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Nuclear Weapons and the Law
by Lord Murray (former Lord Advocate of Scotland)
Most people are nowadays aware of the apocalyptic power of nuclear devices and that, at the height of the cold war, weapons deployed had multiplied in power from the 15 kilotonnes of Hiroshima towards megatonnes. Fortunately this progression has been curbed by nuclear arms limitation and non-proliferation agreements. But in the opposite direction the formerly covert nuclear aspirants, India and Pakistan, have become nuclear weapons states. Others may well follow suit: this in the teeth of a ruling by the ICJ, the World Court, which – at the very least – raises a doubt whether any nuclear weapon presently deployed can be used lawfully at all. Plainly there is a window of opportunity, which can hardly last for long, to end the deployment of nuclear weapons as a first step in global arms reduction and limitation. The ICJ advisory opinion offers what is perhaps the only credible starting point.
Opponents of nuclear armaments sometimes take the position that any legitimate use of nuclear arms is quite unthinkable. To assess the impact of the advisory opinion properly the unthinkable may have to be thought.
I shall attempt to do this with a history-bending parable. Let us suppose that World War II had ended in an uneasy truce rather than being fought to a finish. Hitler has not conquered Britain but has reduced it to military impotence while an isolationist U.S.A., not having been attacked at Pearl Harbour, remains an independent power of great economic strength. Hitler, who has not yet achieved world domination, develops the ultimate doomsday weapon, a Gőtterdămmerung device which, when fired deep into the earth, will start a chain reaction causing the whole planet to explode into space, to go “nova”. An ageing Hitler decides to take a last gamble in world conquest by issuing an ultimatum to the rest of the world and U.S.A. in particular that, unless they submit to him completely within 24 hours, he will activate the device. Unknown to Hitler, however, U.S.A. has developed a 10 megatonne bomb which can be delivered with precision and would physically nullify and annihilate the doomsday device at the cost, of course, of millions of civilian casualties. Would a pre-emptive strike by U.S.A. before expiry of the ultimatum be morally justified? Would it be legal at international law? The advisory opinion is our guide in trying to answer the second question.
The doomsday weapon I have figured could perhaps be given the acronym “goddam”, standing for global obliteration devastation disintegration and massacre. It is pretty obvious that the goddam bomb would be the ultimate in deterrence. If two powers possessed it there could be a balance of horror – not just mutually assured destruction, but absolutely certain holocaust of the planet. If deterrence is the true guarantor of security, then every state should be able to secure its freedom with a goddam bomb. If this seems paradoxical, then the doctrine of deterrence is itself suspect. This is the conclusion arrived at by General Lee Butler in his astonishing Geiringer memorial oration in New Zealand, published in 1997, based upon his experience as c. in-c. of the US Strategic Command from 1991 until he retired. In his view the simple concept of adequate military preparedness has been perverted into a nuclear formula for unmitigated catastrophe, suspending rational thinking about the ultimate aim of national security – to ensure the survival of the nation. In short deterrence in the nuclear age has reared up to become a monstrous menace in its own right, constraining equal and opposite force, having long parted company with reasonable readiness to resist likely aggression.
Against that grim backdrop what is the use of the mere advice of a judicial body which has no power of effectual enforcement even of its own binding decisions? It may be a fragile vessel in which to carry reason forward, but it could be the only one; and perhaps it is not so fragile after all.
Two preliminary points may be made. Firstly, as Dame Rosalyn Higgins, British judge on the World Court has pointed out, 95% of the court’s decisions have been implemented despite the lack of effective enforcement power. Secondly, an advisory opinion of the court is not to be dismissed as just a matter of opinion, to be disregarded if you do not agree.
Sir Michael Quinlan, Permanent Under-Secretary for Defence 1988-1992, published a Whitehall Paper called “Thinking about Nuclear Weapons” a year after the ICJ decision. His only mention of that decision comes in brackets in an appendix in which he refers not to the merits, but to the disparity of views between the judges. In short he ignores the issue of legality. This, I think, is the authentic voice of the defence establishment. That this stems from a deliberately dismissive approach to the ICJ decision appears from a written note by Sir Michael in June 1998 that the ICJ’s pronouncement on nuclear weapons is an advisory opinion not an authoritative determination so that “it cannot create binding international law” (his words). The implication is that the decision can be safely disregarded in framing defence policy.
The 1998 Strategic Defence Review, despite its many praiseworthy features, by entirely ignoring the issue of legality continued the same line, even although specific submissions on legality were made to the Government for the purposes of the review. Its perception must be that, if the ICJ’s pronouncement is not binding, then it is of little moment.
That view, I suggest, is unsound. Sir Michael Quinlan in his parenthetical aside on the ICJ decision writes about “the diverse advisory opinions on nuclear weapons expressed in 1996 by members of the ICJ” (his words). In fact the court issues a single collective pronouncement on the question put to it which is the judgement of the court. This is its advisory opinion. Dissents or differences of view on the part of individual judges are contained in separate written declarations which are not strictly part of the advisory opinion.
It is true, of course, that under the statute of the court its advisory opinions are not binding upon the parties as are decisions in contentious litigation. But it is a fair inference that the power to deliver them was not conferred with the intention that they should be ignored. Nor is it true that advisory opinions are without authority and without effect upon international law generally. Such a pronouncement by the court is authoritative in that it embodies the collective view on a point of law of the highest judicial organ of international law, after hearing disputed contentions in full court proceedings. Furthermore the reasoned principles expressed in the court’s ruling are likely to be applied in a contentious litigation on the same subject which would bind the parties. For these reasons alone it may be unwise of a nuclear power to adhere to the Quinlan line and disregard the ICJ advisory opinion of 8 July 1996. The advice tendered by the court is there to be followed or at least to be carefully considered.
International law, despite any appearance to the contrary, is real law, not just international morality or international expediency. It may be less developed than domestic law, but it has a genuine and growing force of its own. To ignore international law is to ignore a factor which is significant, if less than conclusive, in the conduct of international affairs. Under international law slavery has been outlawed, world-wide post is regulated, navigation at sea and in the air controlled and, under very special circumstances, even war criminals brought to trial and executed. All law consists of organised, structured principles with an institutional base. What international law lacks is the state’s power to legislate and to enforce the law. But, in contrast with morality’s want of agreed institutions, international law has a court of law whose authority is almost universally accepted.
Having pointed out a distinction between morality and law, it is right to accept that in certain areas there is virtual identity between them. Most serious crime is extremely immoral. International humanitarian law is virtually identical with the moral dictates of humanity and conscience. The public conscience of mankind, when it has stirred itself, has been a potent factor in the development of international humanitarian law during the last two centuries. Indeed through its continuing influence it may reasonably be asserted that military imperatives or right of self-defence can no longer evade the requirements of international humanitarian law.
The main sources of international law are custom and practice, treaties and conventions, the judicial decisions of courts and arbitrations, widely accepted general principles of law and the writings of recognised international jurists. Of these sources formal multilateral treaties, including the U.N. Charter and the Statute of the International Court of Justice, are of increasing importance and may be likened to legislation. They are, of course, the legal foundation of these international organs.
After the first world war the League of Nations was established and the Permanent Court of International Justice was set up at the Hague. It was the first world court. It was succeeded after the second world war by the present court who are independent judges, no two of whom may have the same nationality. The parties who appear before the court are states and institutions, not individuals. A decision has no binding force except between parties who submit to the court and on the particular issue.
The court, like its predecessor, has jurisdiction to give advisory opinions, now at the instance of a body authorised under the powers of the U.N. Charter. But once initiated, states may participate in the proceedings.
An early advisory opinion was given by the court in 1949 arising out of the assassination of the U.N. peace negotiator, Count Bernadotte, in Jerusalem in 1948. Two questions were put on behalf of the U.N. organisation: firstly whether the U.N. could bring an action for reparation against a government for failing to give their negotiator adequate protection; and secondly whether the de facto government of Israel, which was not then a state within the U.N., could competently be held liable. The court answered both questions in the affirmative. Reparation was made and shortly afterwards Israel was admitted to the U.N.
In 1971 the court issued an advisory opinion to the General Assembly on the validity of their purported termination of South Africa’s mandate over South West Africa, which had been a German protectorate (apart from a small British enclave) until the first world war. South Africa had disregarded the trust limitations of the mandate which had originally been conferred under the League of Nations which was dissolved in 1945. South Africa argued that the mandate had lapsed with the demise of the League of Nations. The court held that the U.N. had validly terminated the mandate which had not lapsed and had been breached by South Africa, inter alia by the introduction of racially discriminatory laws and refusal to concede the right of self-determination. Though the decision did not immediately stop South Africa’s virtual incorporation of the territory, it was the start of a world-wide campaign founding on the illegality of South Africa’s conduct which, after a general election, resulted in an independent Namibia in 1990. The decision may even have contributed to the ultimate collapse of apartheid.
In 1975 the court gave an advisory opinion on the Western Sahara question. This had been a Spanish colony since 1884. It was and is thinly populated, largely by nomad tribesmen some of whom had connections with Morocco and some with Mauretania. When decolonialisation began after 1960 both these neighbouring states claimed the territory on the basis of historic rights exercised prior to Spanish occupation. Two questions were put by the General Assembly. Firstly, was Western Sahara a territory belonging to no state before 1884; and secondly, if not, what legal ties, if any, linked each of them with Western Sahara. The court replied that the territory was not unoccupied land prior to 1884 and that there were legal ties with both Morocco and Mauretania at that time. A referendum was to be held to decide on independence or integration with one or other neighbour. Before it took place, Morocco, on a misinterpretation of the decision, occupied the part of Western Sahara with which it had historic links and a guerilla movement called the Polisario resisted them. Mauretania ultimately withdrew its claim and Morocco agreed to a referendum based on the advisory opinion which was to have been held in 1998, some 23 years afterwards, and is now planned for the spring of 1999.
These cases may illustrate the authority and ultimate success of the world court’s advisory opinions, even where wider issues of political conflict arise. They can be a focus and stimulus for reform. On occasion the same can happen in domestic courts.
At a Trident meeting in Edinburgh on 5 April 1998 addressed by Robert Macnamara, Lord Carver and Sir Malcolm Rifkind, Robert Green, who holds the chair of the World Court Project UK, likened the movement to curb or eliminate nuclear weapons to the campaign against slavery over two centuries ago. He pointed out that the campaign began with the efforts of a few thoughtful, conscientious British citizens in 1785 and built up to the British Empire banning slavery in 1833. He found to his surprise that the campaign had focused on the illegality of slavery, not just its inhumanity. The true starting point, it appears, lay in judicial decisions in this country.
The earliest reported case which I have found on the issue of slavery is the Scottish case of Robert Sheddan (1757) Morison’s Dictionary 14545 where a slave, brought here from Virginia to learn a trade and put back on a boat to return there, applied to the court to be liberated. The court appointed a counsel to the slave and ordered a hearing. During the hearing, however, the slave unfortunately died, so that the issue was not determined. In Sommersett’s case (1772) 20 St. Tr.1 Lord Mansfield ruled in the High Court in England that slavery was unlawful there and the slave was freed. Then in Knight v Wedderburn (1778) Morison’s Dictionary 14545 it is reported that in 1775 the Sheriff of Perthshire liberated a Jamaican slave ruling that slavery was not recognised by the law of Scotland and was inconsistent with its principles. His decision was affirmed on appeal.
Let us then consider the ICJ’s advisory opinion on the legality of nuclear arms.
The case was initiated by request from the U.N. General Assembly. It was heard by a court of 14 judges. The question asked was “Is the threat or use of nuclear weapons in any circumstances permitted under international law?” Although unanimous on many of the issues raised before them, the judges were equally divided on the form of the final answer which they should give. On the casting vote of the president the court declared: (1) that the threat or use of nuclear weapons would generally be contrary to international law; but (2) that it could not be determined definitively whether such threat or use would be lawful “in an extreme circumstance of self-defence in which the very survival of a state would be at stake”. These somewhat enigmatic passages are the court’s collective answer to the question put. The president of the court expressed an important caveat on the interpretation of that answer. He stated “I cannot over-emphasize that the inability of the court to go further than the formal pronouncement at which it has arrived cannot in any way be interpreted as a half-open door to recognition of the legality of the threat or use of nuclear armaments”. Bearing in mind that it was the president’s casting vote which decided the final form of the answer, it cannot be affirmed on the basis of this judgement that there is any lawful use of nuclear weapons at all.
It is to be noted that the court reached a unanimous view on two important issues. Firstly, they held that a threat or use of nuclear force which did not comply with articles 2 and 51 of the UN Charter would definitely be unlawful. These articles outlaw aggression but reserve to states a right of self – or collective defence against attack (subject to Security Council supervision). Secondly, the court held that, to avoid illegality, nuclear threat or use would have to be compatible with the laws of armed conflict and in particular with international humanitarian law. These propositions by themselves would severely restrict the scope of nuclear arms.
Turning to the central matter on which the judges were equally divided until the president’s casting vote, the court’s decision was to the effect that the threat or use of nuclear weapons is unlawful under all circumstances except, possibly, one: namely, last resort self-defence to avoid annihilation. To get a balanced view of the grounds on which the judges decided it must be noted that three of the judges who dissented took an exactly opposite view to the other four dissenters. Four considered that nuclear threat or use was not unlawful as a general rule. The other three, in contrast, considered nuclear threat or use to be always unlawful. It follows that an absolute majority of the court, ten out of fourteen – a two-thirds majority – judged that threat or use of nuclear weapons is either entirely illegal or generally illegal subject to one possible exception. That is, a two-thirds majority of the judges rejected the general lawfulness of nuclear weapons.
The court, I think rightly, proceeded on the basis that threat is equivalent to use. In this context threat means a practical warning directed against a specific opponent. So a general display of military might, such as a Red Square parade in Soviet days or a routine Trident submarine patrol, would not alone constitute a threat at law. Further, mere possession is not forbidden at all.
What, then, of nuclear deterrence – is it a threat in law if missiles are targeted at key military installations of an opponent? On the face of it that would be a threat in law. It is arguable, however, that a deterrent nuclear threat against a nuclear rival is not a threat in that sense, for it is intended only to neutralise the potential nuclear threat of that opponent. There is something specious about this reasoning, as General Lee Butler discerns. Neutralisation demands balance and balance, parity. An inherent escalation of arms is built in. In the end it is hard to see what is the distinction between this and an overt arms race between competing aggressor nations.
The court’s decision does not leave much room either for the doctrine of mutually assured destruction. For self-defence could hardly encompass destruction of victim and aggressor alike. That would amount to self-destruction.
Before considering the legality of any current nuclear defence posture it may be helpful to set out the essentials of international humanitarian law applicable and of any other rules of the law of armed conflict which may bear upon them.
International humanitarian law is mainly embodied in treaties and conventions from the St Petersburg Declaration of 1868 to the Hague and Geneva Conventions of the last hundred years, set in the context of international customary law. For present purposes we can focus on three cardinal principles. The first is that the armed forces of a state may not target civilians. Hence they must not in general use weapons which are incapable of discrimination between military targets and the civilian population. The second is that it is forbidden to use inhumane weapons which are designed to cause unnecessary suffering to combatants (and obviously also to any civilians caught up in combat). The third principle is the famous Martens clause from the 1899 Hague Convention which asserts that, apart from international agreements, civilians and combatants alike remain under the protection “of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience”. The principles of the Martens clause are restated in Art. 1 (2) of the Geneva Protocol 1, 1977, ratified by this country at the end of 1997.
Protocol I also sets out the three basic rules governing the conduct of hostilities as follows: (I) the right of parties to a conflict to choose methods or means of warfare is not unlimited (Art. 35 (1); (2) the employment of weapons or methods of warfare of a nature to cause superfluous injury is forbidden (Art.35 (2)); and (3) civilians and civilian objects must not be the target of attack (Arts.48,50 and 52). The Protocols together are regarded as reaffirming the customary law of military necessity, that military personnel and targets may be attacked but that collateral civilian injury and damage must not be excessive; and of proportionality, that when protection is not absolute, military needs and humanitarian factors are to be weighed against each other in assessing lawfulness.
As can be seen from the foregoing, international humanitarian law does not preclude an attack upon a genuine military objective because death and damage may be visited upon the adjacent civilian population and civilian objects, even on a very large scale, provided that it is not readily avoidable, is proportionate to the size of the military strike and is kept to a practical minimum. If it falls within these parameters a military strike which might otherwise breach humanitarian law is lawful. But this protection is not available to the military for a direct attack on a civilian population or for any use of inhumane weapons.
These then are the principles on which the lawfulness of the proposed use of a particular weapon is to be assessed. It is to be noted that in so far as they consist of international customary law they are part of the domestic law of this country.
Before turning to nuclear weapons in some detail certain conclusions may be drawn upon weapon use generally from the rules of humanitarian law which I have summarised. Firstly, on those principles the doctrine of total war which developed before and during World Mar II is effectively outlawed. It can no longer be regarded as a legitimate military objective to destroy the enemy’s economy, industry, social cohesion and will to resist by direct military force such as the area bombing which destroyed German cities like Dresden and British cities like Coventry. Secondly, use of a weapon of mass destruction would be unlawful almost by definition; for the target is the mass and the mass in question is the population as a whole, as Hiroshima and Nagasaki showed. Thirdly, the stringent limitations introduced by the 1977 Geneva Protocols on forcible reprisals leave little scope for relying on them to counter an opponent’s breach of international law. These are all expedients resorted to in World Mar II.
The nuclear weapon is a uniquely powerful and fearsome one whose full horror is hard to grasp. Other weapons of mass destruction pale into relative insignificance beside its appalling destructiveness. In a single microsecond one nuclear device can generate more energy than that released by all the conventional explosives used in all the wars up to the present day. Its power is orders of magnitude greater, weight for weight, than conventional explosives like TNT. Its force destroys through intense thermal radiation, a monstrous blast wave, searing direct nuclear radiation from the fireball and insidious indirect radiation from fall-out. The fireball of a detonated Trident warhead is said to have a diameter of half-a-mile across while the heat and blast extend miles further. Even that vast volume of devastation cannot be contained, for fall-out ultimately extends to every corner of the globe. No more than in space can it be contained in time. Some radiation products persist for tens or hundreds of years. The genetic effects on human and other life could last indefinitely.
These characteristics are shared by all practical nuclear devices scaled down, of course, for the smallest, which I believe is the suitcase bomb featured in the Equinox TV programme “Russian Roulette” on Channel 4 in July 1998. This is a plutonium bomb said to be 30-40 kilograms in weight with a power rating of 1 kilotonne. It is estimated that even this nuclear mini-bomb would flatten all buildings within half a kilometre with up to 50% fatalities up to 1 kilometre. A prevailing wind could carry fall-out as far as 25 kilometres downwind. This country’s nuclear armoury is now confined to Trident which is given a strategic and a sub-strategic capability. What the latter means has never been clearly stated. The power of the strategic warhead is said to be 100 kilotonnes, but this may be as much as 30% out. The sub-strategic warhead rating is speculative, but a figure of 40 kilotonnes has been mentioned (which again may be 30% out) on the basis that tritium boosting provides the strategic warhead yield, multiplying the trigger detonation by a factor of 10, then the sub-strategic warhead would have a power rating of about 10 kilotonnes (though it could, of course, be less). This compares with Hiroshima’s 15 kilotonne atomic bomb.
Features of such weaponry which are of legal significance are accuracy of delivery, the area of direct destruction and the extent of incidental injury and damage.
As to accuracy, I believe that Trident can deliver its missiles to a target in its 7,400 kilometre range with a high degree of accuracy for all its warheads. As regards direct destruction and the extent of incidental effects I doubt if precise arithmetic is needed. Equinox’s suitcase bomb would utterly destroy not merely the military command HQ which was its target but also the whole village in which it stood. A low yield Trident warhead would reduce a whole town to rubble. A high yield Trident warhead’s area of destruction would be city-sized, with six to seven times the destructive power of the Hiroshima bomb. Any of these warheads would appear to be a massively clumsy and militarily inefficient means of destroying realistically-sized military installations in or near any urban population. In such use they would be inherently indiscriminate, so by-passing the finer points of balancing military necessity against humanitarian considerations which was a sticking point for the British judge, Rosalyn Higgins, in the ICJ advisory case (in which she dissented).
If the foregoing analysis of nuclear weapons use is sound it is hardly surprising that the ICJ was unable to identify a definitely lawful use for nuclear weapons deployed at that time. But quite reasonably, it may be thought, they did not exclude the possibility that there might be a lawful use for some nuclear weapon defensively in some catastrophic extremity. This takes us into the area that troubled Judge Higgins, where compatibility with humanitarian law is a matter of balance, weighing military necessity against humanitarian considerations before legality can be determined. If a nation cares to build its defence policy around the deployment of nuclear weapons, with the enormous burden imposed upon the tax-payer and the ever-present risk of nuclear accident, one might infer a duty on that nation’s government at least to sketch in outline the aggression envisaged to which use of its nuclear weapons would be a proportionate response. I have failed to detect a justification of this kind in any of the strategic defence review supporting documents, but the fault may be mine. Of course, I can offer some possible help, for the goddam device which I imagined at the outset of this paper could become a threatening reality. But is it or a similar diabolical weapon deployed or likely to be developed? There is no evidence to that effect. Without a plausible justification related to a credible threat, continued deployment of nuclear weapons would start to take on the appearance of an aggressive rather than defensive posture. One would at any rate hope that the government of this country would not ignore international law in the next strategic defence review.
What is the present Government’s position? In a letter to me dated 14 July 1998 the Defence Secretary, referring to the ICJ advisory opinion, wrote as follows: “We are confident that it does not require a change in our or NATO’s nuclear deterrence policy. We would only consider the use of nuclear weapons in self-defence and in extreme circumstances. We have always maintained that the use of nuclear weapons, like all weapons, would be subject to the requirements of international law, and humanitarian law, applicable in armed conflict. We have consistently taken the view that the legality or otherwise of use of any nuclear weapon can only be determined in the light of all the circumstances applying at the time such use is being considered”. So far so good, but this gives no guidance whatever as to the extreme circumstances which are envisaged. Without some specification the true character of our defence posture can hardly be gauged.
Later in the letter, replying to a suggestion that no state now expressly endorses a nuclear first use policy, the Secretary of State writes: “There is no secret about this, although it is frequently misunderstood. We and the Alliance have always made clear that we reserved the right of limited first use of nuclear weapons in extreme circumstances to persuade an aggressor to desist if no other means are available to us …. to give up this possibility would be to abandon the war prevention role that nuclear weapons can play while we work towards their global elimination”. If this is, as it seems to be, an implicit threat to counter the aggressive threat or use of conventional force with a nuclear first hit, one is bound to ask what conventional force is envisaged to which a nuclear retort would be a proportionate response, bearing in mind that any first use is likely to engender nuclear escalation. On an alternative reading those words might mean only that, in the transition to global elimination of nuclear weapons, to abandon an established first use policy unilaterally would risk destabilising the prevailing phase of relative world peace. But the present opportunity for control and elimination of nuclear weapons must be urgently pursued, as the ICJ enjoined, if it is not to be squandered. Evidence of the required urgency is not too obvious.
Finally what is the answer to the legal question raised at the end of my historical parable? Threat of the goddam device could qualify for the possible self-defence exception postulated in the advisory opinion if balancing humanitarian considerations against military necessity pointed that way. It would be a matter of weighing the certain loss of all life against the loss of tens of millions of lives, and it would not be difficult to give an affirmative answer. However, one may think that the scenario sketched to get that result is eccentric in the extreme and bears little relationship to prevailing strategic realities. The ICJ’s postulated exception gives cold comfort to cold warriors, that is, to protagonists of nuclear arms.
The Martens clause reminds us that the dictates of public conscience are a creative source of international humanitarian law, as the existence of the International Red Cross bears witness. Each of us is a keeper of the public conscience. We can, if so minded, help to build the future development of international humanitarian law on the foundation of the ICJ advisory opinion so as to promote the rule of law among nations. If governments too could be persuaded to join in this endeavour the rule of international law would be a realistic prospect for the coming millennium.
(This article is based on the text of a speech delivered in Oxford Town Hall on 15 October 1998)
Hierarchical Display of Nuclear weapon
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- Spanish: Arma nuclear
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