The reasons why members of Congress are liable to face criminal indictment
by the ICC in the aftermath of a U.S. nuclear attack on Iran are:
Furthermore, radioactive fallout from a U.S. nuclear strike against Iran that
spreads and kills citizens of an ICC State Party would make U.S. citizens involved
in such action subject to the Court's jurisdiction. Afghanistan,
Tajikistan, Georgia, Cyprus and Jordan are State Parties to the ICC and
not far from Iran. According to the Union of Concerned Scientists, a nuclear earth penetrator "would produce massive amounts of radioactive fallout and potentially
kill millions of civilians" spreading "more than a thousand miles." According
to a report by the National Academy of Sciences, "the operational
commander could warn of a nuclear attack on an HDBT (hard and deeply buried
target) or could time such an attack to take advantage of wind conditions that
would reduce expected casualties from acute and latent effects of fallout by
factors of up to 100, assuming that the wind conditions were known well enough
and were stable." However, what if wind conditions are not known well enough
or are not stable?
The list of 23 European countries that could take custody of visiting members of Congress
indicted by the International Criminal Court is given here,
to assist members of Congress in their travel planning. And don't forget the 22
Latin American and Caribbean states.
The specific points of Article 8 that would be applicable in indictments of
members of Congress are:
ibid (xx) "Employing weapons, projectiles and materials and methods of warfare which are of a nature to cause superfluous
injury or unnecessary suffering..."
Furthermore, the court may take the broad view that the individuals responsible
for breaking the 60-year old taboo against the use of nuclear weapons bear direct
responsibility for the longer-term consequences of such action. Those are likely
to be: (1) Demise of the Nuclear Nonproliferation Treaty resulting from the
U.S. use of nuclear weapons against a non-nuclear-weapon-country party to the
NPT; this will lead to many more countries acquiring nuclear weapons in the
coming years and to heightened global instability; (2) Likelihood that other
countries will follow the U.S. example and use nuclear weapons in regional conflicts
for military expediency; (3) Escalation of regional nuclear conflicts into global
nuclear war, leading to casualties in the hundreds of millions and potentially
to the destruction of civilization.
As we enter the brave new world where use of nuclear weapons is commonplace,
there will be plenty of time (while there is still human life on the planet)
to initiate Court proceedings against members of Congress. "The crimes within the
jurisdiction of the Court shall not be subject to any statute of limitations"
Congress Provided the Weapons
Article 25 of the International Criminal Court Statute holds anybody that "aids,
abets or otherwise assists" in the commission of a war crime criminally responsible,
"including providing the means for its commission." Article 27
explicitly includes "a member of a Government or parliament."
According to the U.S. Constitution, it is Congress' responsibility "To raise and support Armies,"
and to "provide for the common Defense." Accordingly, every year Congress
discusses and then enacts the Defense Authorization Act, providing the funds for the expenditures of the Department of Defense. One section of the Act funds the National Nuclear Security Administration,
that is responsible for the U.S. nuclear weapons stockpile, in particular "including the ability to design, produce, and test [nuclear
weapons], in order to meet national security requirements." The Act also
specifies the salaries to be paid to personnel involved with nuclear weapons
and "nuclear career annual incentive bonus."
In the latest fiscal year, Congress provided $6,433,936,000 for nuclear weapons activities.
In previous years, Congress funded the research, development
and deployment of the B61-11 nuclear earth penetrator that was
incorporated in the stockpile as a standard weapon in September 2001. There
has been widespread speculation that B61-11s will be used to target Iranian
underground facilities , , .
The nuclear weapons that will be used in a nuclear strike against Iran are
Congress' nuclear weapons. They will be launched by members of the Armed
Forces whose salaries are paid by Congress, and whose activities Congress is
supposed to regulate.
The Uniqueness of the Current Threat
Nuclear weapons have been around for over 60 years,
and it has always been solely the president's prerogative to decide on their use. However,
nuclear weapons were always considered weapons of last resort, to deter, respond or preempt a devastating
attack from a nuclear country. It is only during the Bush administration
that these nuclear policies have been radically changed to make U.S. nuclear weapons "another tool in the toolbox."
Starting with the Nuclear Posture Review of 2001, the U.S. has changed both its nuclear
policy and its nuclear force structure to serve the purpose of defeating any potential adversary, whether or not it
possesses nuclear weapons or any other kinds of weapons for that matter. For
example, Pentagon guidelines now encourage military commanders to seek presidential authorization
to use nuclear weapons "for rapid and favorable war termination on U.S. terms,"
"to ensure success of U.S. and multinational operations," and "to demonstrate
U.S. intent and capability to use nuclear weapons." Nuclear and conventional capabilities
have been "integrated" within the U.S. Strategic Command structure for "the most efficient use of force."
The radical nature of these changes in policy and force structure
can hardly be overemphasized. The firewall that always existed between
nuclear and non-nuclear weapons has been obliterated without leaving any trace,
single-handedly by the Executive, without consulting either Congress or the
American people. Congress should have demanded its right to approve or
reject and thereby reverse these changes, but has not.
And the reason why the firewall should be there still exists, as towering as
ever. Nuclear weapons are weight for weight million-fold more powerful than conventional weapons,
and the existing nuclear arsenals can wipe out humanity many times over.
Once we start using nuclear weapons again, there will be no return.
Congress Cannot Claim Ignorance
Article 30 the ICC Statute states
that "a person shall be criminally responsible and liable for punishment for
a crime within the jurisdiction of the Court only if the material elements are
committed with intent and knowledge." Furthermore, it states "In relation to
a consequence, that person means to cause that consequence or is aware that
it will occur in the ordinary course of events."
It will be impossible for members of Congress to argue that they funded the buildup
a 6 trillion
dollar nuclear arsenal (including over 6 billion for the last fiscal year) without the "intent"
of using it against non-nuclear countries, after the aforementioned changes
in U.S. nuclear policies and force structure. These policies were announced in
the Nuclear Posture Review delivered to Congress in December 2001,
in the Pentagon Doctrine for Joint Nuclear Operations of 2005 and in
a variety of speeches and other documents. The press has
reported extensively about these developments. These changes are analyzed
in detail in the Congressional Research Service Report for Congress of August 10,
2006, on "U.S. Nuclear Weapons: Changes in Policy and Force Structure," that
states for example "[t]he emphasis on the development of penetrating nuclear
weapons that can destroy hardened and deeply buried targets, along with the
"capabilities" based approach that states the United States will seek the ability
to destroy threatening capabilities possessed by any potential adversary, are
a part of this new strategy."
Congress is well aware of the increasingly tense situation with
Iran and the buildup of U.S. military power in the Persian Gulf being carried
out by the administration at this time. Hence it knows that war may break out
"in the ordinary course of events," and that given the new U.S. nuclear weapon
policies and force structure the administration is likely to
order their use in a military conflict with Iran "in the ordinary course
Congress' Failure to Regulate
Article 28 of the Rome Statute states that "a superior
shall be criminally responsible for crimes within the jurisdiction of the Court
committed by subordinates under his or her effective authority and control,
as a result of his or her failure to exercise control properly over such subordinates."
More specifically if "the superior failed to take all necessary and reasonable
measures within his or her power to prevent or repress their commission...."
The Constitution assigns Congress the responsibility to regulate the Armed Forces ( Article 1, Sect.
8, Clause 14). In that sense Congress is a "superior" to the Armed Forces,
and has the duty to regulate and forbid certain behaviors, and is therefore
liable if it fails to exercise proper control.
Congress exercised this responsibility by banning the practice of torture by the U.S. Armed Forces. It
outlawed the production and use of chemical weapons under any
circumstances. It has so far abdicated its responsibility to even discuss, let
alone legislate, over the use of nuclear weapons by the United States.
Congress can pass legislation making it illegal for the U.S. to use nuclear weapons
against non-nuclear-weapon states. This would prevent the Executive, who is
sworn to uphold the law, to order their use against Iran. If the president would
nonetheless order the use of nuclear weapons he would be subject to impeachment,
but Congress would not be liable.
In the case of non-nuclear adversaries there is no extreme urgency associated
with response or preemption of nuclear attack, hence there is no need for the
Executive to have full discretion to order the use of nuclear weapons without
input from Congress. Congress can reserve the right to designate any state to
be a nuclear-weapon state, not subject to this restriction, for example if it
judges that a state is on the verge of acquiring nuclear weapons. It can also
designate by statute any state that it decides should be subject to U.S. nuclear
attack, for example a state that possesses large arsenals of chemical or biological
weapons and threatens to use them.
The American Physical Society issued last year a statement of "deep
concern" about the "possible use of nuclear weapons against non-nuclear states
and for preemptive counterproliferation purposes." A group of eminent U.S. physicists including Nobel laureates and
present and past presidents of the American Physical Society and of the Union of Concerned Scientists has urged Congress "to pass binding legislation to forbid the use of nuclear weapons
by the United States against countries which do not possess nuclear weapons,
except with explicit prior Congressional authorization for such action." The
physicists state "Nuclear weapons are unique among weapons of mass destruction.
Employment of nuclear weapons would kill untold number of innocent civilians
in the target area, and the associated radioactive fallout could kill many thousands
in other countries very far from the target. There are no sharp lines between
small "tactical" nuclear weapons and large ones, nor between nuclear weapons
targeting facilities and those targeting armies or cities." "A decision that
would have a major impact on the course of history and could ultimately threaten
the survival of civilization should not be in the sole hands of the president
unless absolutely unavoidable."
Physicists created nuclear weapons and they ought to know what
they are talking about. Passing a law to restrict the president's authority
to order the use of nuclear weapons, unless under attack or imminent attack
by a nuclear nation, would be a "necessary and reasonable measure" that
legislators should take to extricate themselves from complicity in nuclear crimes
against non-nuclear-weapon countries.
Individual Liability of Members of Congress
Each of the 535 current members of Congress
will be individually liable if the U.S. uses nuclear weapons against Iran.
One may even argue that all members of Congress that voted on Defense Authorization
Acts (that always include funds for nuclear weapons and personnel) after the
Nuclear Posture Review was delivered to Congress in December 2001 will be
liable. That includes essentially all members of the 109th, 108th and 107th
Congress as well.
Some members of Congress have sent letters to the president , , , asking him not to use nuclear weapons, some have written
articles , , , and given speeches , , 
opposing the use of nuclear weapons. However, these efforts do not discharge
the members' responsibility nor do they even constitute mitigating factors,
because they know that letters, articles and speeches have no effect in constraining
the president's actions.
Some members of Congress may face aggravating circumstances. For example, it
is likely that selected members of Congress were briefed
by the administration on the deployment of tactical nuclear weapons in the Persian Gulf region. By having
added knowledge and not acting to prevent it, these members of Congress will
have added culpability if the U.S. uses nuclear weapons against Iran. Similarly,
members of Congress who actively support U.S. military action against Iran will
face added responsibility because they must know that such action is highly
likely to lead to the use of nuclear weapons.
Some members of Congress may be under the mistaken impression that discussing
and passing legislation on the use of nuclear weapons that implicitly or explicitly
allows their use in some circumstances would make them liable if the weapons
are used in those circumstances. However, it is the other way around: they are
maximally liable now, and passing binding legislation (as opposed to "sense
of Congress resolutions") to limit the circumstances under which nuclear weapons
may be used would reduce their liability.
How Members of Congress Can Discharge Responsibility
Article 25 of the ICC Statute reads: "a person shall
be criminally responsible and liable for punishment for a crime within the jurisdiction
of the Court" for several reasons, one of them (f) is: "Attempts to commit such
a crime by taking action that commences its execution by means of a substantial
step, but the crime does not occur because of circumstances independent of the
person's intentions. However, a person who abandons the effort to commit the
crime or otherwise prevents the completion of the crime shall not be liable
for punishment under this Statute for the attempt to commit that crime if that
person completely and voluntarily gave up the criminal purpose."
It may be argued that the fact that Congress has funded nuclear weapons and
so far has refused to exert any control on potential criminal uses of those
weapons by the Executive constitutes "taking action that commences its execution
by means of a substantial step." To the extent that individual members of Congress
engage in bona-fide efforts to restrict the authority of the Executive to order
the use of those weapons, and especially if they succeed in passing legislation
to that effect, they would be "abandon[ing] the effort to commit the crime or
otherwise prevent the completion of the crime" and they would no longer by
"liable for punishment."
At the time of this writing, no Congressmember has taken any meaningful action
to prevent commission of nuclear crimes. By virtue of their position and their
lack of action, and the surrounding circumstances discussed above, the situation
is no different than if Congress had unanimously voted
in favor of using nuclear weapons against Iran.
Can the ICC Act on the Threat Alone?
The International Court of Justice has ruled that not only the use,
but also the threat of use of nuclear weapons is "contrary to the rules
of international law applicable in armed conflict."
President Bush has threatened to use nuclear weapons against Iran, when,
in response to the question "Sir, when you talk about Iran, and you talk about
how you have diplomatic efforts, you also say all options are on the table.
Does that include the possibility of a nuclear strike? Is that
something that your administration will plan for?" he answered "All options are on the table."
If Bush is threatening to use Congress' nuclear weapons in an illegal way,
and Congress does not make any move to rein in the authority of Bush to do so,
it follows that members of Congress are implicitly aiding, abetting and assisting
in the threat.
Does a threat rise to the level of gravity needed for consideration by the
International Criminal Court (Article 17 (d))? John Bolton in his role as U.S.
ambassador to the United Nations has called on the ICC to charge Ahmadinejad for his "threats" against Israel. The European Jewish Congress is
said to be preparing to file a
complaint with the ICC against Ahmadinejad for that reason.
A group of physicists has written to President Bush to voice their objection to both "using
or even merely threatening to use a nuclear weapon preemptively against a nonnuclear
adversary" and urging him to take the nuclear option against Iran off the table,
on the grounds that "[i]t is gravely irresponsible for the U.S. as the greatest
superpower to consider courses of action that could eventually lead to the widespread
destruction of life on the planet."
ICC Prosecutor Luis Moreno Ocampo stated
in his acceptance speech that "the creation of the International Criminal
Court will help us to prevent those atrocities from being repeated in
the future." He furthermore stated that "The primary responsibility to prevent,
control, and prosecute those atrocious crimes belong to the states in which
jurisdictions they are committed. The principle of complementarity established
by the Statute compels the prosecutor's office to collaborate with national
jurisdictions in order to help them improve their efficiency." It logically
follows that if national jurisdictions fail to act to prevent atrocious crimes,
the entire responsibility to try to prevent the crimes lies with the ICC.
The ICC has jurisdiction over situations in any State where the situation is
referred by the United Nations (UN) Security Council acting under Chapter
VII of the UN Charter, in case of "the existence
of any threat to the peace." Presumably, where the "threat to the
peace" involves a veto-wielding member of the UNSC, the entire responsibility
to act on threats to peace lies with the ICC.
The ICC Prosecutor has full authority to "initiate investigations proprio motu." The ICC Statute
says "Under the Rome Statute, individuals or organizations may submit to the
Prosecutor information on crimes within the jurisdiction of the Court ('communications').
The Prosecutor shall analyze the information to determine whether there is
a basis to launch an investigation."
Unlike any other country in the world and unlike any other time in history,
the United States under the Bush administration has openly and publicly claimed
for itself the right to use nuclear weapons against non-nuclear-weapon countries
at the sole discretion of one person, the president, and has engaged in preparations to that effect. If a large enough
number of concerned individuals and organizations provide input to the ICC Prosecutor
and ask him to launch an investigation on the threat of nuclear weapons use
by the United States that could ultimately lead to widespread nuclear genocide,
Dr. Luis Moreno Ocampo may be inclined to act on the matter and indict U.S. members of Congress
for their failure to legislate, thereby prompting these legislators to come
to their senses and act before it is too late.
The ICC Office
of the Prosecutor e-mail address is email@example.com, tel.:
+31 70 515 85 15, fax 31 70 5158555, postal: International Criminal Court Office
of the Prosecutor, Post Office Box 19519, 2500 CM The Hague, The Netherlands.