In a rare, public dispute between British Naval officers over legal responsibility for attacks using nuclear weapons, two retired British submarine commanders have openly attacked each other’s views in writing. The online confrontation opens a window to the tortured thinking inside the perpetual, high-level, planning and reparation for such attacks among nuclear armed states.
The very public brawl — between Rear Admiral John Gower, a former submarine commander and retired leading ministry official, and the retired submarine Commander Robert Forsyth — appeared on the website of The Nautilus Institute, a British military think tank, in an exchange of six lengthy letters last year. And the open quarrel spotlighted the global debate over the legal status of nuclear weapons threats, politely known as “deterrence,” especially since the entry into force of the 2017 Treaty on the Prohibition of Nuclear Weapons.
What caused the online uproar was Adm. Gower’s claim that British ballistic missile submarine captains do not have any right to even question, much less refuse an order to launch their nuclear weapons. The headline in a report on the clash in The Ferret of Scotland was, “Trident commanders ‘not legally responsible’ for nuclear attack.”
Adm. Gower initially wrote an article about UK nuclear weapons command, control, and communications, and claimed, “The military has no formal role in the advice or decision upon whether to launch” nuclear-armed ballistic missiles, which are all on its Trident submarines. “There was then, and there is now, no latitude for a [commanding officer or executive officer] to delay or refuse a launch order on any basis,” he wrote.
Gower’s position creates — in the phrase coined by Professor Robert J. Lyfton — an “atrocity producing situation” by institutionalizing blind obedience, and the world well knows what it led to in Hitler’s fascist regime. The claim that submarine commanders have no choice but to obey when ordered to attack with nuclear weapons is a clear violation of the Nuremberg Charter, Principles and Judgment. It was Gower’s shocking assertion that such orders cannot be disobeyed that forced Cdr. Forsyth to publicly lambast his comrade in arms.
“We knew our missiles were targeted to take out Moscow — the so called ‘Moscow Criterion’ — and that this would cause appallingly disproportionate and indiscriminate deaths to millions of the civilian population by blast and fire immediately and, for decades to come, through radiation,” Cdr. Forsyth wrote. “We knew that such a strike would be well outside any accepted international humanitarian law.”
“This is factually wrong,” Adm. Gowers replied, although he admitted that authoritative warnings about unlawful indiscriminate destruction have existed for decades, acknowledging, “Although the [International Committee of the Red Cross] made statements in 1945 and 1950 on the consequences of atomic weapons use, these were not legal judgments.”
Cdr. Forsyth then pointed explicitly to the laws imposed by the Allies on the defeated Nazis: “Nuremberg Principle IV states, ‘The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law.’ Unquestioning obedience to a superior’s order is not enough. The UK Joint Service Manual of the Law of Armed Conflict itself states that military commanders ‘… have a responsibility to cancel or suspend the attack if it turns out that the object to be attacked is going to be such that the proportionality rule would be breached.’ So it is the CO himself who must make a considered and informed decision as to whether he should obey the order.”
To this Adm. Gower rejoined: “Successive Attorneys General … have maintained confidence in their judgment that in the extreme circumstances where the employment of the nuclear weapons might be justified, they can be so employed in ways consistent with IHL” [International Humanitarian Law].
Cdr. Forsyth rejected this claim writing, “Rear Admiral Gower states that he is prepared to put his faith in the Attorney General’s infallibility, and that a Trident CO can similarly assume that any order to fire will be fully compliant with International Humanitarian Law. He suggests that as a ‘lay’ person I should not question the Government’s legally obtained position. To which I say, ‘What about Iraq 2003 and the Chilcot Inquiry?’” The reference is to the July 2016 House of Commons report that castigated and condemned the UK’s role in the US-led military bombardment and occupation of Iraq.
Forsyth continued: “Rear Admiral Gower suggests that the COs of [nuclear-armed subs] are absolved of any responsibility because they do not have knowledge of the targets or other specifics of the attack nor have any discretion in carrying out the order. However, there is no reference to such words in the Nuremberg Principles.” Cdr. Forsyth reminded Gower of military personnel’s responsibility under international law to disobey unlawful orders “provided a moral choice was in fact possible.” He wrote, “The CO needs to know the facts to make a moral choice; moreover, he has discretion by virtue of his Captain’s Key which must be turned to give his permission to fire. … The CO could well be placed in involuntary legal jeopardy if he obeys without question not knowing the facts.”
Adm. Gower then resorted to name calling, having lost the argument on the legal basis. Gower wrote, “Those who seek unilateral disarmament of the UK have begun to use this personal threat against the [commanding officer] as a means of undermining the moral component of the deterrent.” (See my comments at CounterPunch Dec. 7, 2017, What Kind of Nuclear Attack Would be Legal? and Apr. 20, 2015, Arresting the Wrong Suspects.
But Cdr. Forsyth wasn’t distracted. “The crucial question,” he concluded, “is whether Adm. Gower’s statement that a military commander with the responsibility and discretion to withhold fire is, as he asserts, uniquely exempt from the provisions of the Nuremberg Principles and Article 33 of the Rome Statute of the International Criminal Court.”
In an email to me, international law Professor Francis Boyle at the University of Illinois Law School, and author of The Criminality of Nuclear Deterrence (Clarity 2002), answered Forsyth with authoritatively: “The Nuremberg Charter and Judgment were unanimously approved by a UN General Assembly Resolution making them customary international law.”