Charles J Moxley, Jr., a New York attorney and member of the Board of the Lawyers' Committee on Nuclear Policy, squarely challenges the US position in his 800 page book Nuclear Weapons and International Law in the Post Cold War World . The ICJ indicated the inherent risk of any use of low-yield tactical nuclear weapons escalating into use of strategic weapons.
Risk factors are an important part of developing a determination of per se illegality.
US military law prohibits the use of weapons that cannot be controlled, and the facts as to the uncontrollable nature of nuclear weapons, in particular their radiation effects, seem beyond reasonable doubt. In reaching his conclusion that the use of nuclear weapons is illegal per se , Moxley gives considerable detail on the codification of the law of war in US military manuals, the ICJ judges' individual perspectives in the 1996 advisory opinion, current US weapons systems and policies, risk factors inherent in the practice of deterrence, the legal significance of risk factors and the non-necessity of nuclear weapons. He does not address the question of whether the ICJ opinion renders illegal the current deployment of nuclear weapons at a time when there is not a threat to the very survival of the US or its allies, and instead focuses on the illegality of the threat or use of nuclear weapons at all times. Moxley asserts that virtually any use of nuclear weapons, in the types of circumstances in which such weapons might actually be resorted to, would carry with it the risk of retaliation by the enemy with weapons of mass destruction and the risks of escalation resulting in effects beyond those legally permissible. Moxley also makes a very useful application of risk factors, probability analysis and catastrophe theory to the legality of the threat of use of nuclear weapons.