The Illegality Of
NATO's Nuclear Weapons
World Court Project, UK May 1997
The following notes summarise what we in the World
Court Project (UK) believe are the strongest arguments flowing
from the Advisory Opinion of 8 July 1996 by the International
Court of Justice (ICJ), which can be used in exposing the illegality
of NATO's nuclear policy.
It is important to recognise that none of our arguments
will guarantee success in court. However, we are convinced that
what we have to say is plausible and carries conviction.
As a general point, it is important to emphasise
that the ICJ found threat and use to be indivisible. Whatever
is illegal about use is also illegal about threat. This relates
directly to nuclear deterrence.
NATO's First Use Option
NATO retains the option of using nuclear weapons
first. In paragraph 94 of the Opinion, the ICJ challenged the
nuclear States that they had neither specified any legal circumstance
for use, nor convinced it that "limited use would not tend
to escalate into the all-out use of high-yield nuclear weapons."
It is difficult, if not impossible, to imagine a situation in
which using nuclear weapons first would not have such a tendency.
This is especially applicable to the most likely
scenario for the threat or use of nuclear weapons by the NATO
nuclear States. The US, UK and France have plans to threaten to
use nuclear weapons against even non-nuclear "rogue"
States to counter the proliferation of weapons of mass destruction,
or to protect US/UK/French so-called "vital interests"
anywhere in the world. For such so-called sub-strategic use, some
of the missiles in the currently patrolling UK Trident submarine
are fitted with a single, variable lower-yield warhead - because
six 100 kiloton warheads on a missile are not a credible deterrent
threat to a "rogue" regime or terrorists.
These scenarios fall far short of those postulated
in the ICJ's only concession, that it could not "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."
We can therefore argue that NATO first use would be illegal, whatever
the yield of nuclear weapon used.
Complying with Humanitarian Law
The ICJ concluded that the threat or use of nuclear
weapons is generally illegal. Indeed, it found no circumstance
in which the threat or use of nuclear weapons would not violate
humanitarian law.
Even in extreme circumstances, the threat or use
of nuclear weapons must comply with international humanitarian
law (paragraph 105D). Thus any use must, for example, discriminate
between combatants and non-combatants, must not cause unnecessary
or superfluous suffering, and must respect neutral States.
The NATO nuclear States deploy some, at least,
of their nuclear warheads on behalf of the Alliance, and are willing
to use them in collective self-defence. Although some of these
warheads might be relatively small, the majority are far larger
in their yield than the Hiroshima bomb.
For example, most UK Trident warheads are 100 kilotons
- about 8 times larger than Hiroshima; moreover, most UK Trident
missiles have six warheads. Such enormous destructive power, combined
with the ability to cause untold human suffering and damage to
generations to come from radiation effects, makes them incapable
of complying with humanitarian law.
Francis Boyle, a US Professor of International
Law who has specialized in nuclear weapon issues, advises that
the best way to deal with this question is to apply the language
of the Opinion to the specific nuclear weapons system under legal
challenge.
The Nuremberg Connection
The ICJ's confirmation that the Nuremberg Charter,
as part of humanitarian law, applies to nuclear weapons has serious
implications for all involved in implementing NATO's nuclear policy.
For example, military professionals need to be seen to be acting
within the law if they are to be distinguished from hired killers
or terrorists.
Military professionals shunned chemical and biological
weapons before they were prohibited, because they were too indiscriminate
and repulsive. NATO's plans to use even low-yield nuclear weapons
are vulnerable to the ICJ's finding that the effects of nuclear
weapons are unique, and more severe, widespread and long-lasting
than those of chemical weapons. In so doing, the ICJ confirmed
that nuclear weapons are in the same stigmatised category of weapons
of mass destruction as chemical and biological weapons - only
in many respects far worse.
Unanimous Call for Nuclear Disarmament
The judges' unanimous call in paragraph 105F for
nuclear disarmament went further than Article VI of the NPT, by
stating that negotiations should be concluded irrespective of
any treaty on general and complete disarmament, behind which hitherto
the nuclear States have hidden.
This challenges the current perception among NATO
decision-makers that "nuclear might is right" and lawful,
and that NATO nuclear policy is sustainable.
Although NATO's nuclear plans are secret, its post-Cold
War posture shows that it has no intention of renouncing nuclear
weapons; it is determined to maintain a nuclear warfighting capability;
and it is prepared to threaten to use low-yield warheads first,
backed by massive nuclear strikes when its public stance is one
of last-resort, so-called "minimal deterrence" in self-defence.
NATO as a Nuclear Alliance
NATO is an alliance which relies on nuclear deterrence
doctrine. The NATO Nuclear Planning Group takes collective decisions.
Therefore NATO, as an institution as well as its individual members,
carries responsibility for its nuclear policy.
To date, there is no evidence that the NATO Nuclear
Planning Group has responded to the implications of the ICJ's
Opinion. The onus is now on NATO to demonstrate that its nuclear
plans would:
1) fit the criteria of extreme circumstance;
2) not violate the humanitarian laws of warfare.
Our foregoing assessment suggests that NATO should
urgently review its nuclear policy in order to comply with the
ICJ's opinion.
The Authority of the International Court of Justice
The UK government has consistently argued that
the Opinion is not binding and changes nothing. However, on 24
September 1996 in the UN, the UK Foreign Secretary pledged "both
moral and material support" to the ICJ, adding that "the
more we accept that international law must be the foundation of
international relations, the safer we shall all be."
The ICJ is the UN's Court. It can give Advisory
Opinions on any question at the request of a UN agency, such as
the General Assembly, in order to assist that agency in its duties.
These Opinions clarify international law with the highest possible
authority. An Advisory Opinion is only given after careful and
lengthy deliberation by 15 judges after full hearings involving
all interested States and UN agencies. In this case, 43 states
- a record number, including the USA, UK and France - filed written
submissions and 22 (again including the NATO nuclear States) made
oral statements.
The USA, UK and France have signed the Hague and
Geneva Conventions, and have affirmed the Nuremberg Principles.
They are therefore bound to abide by these. Thus, the ICJ's decision
that the threat or use of nuclear weapons would generally violate
the Law of War as codified in these conventions and principles
means that the NATO nuclear States are under an obligation to
respect this.
It is also worth pointing out that in December
1994, by a comfortable majority, the UN General Assembly (UNGA)
requested the Court to deliver its Advisory Opinion on the threat
or use of nuclear weapons. On 10 December 1996, an even larger
majority of the UNGA adopted Resolution 51/45M which "takes
note of" the Opinion and "expresses its appreciation
to the ICJ". The Resolution went on to call for "negotiations
in 1997 leading to the early conclusion of a Nuclear Weapons Convention".
Conclusion
By ignoring the ICJ's decision, NATO is defying
the most authoritative view of how international law applies to
nuclear weapons; it is opposing the overwhelming majority of world
opinion; and it is failing to heed what the UK Foreign Secretary
said in the UN on 24 September 1996. This sets an irresponsible
example, and augurs ill for the safety of the world.
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The World Court Project is an international citizens' network
which is working to publicise and have implemented the July 8
1996 Advisory Opinion of the International Court of Justice which
could find no lawful circumstance for the threat or use of nuclear
weapons.
The World Court Project is part of Abolition 2000,
a global network to eliminate nuclear weapons.
World Court Project UK
George Farebrother, UK Secretary
67, Summerheath Rd, Hailsham, Sussex BN27 3DR
Phone & Fax 01323 844 269, Email geowcpuk@gn.apc.org |
