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A non liquet on nuclear weapons

A non liquet on nuclear weapons – The ICJ avoids the application of general principles of international humanitarian law

28-02-1997  International Review of the Red Cross no 316, p.76-91 by Timothy L.H. McCormack

Dr Timothy L.H. McCormack is the inaugural Australian Red Cross Professor of International Humanitarian Law, Faculty of Law, The University of Melbourne, Australia. The author wishes to thank Professor Gillian Triggs of the Faculty of Law, The University of Melbourne, and Robert J. Mathews OAM, member of the Australian Red Cross Advisory Committee on International Humanitarian Law, for their helpful comments on an earlier draft of this article. Thanks are also due to Justine Braithwaite for her excellent research assistance and her own helpful suggestions in the preparation of the article. 

1. Introduction

The Advisory Opinion delivered by the International Court of Justice (ICJ) on the Legality of the Threat or Use of Nuclear Weapons was a somewhat disappointing if not entirely unexpected decision [2]. After the final paragraph, which constitutes the dispositif, all fourteen judges appended either personal declarations, separate opinions or dissenting opinions to indicate the extent to which they agreed or disagreed with specific findings and particular aspects of the reasoning behind the Opinion. 

Some findings were approved unanimously — in particular, the reaffirmation that any use of nuclear weapons is subject to the principles of customary international law governing the conduct of armed conflict [3], and the reminder to nuclear-weapon States of the obligation to negotiate and reach agreement on a comprehensive ban on nuclear weapons [4]. These findings constitute two positive aspects of the Opinion. However, on the crucial issue of the legality of the threat or use of nuclear weapons, only seven judges could endorse the finding of the Court. The other seven judges dissented from the decision for different reasons. According to Article 55(2) of the Statute of the Court, the President has a casting vote in the event of a split decision. In this case, President Bedjaoui voted for the finding in the Joint Opinion, and as a consequence the position enunciated in the dispositif is the prevailing one.

The Court determined that, despite the lack of a specific prohibition on the threat or use of nuclear weapons in conventional or in customary international law, the general principles of customary international law, particularly the principles of international humanitarian law, would apply to any threat or use of nuclear weapons. Although the Court was able to conclude that the use of nuclear weapons “seems scarcely reconcilable with respect for” the principles of international humanitarian law, it felt compelled to reach a qualified conclusion because it considered that it did not have “sufficient elements to enable it to conclude with certainty that the use of nuclear weapons would necessarily be at variance with the principles and rules of law applicable in any circumstance” [5]. International law has traditionally distinguished between the law regulating the legitimate resort to force (the jus ad bellum) and the law regulating the actual deployment of force (the jus in bello)Any legitimate exercise of force must be consistent with both sets of principles. The Opinion, however, confuses the jus ad bellum with the jus in bello, since the majority of the Court declared a non-finding (non liquet) — a determination that the possibility of a legitimate use of nuclear weapons in an “extreme circumstance of self-defence, in which the very survival of a State would be at stake”, could not be ruled out [6].

In the light of the majority’s non-finding, the statement that “although the applicability of the principles and rules of humanitarian law and of the principle of neutrality to nuclear weapons is hardly disputed, the conclusions to be drawn from this applicability are, on the other hand, controversial” [7] may well rank as one of the great understatements in the jurisprudence of the Court. A split decision was always a likely outcome. However, the fact that the majority qualified its ruling on the illegality of the threat or use of nuclear weapons by referring to an “extreme circumstance of self-defence” rather than arguing, for example, that such threat or use may not necessarily be inconsistent with the jus in bello was both a surprise and a disappointment.

The purpose of this article is to consider the implications of the Advisory Opinion for international humanitarian law. In its reasoning, the majority of the Court overlooked the normative significance of the Nuclear Non-Proliferation Treaty (NPT) [8] as regards the use of nuclear weapons and also failed to perform the anticipated judicial function of applying the general principles of international humanitarian law to the use of nuclear weapons. In effect, it declared that the rules of international law on the use of nuclear weapons would remain uncertain in the absence of a comprehensive agreement on complete nuclear disarmament. The conclusion of this article is that, while the Opinion has some positive results for international humanitarian law, the Court failed to take full advantage of the opportunity presented by the case to clarify the applicability of long accepted principles of customary international law to a specific category of weapons. 

2. Lack of a conventional prohibition on the use of nuclear weapons

The Court concluded that there was no comprehensive and universal prohibition on the threat or use of nuclear weapons in conventional international law. According to the Opinion, “the pattern until now has been for weapons of mass destruction to be declared illegal by specific instruments” [9]. The Court contrasted the existence of the Biological Weapons Convention (BWC) [10] and the Chemical Weapons Convention (CWC) [11], which constitute comprehensive prohibitions on biological weapons and chemical weapons respectively, with the failure of the international community to impose a comprehensive ban on nuclear weapons through a nuclear weapons convention [12]. Here, the ICJ conveniently failed to make a fundamental distinction between possession and use of weapons of mass destruction and omitted from the Opinion an analysis of key aspects of the NPT.

Global Significance of the NPT

The NPT is the key global multilateral treaty dealing specifically with nuclear weapons. The NPT is not a disarmament treaty and is correctly distinguished from the BWC and CWC in this respect. As the title of the NPT suggests, the primary objective of the treaty is to prevent the proliferation of nuclear weapons, particularly horizontal proliferation. The NPT allows for the continued possession of nuclear weapons by the five States declared to be nuclear-weapon possessors at the time the treaty was concluded, but it is arguable that this is only an interim measure pending agreement between those States on complete nuclear disarmament [13]. It ought not to be inferred that the NPT’s discriminatory concession to ongoing possession either authorizes or does not prohibit the use of nuclear weapons. 

Well before either the BWC or the CWC were agreed, there was already a norm in international law against the use of biological and chemical weapons. These particular treaty regimes were negotiated to ensure that such weapons would not be used in warfare and in recognition of the fact that the existing prohibition on their use would not necessarily, in and of itself, guarantee that they were not used. Thus, while there was a need to negotiate comprehensive treaty regimes in order to eliminate these weapons, it cannot be argued that there was no existing prohibition on their use in international law. The Court observed that both the BWC and the CWC had been negotiated and adopted “in [their] own contexts and for [their] own reasons” [14]. Surely this is because specific treaty regimes are required to achieve the comprehensive elimination of various categories of weapons since there are inevitably specific implications for verification of compliance with those regimes. The lack of a nuclear weapons convention incorporating a comprehensive prohibition on possession and use of nuclear weapons makes it difficult to contend that all possession of nuclear weapons is prohibited. Any attempt to eliminate nuclear weapons entirely will necessarily involve the negotiation of a treaty regime with specific provisions relating to the destruction of stocks, verification of compliance and continued peaceful uses of nuclear energy. However, the lack of such an instrument does not justify the ICJ’s willingness to overlook the significance of the existing NPT regime as it relates to the use of nuclear weapons.

The Opinion fails to mention that 183 States are now party to the NPT [15], 178 of which have undertaken to respect a comprehensive prohibition on the production, acquisition, stockpiling, testing and use of nuclear weapons. The non liquet on the question of whether it is legal to use or to threaten to use nuclear weapons is, therefore, a discriminatory one in that it only applies to the five nuclear-weapon States party to the NPT (coincidentally the permanent members of the Security Council) and to those States which have refused to join the NPT regime. For all other States, the international law on nuclear weapons is abundantly clear: the threat or use of nuclear weapons is illegal since treaty law specifically and explicitly prohibits it. The normative significance of the NPT is overlooked in the Advisory Opinion, which groups the discussion of the NPT with that of the regional nuclear weapon free zone treaties.

Acquiescence of non-nuclear-weapon States in the possible use of nuclear weapons?

In linking the discussion of the NPT to the Treaties of Tlatelolco [16] and Rarotonga [17] and to their Protocols, the Court highlighted the positive [18] and negative [19] security assurances given by nuclear-weapon States pursuant to these instruments as well as to the statements made by representatives of these States at the NPT Review and Extension Conference in New York in 1995 [20]. These security assurances include reservations by the nuclear-weapon States regarding the use of nuclear weapons in certain circumstances [21]. Since the nuclear-weapon States do not feel bound by a prohibition on the threat or use of nuclear weapons, the Opinion seems to maintain that no such prohibition exists. The majority of the Court observed that the States party to the Treaties of Tlatelolco and Rarotonga had not objected to the reservations on the possible use of nuclear weapons that the nuclear-weapon States had made to the protocols to those treaties [22]. The implication is that such acquiescence is further proof that States, in practice, do not consider that there is a prohibition on the threat or use of nuclear weapons. 

Vice-President Schwebel was more explicit about the acquiescence of the non-nuclear-weapon States in the position of the nuclear-weapon States, which reserve the right to use nuclear weapons in certain circumstances. In his Dissenting Opinion, he explicitly argued that this position had been supported by the practice of many of the world’s non-nuclear-weapon States which had sheltered under the nuclear umbrellas of their nuclear-weapon allies [23]. Judge Schwebel conceded that it would be too much to argue that such acquiescence supported opinio juris in favour of the legality of the threat or use of nuclear weapons (particularly given the vehement protest registered in successive UN General Assembly resolutions) [24]. However, he did argue that it acted to “abort the birth or survival of opinio juris to the contrary” [25].

Judge Schwebel’s analysis of the effect of the acquiescence of those non-nuclear-weapon States “sheltering under the umbrella” of their nuclear-weapon allies would undoubtedly be contested by many of the “beneficiary” States. As a party to ANZUS [26], the tripartite security alliance between Australia, New Zealand and the United States, my own State, Australia, has been under the American nuclear umbrella since 1951. Despite any apparent contradiction, the Australian government has argued that the threat or use of nuclear weapons is illegal in all circumstances [27]. Moreover, it has consistently maintained that Article VI of the NPT imposes a binding obligation on the nuclear-weapon States Parties to work towards, and to achieve, complete nuclear disarmament [28]. The right of the NPT nuclear-weapon States to possess nuclear weapons, at least on an interim basis, does not give them the automatic right to use nuclear weapons. The right to possess nuclear weapons is arguably justified by the fact that unilateral nuclear disarmament by the five nuclear-weapon States party to the NPT may be neither feasible nor desirable [29]. Possession is allowed pending a phased reduction that should eventually lead to the complete elimination of nuclear weapons.

Judge Schwebel approvingly cited the argument put forth by the United Kingdom before the Court that “the entire structure of the Non-Proliferation Treaty (…) presupposes that the parties did not regard the use of nuclear weapons as being proscribed in all circumstances” [30]. Many non-nuclear-weapon States party to the NPT would argue, however, that an admitted right to possession, pending agreement on a ban on possession and use, ought not to imply a right to use such weapons in the interim. Indeed, it would be more accurate to say that the structure of the NPT presupposes that the parties accepted the possession of nuclear weapons by the five nuclear-weapon States as a fact. The compromise reached in the treaty was for the non-nuclear-weapon States Parties to forego the right to develop, acquire, stockpile, test and use nuclear weapons in exchange for access to nuclear technology for peaceful purposes [31] and for the obligation of the nuclear-weapon States to negotiate in good faith for the elimination of their nuclear-weapon stockpiles [32]. The fact that the latter have not taken this obligation seriously has been a constant source of frustration for the former and of tension between the two. The preamble and entire text of the NPT show that its purpose is to prevent the horizontal spread of nuclear weapons and to achieve their eventual elimination. Thus, the vast vertical proliferation among the nuclear-weapon States is in clear disregard for the objects and purposes of the treaty, as well as for some of its specific obligations [33].

Without explicitly saying so, the majority of the Court found, in effect, that the five nuclear-weapon States, plus those States which have steadfastly refused to become party to the NPT, were in the privileged position of possibly being permitted to use nuclear weapons in self-defence while all other States — because of their obligations pursuant to the NPT — were not. The discriminatory effect of this finding is anathema to the non-nuclear weapon States party to the NPT [34] and was contemptuously dismissed in the Dissenting Opinions of Judge Shahabuddeen and Judge Weeramantry. According to Judge Shahabuddeen, the Court’s finding was tantamount to saying that the principal object and purpose of the NPT was not to prevent the spread of a dangerous weapon but to ensure that the “enjoyment [sic] of its use was limited to a minority of States”.

The Court found unanimously that there was an international legal obligation to pursue and to conclude negotiations leading to comprehensive nuclear disarmament under “strict and effective international control” [35]. Unfortunately, the implication of its non liquet as to the legality of the threat or use of nuclear weapons is that only a specific treaty requiring complete nuclear disarmament will remove the uncertainty. In the absence of such an instrument, the fact that possession is accepted is somehow seen as evidence that there is no clear and complete prohibition on use. According to the majority view, even the general principles of international humanitarian law which are reaffirmed as customary norms and which apply to the threat or use of nuclear weapons do not remove the non liquet.

3. The general principles of international humanitarian law

Steps in the Court’s reasoning

Several steps in the Court’s reasoning are crucial to an understanding of its approach to the general principles of international humanitarian law as they relate to the threat or use of nuclear weapons. First, the Court acknowledged the uniquely devastating characteristics of nuclear weapons. The process which results from the fission of the atom releases two distinct forces — both “immense quantities of heat and energy” and “powerful and prolonged radiation” [36]. The Court conceded that the effects of a nuclear blast are vastly more powerful than those of other weapons and that the phenomenon of radiation is unique to nuclear weapons [37].

Secondly, the Court observed that any threat or use of nuclear weapons was regulated by the relevant principles of international law, in particular international humanitarian law. This obvious statement of principle was explicitly accepted by all the States that had appeared before the Court, including all five declared nuclear-weapon States [38].

Thirdly, the Court identified the customary rules developed through State practice which were relevant to the issue before the Court. In particular, the Court reiterated the long-standing principle that the “right of belligerents to adopt means of injuring the enemy is not unlimited” [39] and stated that the key limitations relevant to the present case were the well-known principle of distinction and the prohibition on the infliction of unnecessary suffering [40]. The principle of distinction provides protection to civilians caught up in armed conflict [41]. Parties to a conflict are not permitted to make civilians the object of an attack or to use weapons that do not distinguish between military and civilian targets [42]. As for the prohibition on the infliction of unnecessary suffering, it provides protection to combatants in an armed conflict. Parties to a conflict are not entitled to rely on the deployment of weapons which cause injuries that are superfluous in relation to the achievement of legitimate military objectives [43].

Prima facie, the application of these principles to the threat or use of nuclear weapons, particularly in view of the earlier steps in the Court’s reasoning outlined above, would lead to a conclusion of illegality in almost all conceivable circumstances. Certainly the use of nuclear weapons against a civilian population centre would fall within the scope of the prohibition. However, arguments have often been raised that small, low-yield tactical nuclear weapons could be deployed against military targets remote from civilian population centres and that any such deployment may not necessarily be inconsistent with the general principles of international humanitarian law [44]. Many observers had expected the Court to place much greater emphasis on this question; at the very least, it seemed reasonable to think that it would attempt to explain the “cardinal principles” of international humanitarian law and to endeavour to apply them in different scenarios involving the threat or use of nuclear weapons. Surely, the application of general principles to specific situations is fundamental to the judicial process. As Judge Higgins stressed in the extract from her Dissenting Opinion quoted at the commencement of this article, this is precisely what the Court is supposed to do. 

Failure to apply the general principles

As it is, the Court wholly failed to enter into this process. Instead, it merely stated that while the use of nuclear weapons seemed “scarcely reconcilable” with the general principles of international humanitarian law, it was unable to “conclude with certainty that the use of nuclear weapons would necessarily be at variance with the principles and rules of law (…) in any circumstance” [45]. The Court did not provide any insight into what particular circumstances would render the use of nuclear weapons consistent with these principles. In the first limb of sub-paragraph (2)E of the dispositif, the Court stated that the threat or use of nuclear weapons “would generally be contrary to the rules of international law applicable in armed conflict”. While the use of the qualification “generally”‘ implies the possibility of an exception to this proposition, again the Court did not indicate the exceptional circumstances in which the threat or use of nuclear weapons would be consistent with these rules. In her persuasive Dissenting Opinion, Judge Higgins criticized the concept of general illegality because of its lack of precision and its consequent ambiguity in relation to the question posed to the Court — a question which the Court chose to answer but then, according to Judge Higgins, failed to do so adequately:

“What does the term ‘generally’ mean? Is it a numerical allusion, or is it a reference to different types of nuclear weapons, or is it a suggestion that the rules of humanitarian law cannot be met save for exceptions? If so, where is the Court’s analysis of these rules, properly understood, and their application to nuclear weapons? And what are any exceptions to be read into the term ‘generally’? Are they to be linked to an exceptional ability to comply with humanitarian law? (…) The phraseology of paragraph 2E of the dispositif raises all these questions and answers none of them.” [46]

The failure of the Court to apply the principles of international humanitarian law to the threat or use of nuclear weapons led several judges to dissent from the Joint Opinion. Judges Weeramantry and Koroma both argued that the uniquely devastating characteristics of nuclear weapons would inevitably render any use of such weapons inconsistent with the general principles of international humanitarian law and that the Court’s own reasoning ought to have led it “inexorably” to this conclusion [47]. Judge Shahabuddeen suggested that a conclusion of illegality in all circumstances was open to the Court on the evidence before it and that, consequently, the Court’s non-finding was inappropriate [48].

Judge Higgins, also in dissent, indicated the sort of approach she thought the Court ought to have taken in reviewing the applicability of general principles of international humanitarian law. In relation to the general principle of distinction and its attendant prohibition on weapons which are incapable of discriminating between combatants and non-combatants, for example, Judge Higgins recognized as self-evident that any use of nuclear weapons against a civilian target was clearly illegal. However, the use of nuclear weapons against a military target which might result in “collateral” damage to civilians was a more complicated issue. Here the law required a balancing act between military necessity and humanity. Any “collateral” damage must be proportionate to the achievement of the legitimate military objective and this would inevitably involve questions of degree. Even if a target was legitimate and the use of nuclear weapons was the only way of destroying it, the user might still have to justify a “necessity” which would result in massive collateral damage to civilians. Judge Higgins asserted that nuclear weapons were “not monolithic in all their effects” and that they included a variety of weapons [49]. However, to the extent that any particular nuclear weapon was incapable of being targeted solely at a military objective, and so could not distinguish between military and civilian targets, it was unlawful [50].

Judge Higgins also considered the general prohibition against the deployment of weapons which cause unnecessary suffering or superfluous injury. She explained that unnecessary suffering was not synonymous with horrendous suffering. Again, the application of the general principle required a balancing act between military necessity and humanity, but that did not automatically mean that there was a prohibition against an objective level of suffering. This begged the question: what military necessity could ever be so grave as to justify the infliction of the sort of suffering which could be caused by nuclear weapons? These were the types of questions which the Court ought to have asked itself and, if it was to give a qualified answer as to the legality of nuclear weapons, ought also to have answered. 

4. Possible legitimate use of nuclear weapons in self-defence

These criticisms of the Court’s findings are telling enough. However, it is the next stage of the Opinion that defies logic. The Court returned to the question of the right to resort to force in self-defence and articulated the non liquet in its observation that “it cannot reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in anextreme circumstance of self-defence, in which its very survival would be at stake” [51]. This same formula is reiterated in the second limb of sub-paragraph (2)E of the dispositif. By linking the non liquet as to the possible lawful use of nuclear weapons in self-defence to the qualification that use would “generally” be inconsistent with international humanitarian law, the Court did not rule out the possibility that a particular use of nuclear weapons may be lawful even though it is contrary to international humanitarian law [52].

This finding not only represents a staggering confusion between the jus ad bellum and the jus in bello: as Judge Higgins noted, it also extends beyond the most optimistic claims for the legality of the use of nuclear weapons by the nuclear-weapon States which appeared before the Court — all of which “fully accepted that any lawful threat or use of nuclear weapons would have to comply with both the jus ad bellum and the jus in bello.” [53] When the Court determined in its Joint Opinion that the principles of international humanitarian law applied to the threat or use of nuclear weapons, it had already explicitly acknowledged that the nuclear-weapon States accepted the applicability of these principles [54]. Indeed, the nuclear-weapon States themselves were inviting the Court to apply the general principles of international humanitarian law to the threat or use of nuclear weapons and to find that not all uses would necessarily be in conflict with these principles. Even if some, or all, of the nuclear-weapon States believed in a right to use nuclear weapons in an extreme case of self-defence, these States still accepted the applicability of humanitarian principles. 

What is perhaps the most disconcerting potential consequence of the Court’s non liquet has already been mentioned. In practice, the uncertainty in international law as to whether nuclear weapons may be used in self-defence only benefits the five declared nuclear-weapon States and the three so-called nuclear “threshold” States which have chosen not to become party to the NPT as non-nuclear-weapon States [55]. While all 178 non-nuclear-weapon States Parties have agreed to forego possession and hence use of nuclear weapons, these other States have not, and foreign ministry lawyers in Jerusalem, New Delhi and Islamabad surely must have cited the Court’s Joint Opinion in vindication of their respective governments’ decision to stay out of the NPT. As for non-nuclear-weapon States Parties enjoying less than warm relations with any one of the three nuclear threshold States, they had every reason for dismay: by not ruling out the possibility that States may use nuclear weapons in self-defence, the Court legitimized the nuclear-weapon programmes of the three States not bound by specific treaty obligations. Why should these States be entitled to develop nuclear-weapon programmes with the possibility of resorting to such weapons in self-defence, while 178 other States have accepted a treaty prohibition on that option?

One other unfortunate consequence of the Opinion has also already been alluded to. The Court has helped legitimize a compartmentalization of international law by reaffirming that the general principles of customary international humanitarian law do not automatically apply to specific weapons. In the absence of a comprehensive and specific treaty ban on the production, acquisition, testing, stockpiling and use of nuclear weapons, the Court was unwilling to declare the threat or use of nuclear weapons illegal in all circumstances. It did not seem to matter how well developed or how widely accepted the general principles were. As we have already seen, the Court explicitly acknowledged that the nuclear-weapon States themselves accepted the applicability of these principles. Even so, it still seemed to insist that the lack of agreement within the international community on complete nuclear disarmament was fundamental to its non liquet.

5. Conclusion

It is true that the Court’s opinion has some positive implications for the development of international law regarding the legality of the threat or use of nuclear weapons. The Court’s unanimous reaffirmation of the obligation under Article VI of the NPT to pursue and to conclude negotiations on nuclear disarmament [56] is a helpful statement even if, strictly speaking, this finding is beyond the scope of the UN General Assembly’s request. Obviously, North-South tensions in relation to the NPT, the Comprehensive Nuclear Test Ban Treaty [57] and ongoing multilateral discussions on nuclear weapons will not dissipate until an agreement is reached.

It is also true that the Court’s determination that the principles of international humanitarian law applicable to the deployment of weapons constitute customary international law, and are therefore binding regardless of consent, is welcome. However, the Court’s inability to translate the general principles into a substantive prohibition on the use of nuclear weapons ought to raise concern. The international law of disarmament regarding specific weapons is in a perpetual state of reaction — seeking to catch up with what are euphemistically called “advances in weapons technology”. The recent agreement on the prohibition of laser and blinding weapons, negotiated in response to the development of a new technology but before deployment of that technology as a weapon of war, was an unprecedented success [58]. Yet even in this cause célèbre, the negotiations of the international community were only a response to the technological developments and did not pre-empt them.

The international community has agreed to, and continues to express its commitment to, general humanitarian principles. However, the ICJ itself has acknowledged the unfortunate fact that there is a gap between those principles and their application to specific categories of weapons. Until that gap is closed, one has the sense that the international community will always be reacting to technology and to new expressions of inhumanity. We may yet make substantial progress on nuclear weapons but there will surely be future technological developments unforeseen or unannounced at this stage of history. The ICJ had a rare opportunity in this case to pronounce on the application of principles to practice. Although it was unable to conclude that the threat or use of nuclear weapons would be inconsistent with those principles in all circumstances, it could at least have engaged in the process of applying them. It is to be regretted that the Court failed to grasp this opportunity more readily.

Notes :

1. International Court of Justice, Legality of the threat or use of nuclear weapons, Advisory Opinion of 8 July 1996, Dissenting Opinion of Judge Higgins, para. 32. 

2. International Court of Justice, Legality of the threat or use of nuclear weapons, Advisory Opinion of 8 July 1996, Opinion of the Court (hereinafter referred to as “Opinion”). 

3. Opinion, para. 105(2)D. 

4. Ibid., para. 105(2)F. 

5. Ibid., para. 95. 

6. Ibid., para. 105(2)E. 

7. Ibid., para. 90. 

8. Treaty on the Non-Proliferation of Nuclear Weapons, of 1 July 1968. 

9. Opinion, para. 57. 

10. Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, of 10 April 1972. 

11. Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, of 13 January 1993. 

12. Opinion, para. 57. 

13. Article VI of the NPT (see note 8) states: “Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear 
disarmament, and on a treaty on general and complete disarmament under strict and effective international control”.

14. Opinion, para. 57. 

15. As at 30 September 1996. 

16. Treaty for the Prohibition of Nuclear Weapons in Latin America, of 14 February 1967. 

17. Treaty on the South Pacific Nuclear-Weapon-Free Zone, of 6 August 1985. 

18. The positive declarations are to the effect that the nuclear-weapon States will come to the assistance of any 
non-nuclear-weapon State Party the subject of an attack by nuclear weapons. 

19. The negative security guarantees are to the effect that the nuclear-weapon States will not use nuclear weapons against the non-nuclear-weapon States party to the various instruments. These guarantees are usually accompanied by reservations whereby the guarantee will not apply where the non-nuclear-weapon State Party is an ally of a nuclear-weapon State involved in armed conflict against another State. On the security guarantees pursuant to the Treaties of Tlatelolco and Rarotonga, see Jozef Goldblat, Arms Control, 1994, pp. 150-155. 

20. See UN Doc. S/Res/984 (1995), noting the assurances of the nuclear-weapon States. 

21. Opinion, para. 62(b). 

22. Ibid., para. 62(c). 

23. Dissenting Opinion of Judge Schwebel. 

24. The succession of resolutions commenced with UN GA Res. 1653 (1961). 

25. Dissenting Opinion of Judge Schwebel. 

26. Security Treaty between Australia, New Zealand and the United States of America, of 1 September 1951. 

27. See, e.g., oral statement on behalf of Australia by Senator Gareth Evans QC, Minister of Foreign Affairs, “International Court of Justice: Requests for Advisory Opinions on nuclear weapons submitted by the World Health Organization and the United Nations General Assembly — The case for illegality”, reprinted in Australian International Law Journal, 1994-95, p. 178. 

28. See, e.g., statement by Richard Starr, Ambassador for Disarmament, Main Committee 1 of the Review and Extension Conference of the States Parties to the NPT, New York, 19 April 1995; and concluding statement by Richard Butler, Permanent Representative of Australia to the Review and Extension Conference of the States Parties to the NPT, New York, 12 May 1995 (copies on file with author). See also Gareth Evans and Bruce Grant, Australia’s foreign relations: In the world of the 1990’s, 2nd ed., 1995, p. 86. 

29. It should be noted that at least one other State has completed unilateral nuclear disarmament and has become a non-nuclear-weapon State party to the NPT. 

30. Dissenting Opinion of Judge Schwebel. 

31. Articles II, IV and V. 

32. Article VI. 

33. While the significant reduction of the nuclear arsenals of the US and the Russian Federation pursuant to the bilateral START Agreements between the two States has been encouraging, the remaining levels of nuclear warheads are still unwarranted. See, in particular, Report of the Canberra Commission on the Elimination of Nuclear Weapons, Department of Foreign Affairs and Trade, Canberra, 1996, pp. 24-28. 

34. As evidenced by statements made to this effect at the 1995 Review and Extension Conference of the States Parties to the NPT. 

35. Opinion, para. 105(2)F. 

36. Ibid., para. 35. 

37. Ibid

38. Ibid., para. 22. 

39. Article 22, Hague Regulations respecting the Laws and Customs of War on Land, of 18 October 1907; Opinion, para. 77. 
40 Opinion, para. 78. 

41. See the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949. 

42. Opinion, para. 78. 

43. Ibid

44. See, e.g. William O’Brien, “Legitimate military necessity in nuclear war”, 2 World Polity, 1960, p. 35. For analyses generally discussing the (in)compatibility of tactical nuclear weapons with international humanitarian law, see, e.g., Burns H. Weston, “Nuclear weapons versus international law: A contextual reassessment”, 28 McGill Law Journal, 1983, pp. 543, 581, 587; William R. Hearn, “The international legal regime regulating nuclear deterrence and warfare”, 61 British Yearbook of International Law, 1990, pp. 199, 232-44; Daniel J. Arbess, “The international law of armed conflict in light of contemporary deterrence strategies: Empty promise or meaningful restraint?”, 30 McGill Law Journal, 1984, pp. 89, 111-121; Elliot Meyrowitz, Prohibition of nuclear weapons: The relevance of international law, 1990, pp. 41-86. 

45. Opinion, para. 95. 

46. Dissenting Opinion of Judge Higgins, para. 25. 

47. See Dissenting Opinions of Judge Weeramantry and Judge Koroma. 

48. Dissenting Opinion of Judge Shahabuddeen. 

49. Dissenting Opinion of Judge Higgins, para. 24. 

50. Ibid

51. Opinion, para. 97 (emphasis added). 

52. Dissenting Opinion of Judge Higgins, para. 29. 

53. Ibid

54. See Opinion, para. 22. 

55. These three States are Israel, India and Pakistan. The other non-parties to the NPT, with the exception of Brazil,which has committed itself to full-scale nuclear safeguards in a bilateral agreement with Argentina, include Angola, Cook Islands, Cuba, Djibouti, Hong Kong, Oman and Taiwan. These entities hardly represent a major threat in terms of the proliferation of nuclear weapons. 

56. See Opinion, paras. 98-103. 

57. The text of the CTBT was tabled at the UN General Assembly as UN Doc A/50/1027 (26 August 1996). The text was approved in a resolution at a special meeting reconvening the 50th Session of the UN GA. See A/RES/50/245 (20 September 1996).

58. See the text of Protocol IV to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, of 13 October 1995 (not yet in force). See also B.M. Carnahan and M. Robertson, “The Protocol on ‘Blinding Laser Weapons’: A new direction for international humanitarian law”, American Journal of International Law, 1996, p. 484; “The Vienna Review Conference: Success on blinding laser weapons but deadlock on landmines”,International Review of the Red Cross, No. 309, November-December 1995, p. 672. 

Two Views of the Illegality of Nuclear Weapons

The International Court of Justice and the Scottish High Court
Published as Peter Weiss, The International Court of Justice and the Scottish High Court: Two Views of the Illegality of Nuclear Weapons,
Waseda Proceedings of Comparative Law, Vol.4 (2001), p. 149, Institute of Comparative Law, Waseda University, Tokyo. pdf file

THE INTERNATIONAL COURT OF JUSTICE AND THE SCOTTISH HIGH COURT

Two Views of the Illegality of Nuclear Weapons

Peter Weiss, July 31, 2001

I consider it a singular honor to be invited to give this lecture at one of Japan’s most distinguished universities (Waseda University). As a survivor of the World War II Holocaust, in which part of my family perished, I have long felt a kinship with the Japanese people who are committed to rid the world of nuclear weapons and particularly with the hibakusha, who are dedicating their lives to the noble task of ensuring that what happened to them will never happen to another human being. My topic today will be based on the actions of three European women who, although not victims of nuclear devastation themselves, are entitled, by virtue of their unceasing devotion to nuclear abolition, to be regarded as soul sisters to the hibakusha.

On July 8, 1996, the International Court of Justice rendered its momentous decision in the Nuclear Weapons Case1. In 270 pages of text, including separate opinions by each of the fourteen judges, it answered the following question put to it by the General Assembly of the United Nations:

Is the threat or use of nuclear weapons in any circumstance permitted under international law?

By thirteen votes to one, that of Judge Oda of Japan, it held the question to be admissible.

Then, preceded by 105 paragraphs of closely reasoned discussion, it made the following holding, or dispositif, as the conclusions of the World Court are called:

A.. Unanimously, There is in neither customary nor conventional international law any

specific authorization of the threat or use of nuclear weapons.

B. By eleven votes to three, There is in neither customary nor international law any comprehensive and universal prohibition of the threat and use of nuclear weapons as such.

C. Unanimously, A threat or use of force by means of nuclear weapons that is contrary to Article 2 of, paragraph 4, of the United Nations Charter and that fails to meet all the requirements of Article 51 is unlawful.

D. Unanimously, A threat or use of nuclear weapons should also be compatible with the requirements of the international law applicable in armed conflict, particularly those of the principles and rules of international humanitarian law, as well as with specific obligations under treaties and other undertakings which expressly deal with nuclear weapons.

E. By seven votes to seven, It follows from the above-mentioned requirements that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law.

However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake.

F. Unanimously, There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.

On June 8, 1999, three courageous women, Angela Zelter, Bodil Roder and Ellen Moxley, managed to board a British Royal Navy vessel, the “Maytime”, moored in a Scottish lake, and to throw overboard certain computer equipment used to track the movements and communicate with submarines armed with nuclear Trident missiles. The Trident nuclear warheads have a force of 100 to 120 tons each, eight to ten times those of the bombs dropped on Hiroshima and Nagasaki. They are among the deadliest weapons in the current nuclear arsenals, each able to kill millions of people and to condemn millions more to a slow lingering death. The damage their use would cause to the environment and to future generations is unimaginable.

The women were arrested, charged with malicious damage to Her Majesty’s property, and came to trial before a jury on September 27, 1999 in Greenock Sheriff Court. First instance judges in Scotland are called Sheriffs and the judge assigned to the case was a woman, Sheriff Gimblett.

There have been many trials of this kind in the last half century in the United Kingdom, the United States and certain other countries, arising from the action of nuclear resisters in trespassing on government property or causing minor damage to nuclear weapons related government property. The normal defense in such cases, as it was in the Greenock case, is to offer factual evidence of the nature and effect of nuclear weapons and the nuclear weapons policy of the government involved, and legal evidence and arguments as to the illegality of such policy under customary international law. Taken together, this factual and legal evidence is intended to show that the defendants can avail themselves of the defense of necessity; that is, the principle recognized by virtually all legal systems that a minor breach of the law is justified if it leads to the prevention of a greater one and if there is no likelihood of preventing by legal means the greater one which will or may occur in the immediate or near future. In the great majority of the cases involving resistance to nuclear weapons, the courts will refuse to hear such evidence and will treat the proceedings as simply involving trespass upon or damage to government property Therefore, these cases normally last from a few hours to at most two or three days and end in the conviction of the defendants and the imposition of small fines or prison sentences. .

The Greenock case was an exception. Sheriff Gimblett considered it her duty to hear the evidence offered by the defendants, and to hear it both from them and from four expert witnesses: Professor Paul Rogers and Rebecca Johnston, highly qualified nuclear weapons researchers from the United Kingdom; Francis Boyle, a law professor and long-time anti-nuclear activist from the United States; and Ulf Panzer, a German judge who had himself, some fifteen years earlier, participated in actions protesting the siting of nuclear cruise missiles in Germany. As a result, the trial lasted over three weeks. At its conclusion the judge, who, under Anglo-American legal procedure, decides questions of law, leaving questions of fact to the jury, told the jury that, as a matter of law, the defendants had proved their case and therefore instructed the jury to acquit them. In doing so, she relied to a large extent on the ICJ Opinion.

In Scotland, as in many other jurisdictions, a conviction can be appealed, but an acquittal cannot. However, there exists in Scotland, whose judicial system differs considerably from that of England, a rather unique procedure called The Lord Advocate’s Reference. This enables the Crown, i.e. the prosecution, to in effect appeal the ratio decidendi, the principles on which a decision was based, by putting a number of questions to the Appeal Court of the High Court of Justiciary of Scotland. In the Greenock case the Crown, which evidently had not expected Sheriff Gimblett’s decision, put the following questions to the Appeal Court:

    1. In a trial under Scottish procedure, is it competent to lead evidence as to the content of customary international law as it applies to the United Kingdom?

    2. Does any rule of customary international law justify a private individual in Scotland in damaging or destroying property in pursuit of his or her objection to the United Kingdom’s possession of nuclear weapons, its action in placing such weapons at locations within Scotland or its policies in relation to such weapons?

    3. Does the belief of an accused person that his or her actions are justified in law constitute a defence to a charge of malicious mischief or theft?

    4. Is it a general defence to a criminal charge that the offence was committed in order to prevent or bring to an end the commission of an offence by another person?

The High Court’s extremely disappointing 33 page decision, answering all four questions in the negative, was rendered on March 30, 2001 2. As it constitutes the first detailed analysis of the ICJ Opinion by another judicial body, I propose to discuss at some length its tortured interpretation of the Opinion. First, however, a political point needs to be noted: Had the High Court in essence agreed with Sheriff Gimblett’s courageous decision, this would have opened the way for further actions of the type involved in the Greenock case to be undertaken with impunity from judicial prosecution; in other words, it would have meant, ultimately, the end of the United Kingdom as a nuclear power. Thus, it is perhaps no more than an example of what Vice-President Schwebel, in his dissenting opinion in the ICJ case, called the “titanic tension between State practice and legal principle.”

Indeed, the Scottish court gave away its sympathy with Judge Schwebel’s “titanic tension” by repeated references 3 to a 1964 British case, Chandler v. Director of Public Prosecutions, in which one of the judges, Lord Reid, held as follows:

It is in my opinion clear that the disposition and armament of the armed forces are and for centuries have been within the exclusive discretion of the Crown and that no one can seek a legal remedy on the ground that such discretion has been wrongly exercised … Anyone is entitled, in or out of Parliament, to urge that policy regarding the armed forces should be changed; but until it is changed … no one is entitled to challenge it in court.

That case, as I understand it, involved a legal challenge to certain budgetary dispositions concerning the armed forces of the United Kingdom. In that sense, the rationale for the holding in Chandler was similar to the political question doctrine in American law, which is often used by American courts to avoid ruling on issues which they consider to be within the prerogative of the legislature, even if they involve questions of law. But to suggest, as the Scottish court did, that a military policy which violates customary international law can be “within the exclusive discretion of the Crown” is to betray a grievous misunderstanding of one of the basic principles of international law.

In fact, the Court did treat the issue as justiciable, but only because the issue of justiciability was not raised by the Crown in the trial below or in the Lord Avocate’s Reference. But the very fact that the Court referred to the doctrine of the Chandler case suggests that what was in the judges’ minds was that the very notion of citizens challenging the government’s choice of weapons and tactics was still unacceptable in the nuclear age, as it had been for centuries before the invention of the atom bomb. The modern incarnation of this mindset is the doctrine of national security, which lurks in the shadows behind every political and legal attempt to justify the continuing reliance of the nuclear weapon states on these monstrous weapons, no matter in what technical and superficially rational terms such justification may be phrased.

In order to arrive at its dissection of the ICJ Opinion, the Appeal Court had to take a number of preliminary steps. It had to reformulate the defense as consisting of two separate arguments: First, that the deployment of Trident submarines by the government was illegal or criminal and that this justified the defendants’ actions which otherwise would have been criminal. Second, that the defendants acted out of necessity, which is a defense under Scots law 4. As to the first point, which relates to the fourth question put to it by the Crown, the Court categorically stated that “Apart from the defence of necessity, it is not a defence to a criminal charge that the actions complained of were carried out to prevent another person committing a crime.”5 This may be true as a general proposition, but it leaves open the question of the magnitude of the crime to be prevented and its proportion to the crime committed in the attempt at prevention. One can easily agree that seeing a person picking someone’s pocket in the subway does not justify killing that person or even assaulting him (although it may justify restraining him until the arrival of the police, which otherwise would be an offense). But what of the point raised by the defendants that, as was stated at Nuremberg, citizens have a right, if not an obligation, to take action to prevent crimes against humanity? The Court dismissed this as being restricted to the particular facts of the Nuremberg trials and not having risen to the level of a general principle of customary law ….6

There is, clearly, a symbiotic relationship between the defense of necessity and the defense of crime prevention. But, while it may be difficult to sustain the latter without a showing of necessity, the element of crime prevention is not inherently necessary to sustain the defense of necessity. This is illustrated by the example given by the Court in paragraph 34:

A vehicle rolling out of control towards a crowd might be intercepted by someone other than the owner or driver as the only way of preventing death or injury, even if the actions carried out caused damage to the vehicle. The contingency giving rise to the danger … appears to be immaterial.

But the Court then goes on to draw a distinction between dangers caused with and without the intervention of human actors:

… the Government’s actions in relation to Trident must be regarded as entirely lawful unless the breach of customary international law is established. If the Government’s actions were thus entirely lawful, notwithstanding any danger they might create, it is difficult to see how the defence of necessity could be invoked in relation to the otherwise criminal act of a third party.7

This raises two interesting questions: One, what if, before the ICJ Opinion, before the Geneva Conventions, before the Hague Conventions, before the Declaration of St. Petersburg, before, in other words, customary law had crystallized around the principles violated by nuclear weapons, some government or group or individual stood poised to use a devilish new method of killing millions of persons, inflicting genetic damage on untold future generations and destroying the environment of a good part of the earth’s surface? Would such an action be “entirely lawful”?

And two, if the necessity alleged to justify an otherwise illegal action is due to human action, what difference does it make whether such action is lawful or criminal? Take the example of the vehicle rolling toward a crowd. Suppose this is due to the fact that the driver, upon parking the vehicle on an incline, had failed to engage the emergency brake. A negligent action, surely, but hardly a criminal one. Thus, while there are good grounds to accuse the United Kingdom and other nuclear weapon states of illegal and perhaps criminal action in maintaining and threatening to use nuclear weapons, the horrendous potential or likely consequences of such conduct should be sufficient in themselves to justify action to prevent their occurrence.

Be that as it may, the Appeal Court rose, perhaps somewhat too eagerly, to what it perceived to be the challenge of the defendants to declare Trident a criminal enterprise, a challenge that was not contained as such in the four questions of the Lord Advocate’s Reference. In this respect, the Court said it was its “function to reach its own conclusion as to the rules of customary international law, taking full account but not being bound by, the conclusions reached by the International Court of Justice.” In fact, however, the Court failed to conduct its own review of customary law, except as it was discussed in the ICJ Opinion. It also failed to take into account developments subsequent to the date of the Opinion, such as the “unequivocal undertaking to accomplish the total elimination of their nuclear arsenals”, given by the nuclear weapon states on May 20, 2000 at the United Nations, all of which reinforce what the ICJ called the emerging opinio juris of illegality.

At the outset of its analysis, the Court echoes the position of all the nuclear weapon states that the Opinion is “an advisory opinion, not a judicial determination of customary international law.” But in the same paragraph, the Court states that “the advisory opinion may be regarded as confirmatory of the then rules of customary international law.”8 It is difficult to perceive the distinction between a confirmation and a determination of customary international law. It is a distinction without a difference. Therefore the attempt to diminish the importance of the ICJ Opinion by emphasizing its advisory nature is bound to fail.

The Court then proceeds to give a lengthy and reasonably fair account of the ICJ Opinion, section by section. Many of the Court’s interpretations of the Opinion, however, are open to challenge:

    1. In Par. 69, the Court states that the ICJ “distinguished” the right to life in Art. 6 of the International Covenant on Civil and Political Rights and the genocide convention and that various environmental laws do not specifically prohibit the use of nuclear weapons. But what the ICJ actually said was that Article 6 could be relevant by reference to the law of armed conflict, that the Genocide Convention could be relevant if intent was shown and that there are “important environmental factors that are properly to be taken into account in the context of the implementation of the principles and rules of the law applicable in armed conflict.

    2. In par. 71, the Court says that pars. 35 and 36 of the ICJ Opinion make it clear that what the ICJ had in mind were weapons of mass destruction and that, if it had considered that there was a distinct class of “small scale or tactical nuclear weapons which could be regarded as different … it would no doubt have made that clear.” It is always risky for one court to speculate about what another court might or might not have done. At any rate, the ICJ’s reference to the inadequacy of “the elements of fact at its disposal”, in the crucial second subsection of Section E of the dispositif, suggests that the Opinion may have come out differently had the ICJ been provided with “elements of fact” concerning small scale or tactical nuclear weapons. Note, in this connection, the ICJ’s complaint, in par. 94 of its Opinion, that “none of the States advocating the legality of nuclear weapons under certain circumstances, including the ‘clean’ use of smaller, low yield tactical nuclear weapons, has indicated what, supposing such limited use were feasible, were the precise circumstances justifying such use.”

    3. In par. 72, the Court states that at par. 42 of its opinion the ICJ acknowledges that the use of nuclear weapons in self-defense cannot be excluded in all circumstances , but fails to recognize that in the same paragraph the ICJ cautions that “a use of force that is proportionate under the law of self-defence, must, in order to be lawful, also meet the requirements of the law applicable in armed conflict which comprise in particular the principles and rules of humanitarian law.” The Court does not explain how the Trident nuclear warheads, which it has described earlier 9 as having an explosive force of “100 to 120 kilotons each, approximately eight or ten times larger than the weapons used at Hiroshima and Nagasaki”, could possibly, under any conceivable circumstance, be used in accordance with the requirements of humanitarian law.

    4. In par. 72, the Court avers that the ICJ did not see deployment as a deterrent as necessarily constituting a threat within the meaning of Art. 2(4) of the United Nations Charter. What the ICJ actually said was that this would depend on “whether the particular use of force envisaged would be directed against the territorial integrity or political independence of a State, or against the Purposes of the United Nations or whether, in the event that it were intended as a means of defence, it would necessarily violate the principles of necessity and proportionality.” Here again, the Court accepts as determinative for the present case the universe considered by the ICJ – all nuclear weapons, possessed by any state under any circumstance – rather than the much more limited universe of the Trident weapons, possessing certain characteristics and deployed by the United Kingdom under certain policies of the UK and NATO.

Following its parsing of the ICJ opinion leading up to the dispositif, the Court quotes and analyzes the dispositif itself. It expresses its puzzlement at the words “should” and “particularly” in Section D (“A threat or use of nuclear weapons should also be compatible with the requirements of the international law applicable in armed conflict, particularly those of the principles and rules of international humanitarian law.”) The choice of “should” is indeed somewhat puzzling, but the discussion preceding the dispositif makes it crystal clear that “should” is to be given the same meaning as “must”. There is, however, nothing strange about “particularly”. It could simply mean that ius in bello is more relevant to the illegality of nuclear weapons than ius ad bellum, both being branches of the law of armed conflict.

Having concluded that no illegality attaches to the deployment of Trident, the Court then proceeds to deliver itself of the somewhat astounding proposition that humanitarian law does not apply in time of peace. 10 Presumably this is advanced by way of dictum, since it is not responsive to any of the four questions addressed to the Court. But for at least two reasons, the proposition seems to be a case of literalness stretched to absurd limits. First, it ignores the well known criminal law principles of conspiracy to commit a crime, as well as preparation to commit a crime, accompanied by some overt act, as being themselves criminal. “Threatening” and “menacing” are also crimes, at least in Anglo-American law. The Court cites the ICJ’s reference to “the rules of international law applicable in armed conflict” to support its view that “in” literally means that these principles do not apply until armed conflict has broken out. But the ICJ Opinion is replete with references to the fact that the threat to use an illegal weapon, or to use a weapon in an illegal manner, is itself illegal. Surely this rule is not limited to threats made, directly or indirectly, once armed conflict has started, but must be seen as applying to any period preceding the outbreak of hostilities .

Second, while the Court disclaims an intent to draw fine distinctions between war and armed conflict, it seems oblivious to the difficulty of drawing a fine line between armed conflict and peace. Modern technology is in the process of substituting the computer for the musket, the laser for the bomb, the disabling of a command and control center for a siege laid to a town. At any given time, two less than friendly states may be engaged in any number of covert operations against each other, long before the shooting starts. We know what “conflict” is, but what is “armed”, in the 21st century?”

Finally, the Court returns to the question of necessity, to say “we cannot see any substance at all in the suggestion that what the respondents did was justified by necessity.”11 In support of this view, the Court points out that the action of the respondents – as the defendants are referred to at the level of the Appeal Court – was planned over a period of months, that what they did was not a natural or instinctive reaction to some immediate perception of danger, that there was no likelihood that Trident was about to be used and that what they did could not have had any conceivable impact upon the supposedly immediate risk.

This is the weakest part of the decision. It contrasts the action of the defendants to “a youngster brandishing a knife at another a foot away from him, and perhaps indicating by word and action that he intends to stab him then and there.”12 In doing so, it demonstrates how far removed from reality judges can be and what an uphill battle nuclear resisters face in getting courts to understand what the ICJ called the unique nature of nuclear weapons, which President Bedjaoui, who is about to retire from the World Court, called “the ultimate evil.”

Consider what lies behind those four points made by the Appeal Court to demonstrate that the defendants had not met the test of necessity under Scots law:

      • What they did could not have had any conceivable impact upon the supposedly immediate risk. On the contrary. The damage done to the equipment on board the “Maytime” could well have prevented communication with some Trident submarines during what may have been a brief but critical period. But more importantly, “what they did” has served as the most energizing factor in the movement to rid the world of nuclear weapons since the ICJ Opinion came down in 1996. The effect produced by the necessitated action must be viewed in terms of the field of action available to the actors. It would be nice to incapacitate the

      • Trident arsenal by seizing a knife about to be used to stab someone. It would also be utterly foolish to think that it could be done in so simple and direct a way. “What they did”, after years of fruitless peaceful protest, was the most effective way to express the necessity of doing something.

    •  

      They had prepared their action for months. What were they supposed to do? Decide, on the spur of the moment, that Trident posed an immense danger to the earth and to humanity and that they should therefore hie themselves to the well guarded Royal Navy base at Loch Goil, make their way unto the vessel “Maytime” and throw some random pieces of equipment overboard? Clearly, careful preparation was needed to carry out this operation and the fact that careful preparation was done in no way detracts from the perception that the operation was necessary.

 

  •  

    What they did was not a natural or instinctive reaction to a perception of immediate danger. True, instinct played no part in the decision of the three women. All had perceived the danger of nuclear weapons for years and had taken various actions to make policy makers and the public at large share that perception. But to say that their reaction to this danger was not natural is to denigrate the moral force at the core of their action. What, indeed, could be more natural for one realizing that instant catastrophe rides the seas with the Trident than to feel that something must be done?

  •  

    There was no likelihood that Trident was about to be used. In terms of the proportionality of the evil to be prevented by the otherwise criminal action, in a case of necessity, the temporal proximity of the event is not the only factor to be considered. One must consider the possibility, not simply the likelihood, of the event, and weigh it against the magnitude of the evil. A Trident on hairtrigger alert poses a potentially immediate risk of enormous harm, even though the likelihood of the harm occurring may not be more than one on a scale of one to ten at a given moment. At any rate, courts which dismiss the defense of necessity in nuclear resistance cases never come to grips with this fundamental question: If not now, when? When the button has been pushed and the missile is on its deadly way? When war has been declared, even though no one declares war any more? When the other side has launched its nuclear weapon or massive conventional attack and only seconds remain before Trident retaliates?

What lessons can we draw from this unfortunate decision? Let me suggest a few.

  1. There is no doubt that the importance of the ICJ Opinion has been diminished by this frontal assault on it by a respected and influential court. The Scottish decision has exposed its weaknesses and ambiguities and provided ammunition to those in the legal departments of the nuclear weapons states and their allies who see it as merely a restatement of humanitarian law principles without conclusive effect on the question of the illegality of threat and use of nuclear weapons under international law.

  2. On the other hand, we must strive to emphasize the points in the ICJ Opinion which the Scottish decision sought to minimize or gloss over:

    1. That the threat and use of nuclear weapons must in any circumstance comply with the requirements of humanitarian law, which makes their legal use as weapons of mass destruction an impossibility..

    2. That the threat and use of nuclear weapons is and remains generally illegal under international law and that the so-called exception for an extreme circumstance in which the survival of a state is at stake is no exception at all, but merely a non liquet, a decision not to decide.

    3. That, in any case, the declared policy of the nuclear weapon states does not limit their use to such an extreme circumstance and is therefore inherently illegal.

  3. The decision illustrates the limits of legal action in resistance to state crimes, but in no way diminishes the need for such resistance. On the contrary, the fact that courts are reluctant to do their duty in holding no one above the law should encourage civil society to redouble its efforts to hold policy makers, even those who consider “national security” a shield from prosecution, accept the restraints placed upon them by legal and moral principles.

We are, indeed, in a time of titanic tension between practice and principle and the course of history is moving, slowly but surely, in the direction of principle. Great strides are being made in the area of human rights: Witness the progress toward an international criminal court and the cases brought in the last two years against three former Presidents, Hissene Sabre of Chad, Milosevic of Yugoslavia and Pinochet of Chile. The fact that only one of these, the case against Milosevic, is going forward, is less important than the fact that indictments against them were returned for crimes against humanity.

There is much work for lawyers to be done. I hope many of you, in your varied careers, will play a part in doing it.

Peter Weiss
President, IALANA
Tokyo, July 31, 2001

 

 

1 The Opinion, some of the judges’ separate statements and a record of the written and oral proceedings can be seen at the Court’s website, www.icj-cji.org
2 The full text of the decision, as well as a number of comments, including one by this author, can be seen at the Trident Ploughshares website, www.gn.apc.org. Trident Ploughshares is the organization which carries on the civil resistance campaign against Trident.
3 Par. 56
4 Par. 33
5 Par. 111
6 Par. 89
7 Par. 35
8 Par. 66
9 Par. 63
10 Par. 95
11 Par. 100
12 Par. 97

 

 

Decision of the ICJ on the legality of nuclear weapons

Decision of the International Court of Justice on the legality of nuclear weapons

The court undertook seven separate votes, all of which were passed:[13]

  • 1. The court decided to comply with the request for an advisory opinion;[6]
  • 2. The court replied that “There is in neither customary nor conventional international law any specific authorization of the threat or use of nuclear weapons”;[14]
  • 3. The court replied that “There is in neither customary nor conventional international law any comprehensive and universal prohibition of the threat or use of nuclear weapons as such”;[15]
  • 4. The court replied that “A threat or use of force by means of nuclear weapons that is contrary to Article 2, paragraph 4, of the United Nations Charter and that fails to meet all the requirements of Article 51, is unlawful”;[16]
  • 5. The court replied that “A threat or use of nuclear weapons should also be compatible with the requirements of the international law applicable in armed conflict, particularly those of the principles and rules of humanitarian law, as well as with specific obligations under treaties and other undertakings which expressly deal with nuclear weapons”[17]
  • 6. The court replied that “the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law; However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake”[18]
  • 7. The court replied that “There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control”.[19]

The court voted as follows:[20]

Judge UN State Vote 1 Vote 2 Vote 3 Vote 4 Vote 5 Vote 6 Vote 7
President Mohammed Bedjaoui  Algeria For For For For For For For
Vice-President Stephen M. Schwebel  United States For For For For For Against For
Judge Shigeru Oda  Japan Against For For For For Against For
Judge Gilbert Guillaume  France For For For For For Against For
Judge Mohammed Shahabuddeen  Guyana For For Against For For Against For
Judge Christopher Weeramantry  Sri Lanka For For Against For For Against For
Judge Raymond Ranjeva  Madagascar For For For For For For For
Judge Shi Jiuyong  China For For For For For For For
Judge Carl-August Fleischhauer  Germany For For For For For For For
Judge Abdul G. Koroma  Sierra Leone For For Against For For Against For
Judge Géza Herczegh  Hungary For For For For For For For
Judge Vladlen S. Vereschetin  Russia For For For For For For For
Judge Luigi Ferrari Bravo  Italy For For For For For For For
Judge Rosalyn Higgins  United Kingdom For For For For For Against For
Result (For-Against): 13-1 14-0 11-3 14-0 14-0 7-7[21] 14-0Split decision

The only significantly split decision was on the matter of whether “the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict”, not including “in an extreme circumstance of self-defence, in which the very survival of a State would be at stake”. However, three of the seven “dissenting” judges (namely, Judge Shahabuddeen of Guyana, Judge Weeramantry of Sri Lanka, and Judge Koroma of Sierra Leone) wrote separate opinions explaining that the reason they were dissenting was their view that there is no exception under any circumstances (including that of ensuring the survival of a State) to the general principle that use of nuclear weapons is illegal. A fourth dissenter, Judge Oda of Japan, dissented largely on the ground that the Court simply should not have taken the case.

Vice President Schwebel remarked in his dissenting opinion that

It cannot be accepted that the use of nuclear weapons on a scale which would – or could – result in the deaths of many millions in indiscriminate inferno and by far-reaching fallout, have pernicious effects in space and time, and render uninhabitable much or all of the earth, could be lawful.

And Higgins noted that she did not

exclude the possibility that such a weapon could be unlawful by reference to the humanitarian law, if its use could never comply with its requirements.[22]

Nevertheless, the Court’s opinion did not conclude definitively and categorically, under the existing state of international law at the time, whether in an extreme circumstance of self-defence in which the very survival of a State would be a stake, the threat or use of nuclear weapons would necessarily be unlawful in all possible cases. However, the court’s opinion unanimously clarified that the world’s states have a binding duty to negotiate in good faith, and to accomplish, nuclear disarmament.

[Note by the Webmaster:  The results of the vote on item 6 is misleading.   Two of the judges, Judge Shahabuddeen and Judge Koroma, agreed in fact that “the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law.”  They voted against this item for totally different reasons that the other negative votes, because they did not accept the proposition in phrase 2 that the use of nuclear weapons could be justified in some circumstances.  The Court did not either present any such plausible circumstances.  Accordingly, the majority of judges (9:5), in fact, agreed that “”the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law” and only disagreed whether there existed extreme circumstances in which the threat or use of nuclear weapons could be conceivably legal.  As no nuclear state currently can truthfully claim to be subject to an extreme danger, in which the very survival of a State is at stake, the possession  and deployment by nuclear states of such weapons, which is a permanent threat against its neighbors, must be considered as illegal by a majority of the Court.]