Trident submarine commanders unleashing a nuclear attack cannot be held responsible under law for their actions, according to the Ministry of Defence’s former nuclear policy chief.

Rear Admiral John Gower, who was a submarine commander and a leading ministry official, has dismissed the argument that Trident commanders would be in ‘legal jeopardy’ if they launched nuclear warheads as a first strike against an enemy.

But this has alarmed former nuclear submarine commander, Robert Forsyth, who warned that it put current Trident commanders in an “impossible position”. If they unquestioningly obey an order to fire they could be guilty of a “war crime”, he said.

We need to scrap Trident, says former nuclear submarine commander

The argument between two former senior naval officers over the responsibility for turning the key to launch nuclear-armed missiles has erupted at length on the website of the Nautilus Institute, a military think tank.

After Gower published an article on “nuclear weapon command, control and communications” in September, Forsyth took him to task for suggesting that the “military has no formal role in the advice or decision” on whether to launch a nuclear attack that could kill millions.

Forsyth commanded nuclear-armed and nuclear-powered submarines for the Royal Navy in the 1970s. He retired in 1980 and has since questioned the rationale for keeping a nuclear deterrent, calling for the Trident system based at Faslane and Coulport on the Clyde to be scrapped.

Forsyth argued that the UK had changed its policy on firing nuclear weapons since he left the navy. Instead of only firing in retaliation, the policy now included an option to launch a pre-emptive first strike if UK troops were threatened with chemical or biological weapons.

He told Gower that this placed commanders of Trident submarines in an “impossible position” because launching a first strike would breach international law by causing mass destruction. “Unquestioning obedience to a superior’s order is not enough,” he said.

Gower commanded nuclear and diesel powered submarines and then became assistant chief of staff responsible for nuclear, chemical and biological weapons at the Ministry of Defence before he retired in 2014. He responded by attacking Forsyth, accusing him of “insubordination” by suggesting that he might not have launched a nuclear attack if he had been ordered to do so.

Gower wrote: “Other contemporary officers, with clear anti-nuclear weapon convictions that Commander Forsyth now attests he had then, honourably resigned rather than serve with the weapons. Not to follow their example is less honourable, in my judgement.”

Gower insisted that nuclear strikes were not illegal. The UK’s policy of “deliberate ambiguity” on the circumstances in which it might deploy a nuclear weapon had been maintained by successive governments for decades, he said.

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Trident
Commander Robert Forsyth

This provoked a counter response from Forsyth, who described some of Gower’s words as “ill-chosen and intemperate”. He denied that he had been in any way insubordinate, but had instead had discussions with his commander when he was deputy to understand “the immensity of our joint responsibility”.

Forsyth said that as far as he was aware no officers had resigned from nuclear-armed submarines, though “several” had requested not to serve in them. “Their subsequent careers varied: some prospered, some did not and eventually took voluntary retirement,” he added.

Gower then responded again. Nuclear submarine commanders on distant patrol “cannot under any circumstances have access to the range of factors necessary in determining either the necessity or the legality of a launch of his missiles,” he said.

“That the decision to launch is taken by the highest political leadership, with the advice of the broad church of political and legal bodies fully cognisant of their legal responsibilities has removed, uniquely in military commands, this responsibility from his shoulders.”

Gower accused disarmament campaigners of having failed to convince governments to drop their backing for renewing the Trident nuclear weapons system. Now, he said, they “have begun to use this personal threat against the commanding officer as a means of undermining the moral component of the deterrent.”

Trident commanders could be ‘party to a war crime’

The suggestion that the UK government could exonerate submarine commanders of their responsibilities under international law was “astonishing”, Forsyth said. “The commanding officer is damned if he does not obey and may be damned if he does,” he told The Ferret.

“On the one hand the government totally absolves him from any responsibility for his actions but, on the other hand, it is possible he could be party to a war crime or a crime against humanity if the legal advice provided to the Prime Minister is not correct.”

Forsyth argued that he and Gower both objected to the first use of nuclear weapons. “Gower believes that the change away from first use can only be achieved through omni-lateral negotiation,” he added.

“Whereas I believe UK has a moral duty, as a self proclaimed responsible nuclear state, to set an example, as China has, to declare unilaterally for no first use.”

Gower, speaking in a personal capacity, stressed that no international court had ruled that the use of nuclear weapons would be illegal in all circumstances. “The UK clearly believes that there might be circumstances where use would be both necessary and legal, and that the risk of such use to an adversary constitutes a necessary deterrent,” he told The Ferret.

“Such use can only be authorised by the Prime Minister. It can be assumed, given the grave nature of such a decision, that the PM would act only in full possession of the facts of the situation and after exhaustive consultation with ministers and the attorney general.”

Gower pointed out that none of the information needed to judge the legality of such a decision would be made available to a submarine commander. “He – or perhaps soon she – is thus unable to make a judgement…It is therefore implicit that the burden rests upon the PM and not the commanding officer, nor anyone in the firing chain.”

This was unique to long range strategic nuclear weapons, he argued. “Commander Forsyth, and others, have a moral antipathy to nuclear weapons and their use per se, which drives their positions, as much as my views drive mine. I respect those views but evidently a responsible submarine commander cannot hold such a position given the removal of choice from his decision to launch, and submarine officers likely to face selection for such a command appointment are constantly made aware of the implications.”

Bid to sue UK government for Trident ‘war crimes’ under investigation

According to the Scottish Campaign for Nuclear Disarmament, the International Court of Justice in The Hague ruled in 1996 that the use of nuclear weapons breaks all the principles and rules of humanitarian law. “Any military person triggering indiscriminate mass death followed by generations of irrecoverable harm is surely complicit in a war crime,” said the campaign’s chair, Lynn Jamieson.

“The UK government gives no absolute assurances that limits the use of nuclear weapons to ‘an extreme circumstance of self-defence’ threatening the ‘very existence’ of the UK. This is the only circumstance in which the international court was uncertain about whether or not it would be illegal.”

She added: “It’s time for our government to get behind the UN Treaty for the Prohibition of Nuclear Weapons and to use the resources we are squandering on Trident to help mend the planet.”

In January the US provoked criticisms from arms control experts after it sent a submarine to sea for the first time armed with a “low yield” Trident nuclear warhead. The warhead reportedly has an explosive power of five kilotons, a third of that of the Little Boy bomb dropped on the Japanese city of Hiroshima in 1945 and between 18 and 90 times less powerful than other US submarine warheads.

Critics fear that a low yield nuclear weapon that might cause less damage is more likely to be fired. Political and military commanders could see it as a way of winning a conflict – rather than a deterrent of last resort – and start a nuclear war, they say.

A Ministry of Defence spokesperson said: “We do not comment on matters relating to the nuclear deterrent.”

Correspondence between Robert Forsyth and the Ministry of Defence

Letter From Robert Forsyth to Ministry of Defence 9 Jan 2020 (Text)

Letter From Ministry of Defence to Robert Forsyth on 13 Feb 2020 (Text)

This story was updated on 14 February 2020 to publish the correspondence between Robert Forsyth and the Ministry of Defence.

Cover photo thanks to iStock/KREMLL.

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Fearchar MacIllFhinnein

‘A Ministry of Defence spokesperson said: “We do not comment on matters relating to the nuclear deterrent.”’
Doesn’t this ministry work for a parliamentary democracy in the United Kingdom any more? Surely the Ministry is in duty bound to answer questions and clarify policy on the nuclear deterrent, as on other areas of its remit.

It may be useful for those interested in this debate if I add some further comments to those very accurately reported by Mr Edwards. The basis of my concern is the change in HMG Policy from the single circumstance of sole use in retaliation to a nuclear attack (as in my Polaris days) to one of deliberate ambiguity. By definition this does not exclude anything and so could include first use in support of troops abroad threatened by chemical or biological weapons; a possibility that Minister Geoff Hoon confirmed in 2002 prior to the Iraq war. The constraints of The Nuremberg Principles established post WWII and the Rome Statute of the International Criminal Court make military commanders responsible for their own actions and not to take actions which are ‘manifestly unlawful’ even if responding to superior orders. As nuclear weapons are inherently likely to cause massive, disproportionate and indiscriminate collateral damage to civilians as well as military targets, they are almost certainly manifestly unlawful and so judged in the opinion of the International Court of Justice in 1996. The only justification for their use – and even this is contentious – might be if there was an existential nuclear threat to UK or a NATO country. Put another way – if HMG considers Trident COs should be absolved of responsibility, then does this not mean that it recognises that its policy of deliberate uncertainty could place Trident COs in legal jeopardy? More of my research on this subject can be found at http://www.whytrident.uk/

Good report. Having followed Forsyth’s exchanges with Gower on http://www.nautilus.org , I’m concerned that Forsyth isn’t given space here to respond to Gower’s new allegations. Also, my understanding is that Forsyth correctly challenged him regarding his outrageous claim that Trident COs are absolved from compliance with the Nuremberg Principles, which appears not to have been endorsed by the UK Government. Forsyth’s concern is firmly grounded in the law, that current UK nuclear weapon policy, especially regarding first use, places Trident COs in legal jeopardy.

Field Marshal Wilhelm Keitel was executed following the Nuremberg Trials . No RN officer should be responsible for anything the current PM might order. The RN like the forces before going to Iraq need a note from AG telling them what they have been ordered to do is legal.
This should start now. While Trident has not been on ‘hair-trigger’ posture since ~1994, any move back to that status should include the legal advice that any targets to be loaded on a missile are not in breech of International Humanitarian law. At least such an exercise would remove any notions of first strike, and may allow re-consideration of being continually at sea with no approved targets to fire at nearly 30 years after the cold war ended.
We appear to be afraid to bring these crews home even though the cold war finished 30 years ago. The current efforts of Tsar Putin to look big is worthy of a military/intelligence assessment. Russia is not the SU. Trident has been a political weapon for too long. The 2016 debate in Parliament was about the only thing the Tory could use to galvinise some unity in their party while dividing labour further. The latter seemed more important than the former.