nuclear weapons ultimately and maybe we'll get there. But this irrationality is interesting. And you pointed out, okay, in 2000, you wrote the book,

and it looked like it was a good time, when hoped, for optimistic. I mean, it is true that Gorbachev and Reagan had met, and there was some chance earlier of actually getting rid of nuclear weapons. I'm not sure it was really a chance. But in 2000, there were at least, There were at least treaties, and there were discussions between parties, and that, of course, hasn't gone anywhere. And I do want to quote you because it gets the premise of this book.

In your preface, you say the likelihood that on a political, ideological, technological, technological, military policy or planning level, states will step back from the nuclear regime simply doesn't seem realistic anymore. Absent some galvanizing event, the loss of major city or the like. Quite simply, the nuclear weapons regime seems so deeply entrenched at this point that it seems unrealistic that the situation is going to change, which brings us to the premise of this book, that law can be the answer, can be the way out as it has been over time in so many years of human life as civilization has advanced, that law may potentially be the catalyst for our civilization to effectively address the risks of nuclear weapons. and that's the premise of this of this long book and I want to sort of work through it

in principle why why the law may may have an impact and so let's let's let's head there the key point and you'll tell me and I want you to elaborate on this in fact it's the beginning of your introduction is that the U.S. has a position that there's no conventional or customary rule of law, specifically prohibiting the use of nuclear weapons. And as you point out, it has argued that before the International Court of Justice. And the purpose of this book, I have your book, is to show that that claim is not only incorrect, but that in fact, the United States has come out openly, if it were internally consistent, has basically admitted as much in its discussion of nuclear weapons. And so let's let's, let's

go there. So let's, why don't you talk about, give a summary of why the law can help us, and then we'll proceed to look at the details. Thank you so much for that kind of background, because you really hit it right at the points that are key to my analysis and my thesis here, my overall project. I think stepping back a little bit, The potential salience of law here must be looked at on a relative basis compared to policy. And the concern I have is that on a policy level, as you well know from the work that you've been doing and you've done for a long, going back a long time, on a policy level, the policy level, the policy of nuclear deterrentices, seems very intuitive. And it seems absolutely wonderful.

Oh, do you mean all we have to do is threaten and nobody has to get hurt? We just spend some money. I mean, that's great, right? You know, and I think if you went around and I know you get wonderful, I mean, you've had so many people who have been on the inside on this kind of thing. I think if you had people on the inside from government and even academic, you know, the sense would be, yeah, deterrence is intuitive and it makes sense. And so on the on the comparison that I opened up with, I think that intuitiveness of deterrence

makes it very hard to make significant progress towards actual abolition. I think as we did, as you say, during the Cold War until the end of the Soviet Union, we had made material project. And as I know, you know, the numbers had been so much bigger. I mean, tens of thousands of these weapons at the height of the Cold War. And now the numbers have been taken down. So we can get arms control. But because of deterrence being so intuitive and so attractive, I don't think we're ever going to get rid of these weapons.

And so that's the argument for law. You know, one can't be unrealistic. Obviously, today, there's very little, as you know, discussion going on, even at the U.N. between the U.S. and Russian diplomats. People aren't talking. So it would be unrealistic to say, oh, well, we're going to get a big new treaty and we're going to take the weapons. down, we're going to get abolition. That's not going to happen. But in terms of how we can change policy, I think there's two levels of discussion we need. One is why what I described is

the attractiveness of deterrence is a fallacy. You know, on the policy level, on the on the, on the, facts level, and every legal issue, as you know, is looking at the facts and the law. On the facts level, that notion of deterrence, which is our dominant sense, is totally incorrect. It's a emperor has a great suit of clothes on phenomenon, you know? Yeah. So, so, you know, it's hard to know where to start because there's so many pieces here. But on the deterrence piece, I think it makes sense to talk about why deterrence as we look at it is a fallacy. On the law piece, I think we need to be realistic that law. is not going to change it all of a sudden, but here's the hope. And it's almost, and I know you've

had speakers talk about this kind of thing, it's almost existential in terms of our human capability, right? Because the risks of this stuff. And I saw when I was preparing that you had had Annie Jacobson on not that long ago, who wrote that book, which I bought and I haven't really gotten through it yet because I've been working on my own. But, I mean, she talks very, you know, very deeply. you know, about all the problems and everything. But so one can't say law is an easy answer, but law can make a difference. And it has helped, you know,

it's progress in chemical and biological weapons to have a convention. But the ultimate piece is almost, you know, existential and philosophical. It is about are we able as humans to get beyond this, inherent tribalism we have and have a sense of survival. Because the way to change this, if we can change it, because while terrorists may be different, they may want to die, but most leaders of most countries, you know, don't want to die and they want to do the best or get the most for themselves, perhaps, but certainly for their countries. But they have a sense of survival. So if we have any prospect here of material progress, it's harnessing,

a sense of survival and then working that into the legal piece as well, obviously, of the policy piece. Okay, well, let's, I want to unpack this. Obviously, try and unpack it in, in, a reasonable amount of time, because as you say, there's a lot, there's a lot here. But if I were to, if, if I were to try and present the, the line of arguments briefly, and then ask you to comment on them. But the idea, as first, as we said before, the U.S. position is that there's no customary law. The second, they do recognize that there are rules of international law, and if nuclear weapons violated them, then they would be illegal. And so they recognize those two things, you know, under the rules of distinction, proportionality, and necessity, and maybe we'll

talk about those in a bit. and it then makes the case, well, actually, let's start there and then we'll, and then, and then, and then we'll go to the U.S. case and, and, and the, and the, and the International Court of Justice and move on from there. But so the U.S. says that there's no law, but recognizes that it would, that if it did violate such a law, it would be illegal, and, and, and that in particular, nuclear weapons would be unlawful under the rules of distinct, of distinction, proportionality, and, necessity and if the effects of the use would not be controllable and actually controlled during a nuclear strike. And so the United States's argument was that they could control the use of nuclear weapons in a very precise way. Now, do you want, that's a fallacy and maybe you want to talk about why. Right. I mean, that's a big piece of it. And that question, Lawrence, takes me back to sort of your opening sense of how does my work as a litigator, and for the last 15 plus years, as an arbitrator and a mediator, how does it relate to all of this?

And, you know, it is, again, this notion that in the rest of the world, we take all the legal stuff very seriously. What I did when I went to write the book, starting with the first edition, is I said, all right, how can I make the book as, credible and and you know try to anticipate and not have objections that might otherwise come. So the first objection might be, okay, you know, Charlie Moxley and the way he's describing this isn't accurately describing the law, right? I mean, I have to describe the law for what I do to be meaningful. So I had the thought, and this is me, this is my litigator side. I had the thought,

why don't I take the law from how the U.S. states it? I'm not going to go back to the truth. I'm not going to do my own independent research in the first instance. I'm going to take the U.S. statements. So that's how I've organized the book. And that's what I've expanded on in the second edition that just came out a couple weeks ago. You know, I take the law as the U.S. states it. What the U.S. says, and you summarized it, well, there's no specific rule on nuclear

weapons, but we recognize, and this comes up, I mean, across. innumerable statements of the law by the U.S. in different ways, which I could describe and I detail in the book, the U.S. says over and again, there is no, in its view, specific rule on nuclear weapons, but the general rules of the law of armed conflict and international law concerning the use of force, those rules apply to nuclear weapons in the same way they apply to conventional. That's the U.S. position, and that's not controversial. I mean, that's it. So then you say to me, well, all right, so where's the debate then? And the debate comes when, as you said earlier, and I think I alluded to it, any legal analysis, whether we're working on a securities case, an antitrust case, a complex commercial case, a health law case, you know, it's the facts and the law. And you have to get them both together. And so the project that I've been engaged on and worked on on the book for all this time is,

okay, here's the U.S. statement of the law, and then here's the not disputable, that clearly for the lawyers in attendance, you know, the summary judgment level, you know, certainty of facts. So when you apply the acknowledged law by the U.S. to the unquestionable facts, what's the result you get? And so that's where we are. The U.S., when it goes to apply the law it has acknowledged to the facts that are indisputable, my analysis and conclusion is it's in effect distorting the law or not applying it effectively. That's, I mean, that's my thesis. And if I'm right, then we're not really applying the law correctly and we're not compliant, you know, we're not in compliance. If I'm wrong, then all the stuff we're doing is lawful because, you know, the,

the argument is that we've reviewed everything legally, but they've reviewed it for lawfulness under an interpretation that in my judgment doesn't accurately apply the acknowledged principles to the indisputable facts. Okay, well, let's do the principles and the facts and try and be explicit about some of this. So the law, and which again, I briefly summarized it, but I'm not a lawyer, but the law of armed conflicts includes the rules of distinction, proportionality, and necessity, and their corollary, which is the requirement of controllability, the plot of use of any weapon. So do you want to explain what those words are, distinction, proportionality, and necessity?

Yes, and if you like, let me try to relate them to what we're talking. Sure. Let me first just describe them generally, and then we can talk, if you like, we can talk. about how they relate to the facts here. But the principle of distinction is that a state in its use of force can only use weapons that are able to distinguish lawful or combatant targets as opposed to civilians and other non-combatant targets. That's the rule of distinction stated very broadly. You know, you have to be you have to target it against military targets. and you have to be able to hit military targets.

The next rule of proportionality acknowledges what's obvious to everybody, which is there are going to be collateral effects. Nothing is perfect. And certainly in the fog and the horribleness of war, you're not going to have, it's not going to be perfect. There are going to be civilians in the way. So the rule of proportionality, and again, this is all very broad in general,

and there'd be 100 footnotes. But the rule of proportionality is, you know, that the effects on the civilians, the collateral effects on protected persons and objects can't be excessive compared to the concrete military value of the particular use. So, you know, okay, fine. You know, you're going to have some civilians and you're going to have some civilians killed but you need some reasonable proportionality. So that's that rule.

And there's another version of we could get to. if we, you know, it's another fabric of complexity, but, but that's, that's a fundamental version of proportionality. Could I say, would one way to frame it as saying that the collateral damage should not exceed the military damage? You better said than I did. Yeah, that's very direct. Thank you. No, I just wanted to think about it. Yeah. No, that, that's, that's, that's right. It's got to, right. It's got to be important and, and, and, and you can't have excessive, you know, And then there's a bunch of sub-issues, including how extensive can collateral effects be? And does a really big military advantage justify really, really big, you know, civilian effects, even if they're proportionate?

Or is there a limit within proportionality that they have to be secondary, indirect, and can't be beyond some reasonable extent? Okay, limit is nice. Okay, and then necessity. And necessity is a different rule. Obviously, distinction is sort of to protect in large measure civilians. You're going to hit the civilians. You're not going to hit the civilians. You're going to hit the military targets. Proportionality is to protect civilians in this sense of proportionality.

You know, it's not going to be disproportionate. Necessity is in a way more designed, although I'm oversimplicated, towards protection of the adversary, the enemy, right? You should only use the level of force that's reasonable in the circumstances. So, you know, if your objective is to take out a bridge, you shouldn't destroy the whole county is the rule of necessity. So each of these rules is an acknowledged rule, not disputed. Are these, what law is this court in? Is this the Geneva Conventions or is it some other legal?

What international body, where is this law contained? There are multiple sources of it. The two primary ones and this law is included, the four primary sources of international law, okay, is a convention or a treaty. It's like in commercial law a contract, right? And we know what they are. then there's an area of customary law, which is law that is not necessarily in a treaty someplace, but all the countries are essentially all the countries of the world recognize this point. So a customary law point may be embodied at some point in a convention, but it also exists as customary law.

Or you can have a convention on a new point of law that wasn't yet customary, but now it's in a convention. and arguably it can be so deeply entrenched after having been in the convention for a while, it could become customary law. But the most direct answer to your question is that these rules of law are in conventions and they're in customary law. There are some other sources, but I think in the first instance, those are the primary sources that answer your question, like where is this? Okay.

And so those three principles are supposed to govern war, probably rarely do, but are supposed to govern war combat. And in a violation of those, I assume you can be taken before the International Court of Justice. Well, I mean, that's Nuremberg, right? Yeah, exactly. Right. And we've had other, as you know, we've had war crimes tribunals in recent decades in different areas. And so, and we have the International Criminal Court now, which does as some cases. Now, let's go to this case, which I think most people aren't aware of in 1996.

I mean, it could have all been decided there, except I assume it wasn't. The International Court of Justice basically accepted the U.S. argument that its use was legal. Is that, could you describe that what happened and what the result of that was? Yes. It's truly extraordinary, right? And for anyone who gets interested, I mean, this is available on the website of the ICJ, the International Court of Justice. This case was brought by the UN General Assembly, and it asked, as it had a right to do under

the UN setup, it asked the ICJ to give an advisory opinion on what, whether the use and threat of use of nuclear weapons are lawful or not. They framed it in effect asking that question. They framed it more of can the use of these weapons or threat of use ever be lawful? That's how it was more precisely framed. And I'm not sure it would happen today, but in the mid-90s, all the nuclear weapons countries and many countries of the world took this. advisory case, which is advisory. It's an opinion by the court, but it's not the same as a decision

in a disputed case. It's not Biden. It is essentially advisory. The countries of the world took this very seriously. The U.S. took it very seriously. The U.S. went there with lawyers and from the State Department and Department of Defense and were lawyered up for it. And the other nuclear weapons countries were. Russia was there, China was there. And, you know, the extraordinary thing, you know, going back to my project, which is, what is the undisputed law here, we have all these briefs and the oral arguments by the U.S. where they acknowledge what the legal points are that they acknowledge and they talk about where they're in dispute. And so that was the case. It's necessary background to ask the question, who are the judges of the ICJ?

And they are appointed from different countries around the world. They have a group of them at any given time, and they're broadly representative of the world's legal systems. And there it is. And so they had this case, and the nuclear weapons countries came, and they, The U.S. and the U.K. worked very closely on this, and their project as to what the law was is really essentially the summary that I gave you, and actually you gave it from having read part of the, you haven't read the book, which is that, you know, the position was there's no special law on nuclear weapons, but the law of armed conflict and international law

and use of force generally applies to these weapons. And so then they argued it. And what was their argument. I mean, here, to me, it's an interesting point. The defense the U.S. gave in its brief and in its oral arguments, and I have a long chapter in the book on this, was, well, you know, it's not fair to say that nuclear weapons can't distinguish civilian and military targets. It's not fair to say that the results would be so disproportionate and you'd destroy huge numbers of people or that they're beyond which necessity. And they gave a reason for that. What do you think their reason was? Well, why don't you tell you?

The reason they gave, they, we, I mean, our government was, well, you know, there are these low-yield nuclear weapons. Yeah, that's okay. We can aim them precisely, and we can choose the yield levels and pick a low yield. And there's no question, right? I mean, you're going to have less effects from low yield. And if you had a small number of use of low yield nuclear weapons, the effects would be limited, right? You're not going to cause these existential things of where you cause, and I know you talked about this with Ann Jacobson, you know, you're not going to cause nuclear winter and everything. Yeah, okay.

Well, I'm just jumping to, of course, as you would be to jump in and say, but the nuclear weapons arsenals of the U.S. and Soviet Union aren't, and what now in Russia are not low yield. Isn't that something? Yeah. Isn't there something? Of our nuclear arsenal now, we have about 4,000 some nuclear weapons. And maybe 1,800 of them are so-called deployed,

although that's not that meaningful, because there's a lot that are undeployed. You could deploy real quick. Yeah. But of those 1,800, I'd ask the rhetorical question. How many are low yield? And 100. Yeah.

100. So that's okay. So that's what I was trying, when I was reading your book, I would think that, you know, I'm not a lawyer and I'm not a, judge, but you'd think that a reasonable person will be able to see through the argument

that low-yield nuclear weapons, which itself, as you point out, and TIPPIS points out, and maybe we'll get there, that even low-yield nuclear weapons are not do not satisfy the requirements of war, and will inevitably lead to higher yield usage. But even if you accepted that argument,

then it doesn't take a Supreme Court justice or a great legal mind or even a lawyer to recognize that the facts are that they're basing the legality on a hypothetical world in which we don't live. Yeah, I mean, it's absolutely extraordinary. There's a wonderful professor at Georgetown law, David Coplo, who's a person you might want to have on some time. But he wrote a review of my book, and he came up with a term for the argument you just made. He said that in effect, as I describe it in the book, it looks like a bait and switch

where we're kind of defending, you know, based on these low yield. But now what are we threatening in our policy of deterrence? We're threatening all these other weapons. So, you know, it's an extraordinary situation where I think our policies are out of line with anything that makes sense. You know, how to get through to people? I don't know. There's no doubt.

They're unwinnable. You can't fight a war with them and all of that. But those arguments, as you point out at the beginning of the book, those arguments haven't worked. And at least with the public or governments, the fact that there's no rational use, the fact that it's two scorpions in a bottle, whatever you pick seems to not work. Now, the court determined, this amazes me, the court determined because of the potential, of nuclear weapons to destroy human life and civilization and the entire ecosystem of the planet, the use of nuclear weapons would, quote, generally be unlawful, but it did not have sufficient

law or facts before it to determine whether the use of nuclear weapons, essentially precision, low-yield tactical ones, although the decision was somewhat ambiguous, you point out, would potentially be lawful in extreme circumstances of self-defense when a state's very survival is at state. So it basically said that it, and it further stated, they did not have sufficient facts to determine the validity of the arguments, the United States and other nuclear weapons states about low-yield nuclear weapons. The whole thing came down on low, the court didn't even address the issue of non-low-yield nuclear weapons or the fact that the dominant, at that point, in 1996, the arsenal was still somewhat bigger, I think, that it is now. And so,

So maybe there were 10,000 nuclear weapons instead of 4,000 each side, maybe it was five to 10,000 each side. I forget the numbers, although it was around then. Why ignore the bulk of the arsenal? What was your reading of why that happened? I mean, you can ask the same, you can ask the same question about the U.S. and the U.S. lawyers. How do you do this, right? How do you defend based on, well, we can use low yield? The court, you know, had that statement, and you read part of it.

The court said the use of these weapons would, quote, generally be unlawful, right? Yeah. Now, that's a broad statement. One can debate what that means, but it sounds like it means that they usually, or most of the time, they'd be unlawful, right? And then the court got into a discussion on the low yield. They said the U.S., they said some states, and it was the U.S. and U.K., and others, said, well, low-yield ones can work. So the court had a quote. I have a quote in the book in Chapter 3 where, you know, I go through all this.

The court said, well, you know, no one gave us a basis to evaluate that. So we don't know if you can use low-yield in a way that'll distinguish or not. You know, and as you say, one can argue, you know, and I think it is the case that even low-yield, nuclear weapons to be used or threatened to be used would be unlawful. But the court here, and this is just opinion. This is not fact. And I'm not an expert. You can find people more expert on the ICJ, right, who have spent maybe their life dealing with the ICJ. But there's always some political element to law, right? And you have a court, made up of people from various countries.

It was almost as this, they said, you know, these things are unlawful and the low yield may even be unlawful, but then they throw in this self-defense thing that may be in an extreme circumstance or not unlawful. They didn't limit that expressly to low yield, so one can interpret that different ways. And then, as you know, I mean, you've seen that there were multiple opinions by different judges of the ICJ who interpreted differently. You know, some say, oh, no, these weapons, even low yield. could never be lawful. And there was a close split on the court, right? If, you know, the legal issue

you get to, and this is a, this is a legal issue that is debatable, right? I can't tell you, here's the law. But the question is, what level of unlawfulness of a potential weapon do you need for the weapon to be per se unlawful? Yeah. Right. The opponents of these weapons say they're so characteristically indiscriminate and disproportionate and unnecessary that they're going to be unlawful in virtually any circumstance.

The judge on the court, and I think this is, the U.S. judge on the court, Stephen Schwebel, who is now, he's off the court, he's now a prominent international arbitrator. Okay. And I, you know, I've met him in that context, although I haven't served with him. But he wrote an opinion,

you know, a partially concurring, partially dissenting opinion. I forget exactly how he styled it in the ICJ case, the advisory opinion. And he said, well, it depends on the facts. But what he said was extraordinary. He said if you had a use of a weapon that could, could, not that it would, but they could result in extreme numbers of deaths and urban use and and bad effects. That extreme effects, that can't be lawful. But then he said, there's two scenarios.

One is a nuclear shot against a ship at sea or submarine in a remote area, not near any civilians, that has multiple nuclear weapons on it. and you could attack it with a nuclear weapon and take it out. He said, and I'm not quoting his exact language, but he suggested that could be fine. And then he said, what about you have a military target in the desert someplace or in the remote area, but it's not as remote as the sea? He said, maybe there. You know, he put that in some indefinite thing.

So, I mean, that was one judge's. That was Stephen Schwabels, as I understand it and remember it, his take on, how you square the court's ultimate decision. But as it is, because of that phrase that you quoted from, where the court said, well, we can't say whether in extreme circumstance, the use of these weapons would be law for or not, it's thrown in ambiguity. So it doesn't make the court's decision, you know, definitive.

And it gives a leeway to the nuclear weapons countries, which is what the U.S. is done and the U.K. has done and other countries have done, while purporting the file of the law to say that, well, you know, we're within all of this and we're compliant, and the ICJ didn't say we can't. It gave leeway, it gave ambiguity. And I think it, from the other point of view, from the other side, I think your argument is that it gives you an opportunity to point out why one has to go beyond that. And you said that later, well, relatively during the book, you say that, okay, the position, you know, the U.S. position and the ICA position are the starting point of your book. And then you're, so that history takes you, if you wish, to the beginning of why, of not only why he wrote the book, but what your analysis is.

And you review the applicable law, which we sort of already done. I don't know if you want to expand on that. There's sort of three components. One, reviewing the applicable law. Two, applying it to widely recognized and ostensibly incontrovertible facts. So I want to go there. And then lastly, and this is, I think, the second part of your book,

you review certain additional rules and principles of international law. So I want to go through those. And so the starting point is where we've now discussed, the U.S. position, the ICJ position. And I think we've also discussed. the applicable law, but maybe you want to go beyond what we've talked about. So let's let's do those three things. The applicable law, the recognized in a sense with the incontverteable facts of nuclear weapons and their effects, and then the additional principles. Okay. Yes. And you've

I have to say, Lawrence, that I've done a number of podcasts and interviews, but you've really gotten into it in a more in a serious way and you have put your finger on it. Thank you. We covered the first two points, the applicable law and the facts. We largely covered it. Two points I'll add briefly and then go to the third point that you mentioned. On the applicable law, we talked about distinction or discrimination, major principle acknowledged. We talked about proportionality and necessity. We talked a little about controllability. And here, I've made an argument. I mean, it's an argument, but it's based on the exact language the U.S. uses in a number of its military manuals and statements of the law.

When the U.S. defines these rules of law, you know, it says you can't use a weapon unless you're going to be, you're going to distinguish, you know, you're going to be discriminated and proportionate. And there are statements in our own acknowledgments that if you have a weapon whose effects are uncontrollable, it's obviously impossible to make. the judgment that we're going to distinguish or be proportionate or be within necessity if we don't know the effects. So that is a key issue. There's a, there's two other principles, really, on the central law that I guess I said one, but there's really two that need to be reached. One is the rule of precaution and the other is reprisals. On the rule of precaution, there's a broad rule which the U.S. acknowledges, and it's in the conventional, the conventional law, the Hague law, and Geneva law, that a state has to take reasonable precautions in its training of its personnel,

its acquisition and placement and use of its equipment and so forth, that it will comply with law. So, you know, it's great to have this acknowledged law, but states have a duty to comply with it and to take planning efforts. So we purport to do that. We purport to review, and I have it in the book, and there's literature on this, we purport to review, and there's a, and I have it in the book, and there's literature on this, We purport to review new weapons at the acquisition phase and have lawyers who know this area of law, you know, give an opinion that they're going to be okay. So, I, you know, I mean, I have a challenge on that because I don't think they're applying the law right when they do it. But this effort is being done.

I mean, I've gotten stuff under FOIA that shows how it's been done. So this rule of precaution is important. And the rule of the law on reprisal is very, very important. because it's the get out of jail call for any country that wants to do a use of a weapon that would otherwise be unlawful. They say, okay, law reprisal says, I can do something that's unlawful if my adversary did something I'm lawful. But even there, there are legal prerequisites to lawful reprisal. They have to be proportionate. They have to be within necessity.

They have to be limited in purpose to make the adversary return. turn to compliance with law. Wow. This is new to me too. I mean, it shocks me. So you're saying the biblical eye for an eye is the rule of law that, you did something lawful, so two wrongs do make a right when it comes to international law? There's this rule of reprisal, and it permits doing things that would otherwise be unlawful. But you have to listen to the second part of it. There's legal prerequisites for it. And if you're going to use a nuclear weapon that's you can't control its effects and the effects are uncontrollable, you can't be, I argue, satisfying the prerequisites for lawful reprisal because you can't be within realm of proportionality or necessity or within the limited purpose.

But yes, I mean, that's the ultimate argument. I mean, is that the argument behind why the policy of mutually assured destruction is not illegal, namely that if attacked with a first strike, a reprisal which will destroy the other society's civilization as in, even though there's no, there's no controllability, is there, if there's an uncontrollability, is there, if there's an uncontrollability, attack on you, you can do an uncontrolled attack in response to to assure that the other society is destroyed as yours has been or will be? That may be the realpolitik, but that's not the law. The law is that you can do a reprisal, but it has to be within those limits that I described

earlier. And it doesn't matter if the other side did it. You can't do it lawfully if your use of it can't be lawful. So hold on. I'm sorry, but I'm going to sound like a lawyer here, but maybe. But a moment ago, you said that you're allowed to do an illegal thing if the people that attack you do an illegal thing. So if you're attacked in a massive first strike,

which is uncontrollable and therefore illegal, kills most of the population and destroys the environment. Then does the law of repraisal allow you then to do a similar illegal, thing in response? I mean, does that justify mutually assured destruction? Or am I missing something? Yeah, it justifies something, but it only justifies a level of response that, proportion to that's that's necessary to get the other side

back into compliance, which is probably impossible after that. Yeah, because there isn't any other side, and there isn't on your side. Well, the other side's still there. You're not there, but but can you destroy them? That's beyond the scope of what reprisal would permit. But you have put your finger, you know, very effectively on the ultimate argument. This is the ultimate argument. If you're able to get one of the guys, you know, one of the people, men, women from the military establishment come in,

they'll say at the end of the day that, well, if the other side breaks the law, we can do it, and that's reprisal. But I don't think they'll say that we can respond against civilians or we can use mutual assured destruction. I think that is so broadly recognized that you can't do that, that that's an inherent limit. So you would say, and I don't want to, well, I will get to, well, the term. I think it's a key point. Well, I think we'll talk about it a little bit more in this moment. But what you're saying is that it is therefore widely recognized legally by courts and by the governments involved that the central policy of nuclear nations, in particular the superpowers being China, U.S., and Russia, you know, and Russia, and Russia,

and its allies and their allies, that principle being mutually assured destruction, which has been the principle for as long as I've been alive, I think, that that principle itself is illegal? I've got to go back and define terms a little bit, okay? Good, good, I like that. Okay. The one term is deterrence and the other is mutual assured destruction.

Yeah. And there's any number of others. But I guess the third one is. And they're different terms. And I wanted to get that deterrence. But the point is mutually assured destruction is the argument that's used as deterrence, right? Yes and no. Okay, good.

And here I really need to refine it. There's something, I mean, let me build it up a little because I think we may end up there. But the U.S. policy for some time has been war fighting. You know, we can use these weapons lawfully. We can hit military targets with precision. And there was a statement by the Obama administration. There's a thing called Nuclear Poster Review. And each new administration does them.

And you can find them on any, you know. And the Obama administration. And so they come out and then there's a Secretary of Defense statement that is, is the employment doctrine. It's called the employment something for building on the nuclear posture review. And there was a statement by the Department of Defense on the Obama Nuclear Poster Review that we use war fighting capability, in effect, not mutual assured destruction. We are going to target military targets. And if you talk to responsible U.S. officials or you'd probably probably get ex-officials who would talk on the record.

I think that would be, I mean, I'm sure that would be their position that we target bona fide in military targets. But it's a flawed argument because military targets are very, very broadly defined to include anything contributing to the war effort. And so New York, Washington, Moscow, Petersburg, I mean, everything is a military target in that sense. Well, it's a matter. It's a, it's a, it is. And it and it's sort of the large scale version of what we're seeing, unfortunately now and in the arguments about what's going on in Gaza, whether a military, whether, whether if terrorists happen to be housing themselves in a location that happens to have civilians around, whether that's a military target. And that's a small scale version if you're talking about 20 or 100 people. But in, in the case of nuclear weapons, you know, there's,

little doubt, I think that one would consider Washington or New York and its harbors and potential military target. And then it happens to be that their military target houses 10 million people instead of 20 or 30. But it's the same argument. It's just a much bigger. It's the same argument. And I think what we're talking about is the core of, in a sense, the ultimate issue.

And one way to look at it is to step back and say, and you ask the question, okay, and mutual assured destruction ever be lawful. I said, well, we pretend not to follow that, but because of military targets, we're going to be hitting civilian areas as well. But you can ask the question, can you? Because mutual assured destruction is targeted at civilians. Yeah. I mean, that's what it is. It is. And I don't think if you had a recent former official that they exactly acknowledge that mutual assured destruction is still our policy, but it seems that it is. I make the case that it is.

But the argument is it ever lawful to target civilians. And here's an extraordinary thing. The principle can be stated as a broadly acknowledged principle that it's unlawful to target civilians. The U.S. has a position. And this is not going to make any sense to you. But the U.S. has a position that, well, you can't target civilians, but it's different when you get to this thing we're talking about now, which is reprisals. And we don't want to say that you can't target civilians in reprisal, although we'll say it would generally be, and I swear there's a quote to this effect, you know, it's not illegal to target civilians, but it's inappropriate for something like that. So, you know, there's a rhetorical position and, you know, and the counter argument is, you remember, I talked earlier, customary law, generally accepted principles of law. The ICRC, as you know, the International Center for the Red Cross is in a way the preeminent, or one of certainly the preeminent sources of statements of international law concerning armed conflict. And they, and I have a whole, you know, analysis of the.

this in the book. They go on, they have statements that say you can, you know, it is, it is now customary international law. Well, they may even hedge it a little too. Can you target civilians? They hedge it a little. They say it appears to be the case, something like that, that you can never target civilians. But they, they have a limit on saying it's customary, that it has to be very broadly accepted. The U.S. has taken the position I described earlier. that maybe you can target civilians in reprisal. You know, my argument is you can't. It's broadly enough accepted.

You can never target civilians. But I can't pretend that that's a definitive legal issue that is, you know, that one could give an opinion on if one were a lawyer asked for an opinion letter. Okay. Well, okay. So this is the law, which is already murky. At least that's the applicable law, and that's the environment in which one, if one is interested in a legal decision, one has to work within. But then there's a, then, then, then, then it's applying it to widely recognize and a sensibly inconvertible facts and principles.

I'm sorry, widely recognized an ostensibly inconvertible facts as to nuclear weapons on their effects, what makes them different than other weapons. one of the things before we go into the I mean there's a lot of facts you would argue and a lot of the book is spent on looking at the risks of deterrence and the existential nature and known nuclear weapons effects

which could be well beyond those intended by the users and we'll get to some of those but the first one which is interesting to me was it was that unlike other weapons nuclear weapons require an evaluation based on probabilities because you have to remain theoretical because the ultimate case is one where

you won't you won't be able to analyze it after the fact there won't be anyone around to analyze it. You have no luxury of Heinzstein. So you have to look at probabilities in advance. And those probabilities often miss many, many side effects of nuclear weapons. So maybe you could talk about that. Yes. Thank you, Lawrence. And let me go back. I mean, to answer that, I have to go back to the second part or the third part of the question you asked immediately previously, where you said, okay, I go and I do the analysis based on established law as recognized by the U.S. and the facts, but then also on additional principles. And I didn't answer about additional principles. And that's part of the point you just raised now, too. Yeah. Okay. So my analysis of the law is twofold. The first

part is where I took the law as stated by the U.S. so as to make it non-controversial. But there's also areas of international law that the U.S. hasn't acknowledged and doesn't, you know, it hasn't denied them, but it just in its arguments on lawfulness of nuclear weapons, it just doesn't apply this law. And there's several principles. And one of them, you mentioned earlier. I mean, you raised it in a question you asked me about, okay, so you're going to use low-yield nuclear weapons.

might they be lawful? We talked a little about that. And then you said, what's the likelihood of escalation? Well, I mean, I have several chapters in the book where people who have been part of our inner sanctum of nuclear weapons policy and planning sort of after they're out of office. And I guess it's hard when they're in office. Because to maintain deterrence, you've got to say, we are ready, willing, and able, and we're going to do it. When they get out of office, what has been acknowledged? The basic premise of deterrence as we have it today because the people who write it don't want you know i mean they're not crazy and they don't want to sound i mean i mean i don't want to get too vernacular uh they

don't want to sound irrational they want it to be reasonable so the argument is building on the argument before the icj we'll use low yield and you know we'll have intra war deterrence intra within the war deterrence so we'll use low yield and the other side will use low yield and we won't get into the huge effects. And, you know, one can talk about the practicality of that. I collected in the book, sort of like when Annie Jacobson did in her book where she's, you know, she's doing interviews. I mean, I collected all these statements by our military insiders saying that this is an illusion. And there is the nuclear taboo. There's the Rubicon, and once you cross it, you're going to get escalation.

And on this low yield thing, I mean, I had made the point to you that we only have of our deployed nuclear weapons, 100 of them. The Russians have a different strategy here, and they have more eggs in their low yield nuclear weapons basket. And I don't have in my head the exact number, but they have a much larger number of low-yield nuclear weapons. And they have a policy that talks about using low-yield nuclear weapons. So this brings you to the question, which you,

You'll be asking me a minute if I don't raise it. Yes. You know, what's the legal effect of the likelihood of use of nuclear weapons? And the question there is, what is the legal standard as the causation, you know? If we use a low yield nuclear weapon against state, you know, X, and then they come back with a high yield and a more expansive response, even if you assume that the low yield use was low. which I wouldn't assume, but would we be responsible for the target, the target's response? And the obvious answer would be no. It's a different decision maker. But if one goes in research is the law of causation, and this gets into your question about probabilities and so forth,

if the state originally using these weapons knows that the other side is going to come back, and it's within the contemplation and within the foreseeability, then you have a very interesting legal issue about which not a lot has been written, but there are ways, you know, there are important bases to argue that issue on both sides of the question, but there's a strong, I think, cogent, I think, basis to argue that even that the escalation, if you know the other side's going to foreseeably escalate, that that has to be part of the legal analysis, that if you or I or JAG lawyers, advising the military or the president or the executive, can they use nuclear weapons lawfully if that question were to be asked?

I think there's a good argument we'd have to include that. But even, even, yeah, go ahead, sorry. Well, I'll interrupt for a second. I don't want to interpret what I thought, but I can't help. But these are hypothetical discussions we're happening, and people may find they're too hypothetical. But, you know, it's interesting that for every example you've given in the case of New weapons there are concerned you can think about real case real conflicts where these this question happens now and and i'm not going to get into it and i'm not going to get into a discussion of

sides on this but again we are talking at a time when there's a lot of well when there's actually protests going on right now outside the the democratic national convention about about Palestine and and and one could argue that was an exact case that that the initial our October 7th provocation was done with full recognition, there would be a much larger response. And that question, when one thinks about the legality of that, is an issue. But the difference being that the stakes, I mean, obviously, if the stakes in Gaza, they're real and dramatic. but one is talking about a similar legal issue about knowing you're going to provoke and knowing that there's a large response, but now where the large response could kill, you know,

hundreds of millions of people, not just, not just tens of thousands. Yeah, I mean, it's amazing. You've seen in the book and you've seen in the literature from the prior work I know you've done various studies where people have modeled out. the effects of these weapons. Yeah. And there's a guy at Rudkers, Alan Robach, I'm sure you know his name. He was part of a group that did a report that came out in, I'm going to say, August of 2022,

a group of scientists from around the world, I mean, eight or nine, a big group. And they modeled this, their expert in this. They've been doing this for decades, various members of that group. They modeled the effects of a wide-scale use of nuclear weapons. between the U.S. and Russia. And it came to this whole thing about nuclear winter because, you know, if you have a wide scale use,

you put all this debris up in the air, you block out the sun, you destroy agriculture for a period of time. And their number, I mean, what do you think their number was on the effects of that? I mean, it's not hundreds of millions. It's billions.

Oh, I know. It's five billion. Yeah, in fact, that number was five billion. I mean, I'm not. Yeah, we'll get to the nuclear winter argument where you don't even need a large scale exchange between Russia and the United States.

As you know, recent studies have suggested as much smaller scale exchange, say, between Pakistan and India, which is always, unfortunately, on the possibility on the horizon, could kill up to a billion people in the long run in terms of its agricultural effects. Yeah, absolutely. And so, but. Yeah, and I think this goes back to the question you asked a minute ago. I'm sorry to interrupt. No, no, no.

But you had said, what about probabilities and what about effects? But this is exactly where all this kicks in, right? Because we know you're going to have radioactive fallout. We know that if you have the nuclear explosion above a certain altitude, you're going to have electromagnetic pulses released that could destroy electronic equipment on the ground, possibly across an entire continent. And we know that you could have nuclear winter, right? So the legal question, the factual question becomes, you know, as you say, how likely are these and when do they kick in?

Let me ask you another question though. I was going to get that before. When you were talking about modeling, my understanding having talked to people and read things, that no model, no modelers who've looked at a nuclear exchange. have come up with an ultimate end that doesn't end up escalating to be essentially existential. That every time nuclear war planners have looked at nuclear war planning, it essentially escalates to be catastrophic and existential. Is that true? I have read that, too. I have it in the book. It's in the literature that the U.S. does the –

does these games. They do these games. And what happens? Always put up. Yeah, I mean, what happens in this scenario or that? And the literature is that they tend to escalate. People escalate. They don't, they don't think.

At some level, I'm afraid that this is the problem, that unless we get control of this, there's a semi-automatic reflex that is likely. to happen. Yeah, well, and you know, I think yeah, exactly, but you've, one thing we haven't talked about, and one of the reasons for doing a second edition of the book in 2023 is that we're now in a climate. In 2000 people didn't talk this way, but we're now in a climate where people are actually contemplating the use of these weapons in real cases, limited use, quote unquote, and small and limited size,

technical nuclear weapons, etc. And where there's no treaty discussions, there's no real discussions between nations. We're now in a time where these issues are really being talked about as if these are real war planning in a real, not in a hypothetical world, but in the world today. And yet no one is addressing the greater issue.

And so there's a new urgency, which is, I assume, the reason you produced a second edition of this book. Yeah, I mean, I think you're exactly right. I think it's receded from our consciousness, right? I think, you know, at an earlier time during the Cold War, we were all aware of this and acutely aware of it. I have been teaching a course on nuclear weapons law at Fordham Law School for over 20 years. And, you know, the law school has wonderful students with great background.

and smart and many of them go on. You know, they all go on to careers that are interesting and with great potential. But I see, and I see it in my own kids, the level of awareness of the risk here, it's no longer front of consciousness. And so I am afraid, Lawrence, that this is true even for the policymakers. Yes. And the military leadership. Who've grown up and who didn't grow up in many of whom, although some of the older people

did, that's many of whom didn't grow up in an environment where the, those, you know, the stark reality of world destruction apparently was, you know, was all over the place in the 60s and 70s. And they didn't grow up with that. And there are discussions about this and, and, and, and a, you're, and it takes a new urgency. And, and people have argued to me, and I noticed that one of the things you talk about is the uncertain continuation of the luck of the past. when I've written about this, I inevitably get people coming back and saying, well, if we didn't have nuclear weapons, we wouldn't have the peace we've had. And moreover, we've had them for 76 years and there's been no nuclear war. And so, you know, as I guess Robert McNamara pointed out in his forward,

you know, we were lucky during the Cold War and we didn't use them, but that luck cannot be counted on. ever. And we can't count on luck and maybe not on deterrence. And I think your argument is the only way to try, well, at least I guess if you're often say if the only tool you have is a hammer, everything looks like a nail, you're a lawyer. But at least the tool of law might be one way to take us back from the brink. I think so. Yeah. I mean, I think that statement by Robert McName, which which came to my mind when you started talking, but you remembered it that we've been lucky is exactly right. And it's exacerbated because the time limit, you know, the joint chiefs

of staff tell us and the literature tells us the time limit is, you know, it 10 to 20 minutes. If the president is told there's an attack coming in and many of our nuclear assets are fixed, vulnerable, unprotected, very destabilizing. And so there's a risk. I mean, as you know, we've been saved from near misses a number of times by human intervention, exercising judgment, that this is not what technically it looks like it is. But sooner or later, and with AI exacerbating, you know, raising the risk, we won't have that human in the loop to the same extent. Yeah.

Yeah. I will say, by the way, I will say in one disagreement, I'm not always. sure that having humans in the loop is a good thing. It sounds like it. And I know the cases, numerous cases, the famous one in Russia, where a reasonable person didn't obey orders or didn't bear rules in order to, because he realized what was likely the case. I like to think that any reasonable AI would at least be able to say, this doesn't seem, we're seeing, we're seeing an attack. It doesn't, it doesn't smell right. And so I like to think if there was an AI. You know, I'm worried about AI as much to anyone else. Well, maybe little less than some people. But that

a reasonably trained AI might make a decision that might even be less emotional than a human saying, look, this doesn't smell right. We need to get more information before we act. But who knows, who knows what would happen. And unfortunately, we can't wait to find out. And I think that's, that's part of the problem. And it's, it's one of the reasons why every possible mechanism to kind get some rationality to a situation that is inherently irrational. As SIP has pointed out, and anyone who's really seriously thought

about strategic nuclear weapons, that, as he's pointed out, that nuclear weapons aren't even weapons. Ultimately, ultimately, they cannot be considered to be weapons because you cannot have the, have the, the, a weapon allows a retaliation and, and, and allows a certain set of rules, but with nuclear weapons, you, you, you don't get those. And so they can't be, they ultimately

cannot be treated the same, on the same footing as conventional weapons, by their inherent, inherently, because of the risks associated with them. Right. I mean, there's the notion. We talked earlier about, you know, mutual assured destruction. There's a term, and I think that Alan Robach in his group may have been the ones who initiated self-assured destruction, sad. And it's the notion that, you know, beyond a certain level, a country's use of nuclear weapon, it's going to reverberate back on the country. The radiation will just blow back in or something. And so, I mean, I think that's what cost the SIPPUS. I mean, I remember, you know, working through this with him. You know, a weapon is something you're going to use to defeat the other guy.

Not to defeat yourself at the same time. Yeah. And you point out two examples that are crucial, and I want to stress them. The fact that even a limited nuclear war can produce a side effect through the injection of large amounts of dust high into the atmosphere that could affect agriculture for a decade. And at least not Carl Sagan's, which wasn't right, but more recent, you know, a few years ago, A large group, a number of physicists did a detailed analysis with more sophisticated numerical modeling of a 100 nuclear weapon battle between China and, I mean, between Indian

Pakistan and found that they thought that it could produce up to kill up to a billion people over a decade because of its effects on the atmosphere. And then the second one being electromagnetic pulse, which I, which I did, you know, talk about also with Annie Jacobs. And the fact that a single nuclear warhead. And now I wrote a piece recently on how both the United States and Russia are now talking about about space as a playing field for weaponry and using weapons to attack satellites because we depend on satellites so much that a single nuclear weapon exploded above the continental the United States could in principle destroy a lot of the electromagnetic electric infrastructure.

And that includes the infrastructure governing plants and power. and fuel and so that you've got this self-destruction whenever you when ever use nuclear weapons that you can't inherently control. And when you come to McNamara and feeling lucky, I can't remember if I use this analogy with Annie Jacobson, but I certainly always occurs to me because I like the Clint Eastwood movies, the dirty hairy movies I used to watch, where you used to look at a, look at someone and, you know, say maybe maybe the gun is empty or you're feeling lucky, punk and every second of the of the day we have to yeah we've lived 76 or 78 years or whatever now without nuclear weapons but are we feeling lucky and that's the question and and and if we have to

rely on luck that luck sometimes runs out and maybe we should rely on the law and i and i and i can't do justice fully to the to the detailed arguments you've presented the book about the risks about the inherent existential risks and how those invalidate a number of the legal arguments. But I do want to end, I do want to end with this question which you say you get the first question you're asked, the so what question? And you say, what difference would unlawfulness make since the weapons cannot be uninvented? This is the inevitable question, the one I'm asked, most are asked by all types of audiences as I've spoken on this issue over the years. This concern must be addressed if the matter is discussed in this book are to have any

practical significance. So I want to give you the last word in that regard by answering the so what question. That is an ultimate question, obviously. We have the United States' answer before the ICJ on a repeated basis. And I have the quote, I think, in the introduction and in multiple places. The U.S. our position is that we follow the law. So if somebody reads my book and says, hey, maybe Charlie has a point here, then they have to change their policies. I mean, we say we would do it differently if the law were recognized, right? And so, but you do get the argument back. I mean, I've worked with people in the military and people at the Air Force Academy, you know, and a question we get back is, well, but the other guy doesn't care about the law.

So what good is the law if the other guy doesn't? And my answer to that, is what I said earlier. I mean, you know, human survival. I mean, governments don't tend to be, aside from occasional, irrational leaders, don't tend to be irrational and tend to be self-preservatory. So if the discussion that Lawrence,

you and I have been having, if we're on point about what the risks are, then it is indeed in the self-interest of our country and other countries to ameliorate these risks, right? I think the problem is we've lost the consciousness of it, and so people are acting irrationally. Well, and again, I'm probably about this up in my other discussion with her,

but what you've talked about is assuming your adversary is going to act irrationally or negatively is the heart of the prisoner's dilemma that two people can end up acting irrationally when they're not in communication with each other, and both assume the worst in the other. And I think the only resolution of that, and maybe it's through the legal means, is for those two parties to actually talk,

to discover, to act rationally, and disguise maybe that it's in both of their interests to act not just legally, but rationally. And that's something that's sorely lacking at the current time. I think that's right. And doesn't it come down to what is one's theory of security? does one think security inheres in hegemony being stronger and more powerful, or as long as these nuclear weapons are with us, is it not mutual security?

And we're secure when the other guy feels secure and vice versa. Absolutely. And look, I think I'm a big believer in a thousand points of light in many different ways. I've spent a lot of, oh, I've spent some of the fair amount of my time on my career, trying to explain the dangers of nuclear war. And it's one way to hopefully, I've always thought it might hopefully mobilize the public. It hasn't particularly, I'm sad to say. But I love every approach that's possible.

And if an approach that is a legal approach could work, it's great. And I encourage you, and I applaud what you've done. The argument, I'd never heard the argument that one could somehow use legality instead of other things to argue that we should not, that no nation. should be using nuclear weapons or stockpiling nuclear weapons or using nuclear weapons for deterrence. I think the argument is intriguing. Again, I'm not an optimist, but I think it's worth presenting, and I'm really pleased that you have done so and done so in a way that, you know, clearly people have some significance who've dealt with this to their whole lives, like Billing Perry and McNamara and

others and Cypice, have recognized as a useful approach. So it's been an interesting reading this and learning it about the legalities. It's fascinating for me and of course, often frustrating because as I as occurred in our discussion, it seems so obvious that the legal use of saying that we're going to use small-scale tackle nuclear weapons when our entire arsenal is essentially large-scale is, you know, these things need to be discussed and raised, and I'm really happy we had this, I had this chance to discuss with you and had a chance to see you raise these points, which I thank you for having done. Thank you very much, Lawrence.

Thank you for really the probing questions, having read them and understood what the issues are. Well, it's my, I was going to say it's my pleasure. It is my pleasure to, it's always my pleasure to learn, and I learned a lot, and I hope our listeners will as well. So thank you for taking the time to be with us. Thank you so much. Hi, it's Lawrence again. As the Origins podcast continues to reach millions of people around the world, I just wanted to say thank you. It's because of your support, whether you listen

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