The Criminality of Nuclear Deterrence, by Francis A. Boyle, November 14, 1997

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The Criminality of Nuclear Deterrence
by Francis A. Boyle*, November 14, 1997

Part II of II

Chapter I
PURPOSES AND PRINCIPLES
Article I

The Purposes of the United Nations are:

1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;

2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;

3. To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and

4. To be a centre for harmonizing the actions of nations in the attainment of these common ends.

Certainly, all of these Purposes of the United Nations would be defeated and set at naught in the event that nuclear weapons were actually used.

In the above-quoted Paragraph 48 of the Advisory Opinion the Court appears to condemn nuclear deterrence once again in no uncertain terms, and to include within this rubric the possession of nuclear weapons with the intention and imminent capability to use them. Hence, such possession of nuclear weapons is clearly illegal and, I might add, criminal as well. This conclusion by the World Court as to the illegality of the possession of nuclear weapons goes far beyond anything argued in most of the scholarly literature produced on this subject during the past two decades. For this reason, Paragraph 48 stands as a resounding vindication to that handful of courageous scholars who have taken the position that the possession of nuclear weapons is illegal despite enduring the guffaws and ridicule of their so-called colleagues.

Nuclear Weapons and the Laws of War

In regard to the defense of anti-nuclear resisters, the next critical passage of the World Court's Advisory Opinion becomes Paragraph 77:

77. All this shows that the conduct of military operations is governed by a body of legal prescriptions. This is so because "the right of belligerents to adopt means of injuring the enemy is not unlimited" as stated in Article 22 of the 1907 Hague Regulations relating to the laws and customs of war on land. The St. Petersburg Declaration had already condemned the use of weapons "which uselessly aggravate the suffering of disabled men or make their death inevitable". The aforementioned Regulations relating to the laws and customs of war on land, annexed to the Hague Convention IV of 1907, prohibit the use of "arms, projectiles, or material calculated to cause unnecessary suffering" (Art. 23).

It is clear, therefore, that the laws of war likewise apply to the threat and use of nuclear weapons.

Nuclear weapons are "unlimited" in their effects. Nuclear weapons also uselessly aggravate the suffering of disabled men and women and make their deaths inevitable. Nuclear weapons also cause unnecessary suffering.

Hence, t. The United States government is a contracting party to Hague Convention No. IV of 1907 and its annexed Regulations, which constitute a "treaty" and thus the "supreme Law of the Land" under Article VI of the United States Constitution. Therefore, current U.S. nuclear deterrence policies stand in anticipatory breach of Hague Convention No. IV and are therefore illegal and criminal.

Nuclear Deterrence and International Humanitarian Law

Paragraph 78 of the Advisory Opinion is directly on point with respect to maintaining the illegality of the threat and use of nuclear weapons, including therein nuclear deterrence:

78. The cardinal principles contained in the texts constituting the fabric of humanitarian law are the following. The first is aimed at the protection of the civilian population and civilian objects and establishes the distinction between combatants and non-combatants; States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets. According to the second principle, it is prohibited to cause unnecessary suffering to combatants: it is accordingly prohibited to use weapons causing them such harm or uselessly aggravating their suffering. In application of that second principle, States do not have unlimited freedom of choice of means in the weapons they use.

The Court would likewise refer, in relation to these principles, to the Martens Clause, which was first included in the Hague Convention II with Respect to the Laws and Customs of War on Land of 1899 and which has proved to be an effective means of addressing the rapid evolution of military technology. A modern version of that clause is to be found in Article 1, paragraph 2, of Additional Protocol I of 1977, which reads as follows:

"In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience."

In conformity with the aforementioned principles, humanitarian law, at a very early stage, prohibited certain types of weapons either because of their indiscriminate effect on combatants and civilians or because of the unnecessary suffering caused to combatants, that is to say, a harm greater than that unavoidable to achieve legitimate military objectives. If an envisaged use of weapons would not meet the requirements of humanitarian law, a threat to engage in such use would also be contrary to that law.

The World Court clearly said: "States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets." Yet, to the contrary, U.S. strategic nuclear weapons systems do indeed make civilians the direct object of attack, and because of their incredible explosive power are also incapable of distinguishing between civilians and military targets.

The Court then goes on to say: "According to the second principle, it is prohibited to cause unnecessary suffering to combatants." But clearly the use of nuclear weapons would cause unnecessary suffering to both combatants and to civilians, the latter of whom remain absolutely protected at all times. The well-documented human suffering in the aftermath of the atomic bombings of Hiroshima and Nagasaki provides conclusive evidence of the validity of this proposition.

The Court concludes Paragraph 78 by stating: "If an envisaged use of weapons would not meet the requirements of humanitarian law, a threat to engage in such use would also be contrary to that law." In other words, nuclear deterrence itself is illegal. For example, a nuclear weapons state such as the United States cannot lawfully threaten mass extermination when mass extermination itself would be clearly illegal and criminal. Here once again, the World Court implicitly condemns the whole doctrine of nuclear deterrence as being illegal and, I might add, criminal.

Referring explicitly to the Hague Conventions and the Geneva Conventions in Paragraph 79 of the Advisory Opinion, the World Court held as follows: "Further these fundamental rules are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law." Of course, the United States government has ratified Hague Convention No. IV of 1907 and the Four Geneva Conventions of 1949 and so is bound to observe them a fortiori.

Nuclear Weapons and Nuremberg Accountability

In this regard, it is also significant that in Paragraph 80 of the Advisory Opinion, the World Court invokes and affirms the authority of the 1945 Nuremberg Judgment during the course of analyzing the legality of the threat and use of nuclear weapons under international humanitarian law. Furthermore, in Paragraph 81 of the Advisory Opinion, the World Court repeats with implicit approval the official assertion by the United Nations Secretary General that the Nuremberg Charter of 8 August 1945, inter alia, represents "'...part of conventional international humanitarian law which has beyond doubt become part of international customary law...'" Thus, in Paragraphs 80 and 81 of the Advisory Opinion, the World Court deliberately and directly raises the specter of personal criminal responsibility under the Nuremberg Charter, the Nuremberg Judgment, and I might add the Nuremberg Principles, for government decision-makers bearing command responsibility, aiding and abetting, or otherwise complicit in their country's plans for the threat and use of nuclear weapons. Since I have already discussed these matters at great length elsewhere, I will not bother to repeat any of that analysis here.

Nuclear Weapons and International Humanitarian Law

The Court then turns directly to the question of the applicability of international humanitarian law to the threat and use of nuclear weapons and concludes in Paragraphs 85, 86 and 87 that the aforementioned principles of international humanitarian law apply to nuclear weapons just as they apply to any other weapon of warfare:

85. ...In the view of the vast majority of States as well as writers there can be no doubt as to the applicability of humanitarian law to nuclear weapons.

86. The Court shares that view. ... In this respect it seems significant that the thesis that the rules of humanitarian law do not apply to the new weaponry, because of the newness of the latter, has not been advocated in the present proceedings. On the contrary, the newness of nuclear weapons has been expressly rejected as an argument against the application to them of international humanitarian law:

....

None of the statements made before the Court in any way advocated a freedom to use nuclear weapons without regard to humanitarian constraints. Quite the reverse; it has been explicitly stated,

"Restrictions set by the rules applicable to armed conflicts in respect of means and methods of warfare definitely also extend to nuclear weapons" (Russian Federation, CR 95/29, p. 52);

"So far as the customary law of war is concerned, the United Kingdom has always accepted that the use of nuclear weapons is subject to the general principles of the jus in bello" (United Kingdom, CR 95/34, p. 45); and

"The United States has long shared the view that the law of armed conflict governs the use of nuclear weapons -- just as it governs the use of conventional weapons" (United States of America, CR 95/34, p. 85.)

87. Finally, the Court points to the Martens Clause, whose continuing existence and applicability is not to be doubted, as an affirmation that the principles and rules of humanitarian law apply to nuclear weapons.

Thus, consistent with its longstanding position going back to the U.S. Army Field Manual 27-10 of 1956, the United States government expressly conceded before the World Court that international humanitarian law applies to the use of nuclear weapons. But as the World Court has consistently pointed out so far in this Advisory Opinion, it would be difficult to imagine any circumstances in which the threat and use of nuclear weapons would not violate international humanitarian law. Once again, the conclusion becomes inexorable that the threat and use of nuclear weapons, including therein nuclear deterrence, is illegal and, I might add, criminal.

Violation of the International Laws of Neutrality

The World Court then turned to the question of whether or not the threat and use of nuclear weapons violate the international laws of neutrality. Generally put, the essence of the international laws of neutrality can be found in Hague Convention No. V Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land of 1907, and Hague Convention No. XIII Respecting the Rights and Duties of Neutral Powers in Naval War of 1907. The United States government is a contracting party to both Hague Neutrality Conventions. In addition, both of the Hague Neutrality Conventions of 1907 constitute customary international law on the rules of neutrality in wartime.

No point would be served by reviewing the contents of these two treaties in detail. Suffice it to say here that their basic requirement is that belligerents are bound to respect the territory and the sovereign rights of neutral states during wartime. As Article 1 of Hague Convention No. V. Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land of 1907 put it: "The territory of neutral Powers is inviolable." In Paragraph 89 of the Advisory Opinion, the World Court found that these principles of neutrality apply "...to all international armed conflict, whatever type of weapons might be used." In other words, states must respect the international laws of neutrality and the territory and the sovereign rights of neutral states when it comes to the threat and use of nuclear weapons.

But this simply cannot be done given the devastating effects of nuclear weapons upon the surrounding environment irrespective of national borders; given the transnational effects of nuclear fallout; and given the transgenerational effects of nuclear radiation. In any event, it is certainly clear that the nuclear weapons states have paid absolutely no attention whatsoever to the customary or conventional international laws of neutrality when it comes to formulating their currently existing plans for the threat and use of nuclear weapons, including therein nuclear deterrence. In other words, the nuclear weapons states are currently threatening to violate the international laws of neutrality and thus stand in anticipatory breach of these two Hague Neutrality Conventions and the customary international laws of neutrality. Once again, this is certainly the type of ongoing inchoate criminal activity that anti-nuclear resisters have the right to oppose by necessary and proportionate means.

Furthermore, many states such as the United States have enacted domestic implementing legislation that is purposefully designed to incorporate into their municipal legal systems the customary and conventional international laws of neutrality on pain of criminal penalty for their violation. Once again, anti-nuclear resisters have the right to oppose such ongoing inchoate criminal activities by their own government officials acting in gross violation of customary international law, international treaties, and domestic statutes that were expressly intended to criminalize such behavior. Papers to that effect have already been drawn up by my friend, former client, Plowshares resister, convicted felon, fellow graduate of the Harvard Law School, fellow attorney, and co-counsel Katya Komisaruk, Esquire, of Oakland, California--a real American Hero!

Conclusion on International Humanitarian Law and Nuclear Weapons

In Paragraph 91 of the Advisory Opinion, the World Court referred to, but refused to endorse, the legality of even "...the use of a low yield nuclear weapon against warships on the High Seas or troops in sparsely populated areas..." as advocated by the United Kingdom and the United States during the course of these proceedings. And in Paragraph 94 of the Opinion, the World Court even goes so far as to expressly refuse to endorse "...the legality of the use of nuclear weapons under certain circumstances, including the 'clean' use of smaller, low yield, tactical nuclear weapons..." Here the Court's analysis implies that even such "limited" uses of tactical nuclear weapons would have to comply with international humanitarian law and the international laws of neutrality, assuming that could be done. Even then, the legality vel non of the tactical use of low yield nuclear weapons would also depend upon "...whether such limited use would not tend to escalate into the all-out use of high yield nuclear weapons." (Advisory Opinion, Paragraph 94.) Once again, it is difficult to imagine any such circumstances.

The Court utters its final condemnation of nuclear weapons in Paragraph 95 of the Opinion as follows:

...Thus, methods and means of warfare, which would preclude any distinction between civilian and military targets, or which would result in unnecessary suffering to combatants, are prohibited. In view of the unique characteristics of nuclear weapons, to which the Court has referred above, the use of such weapons in fact seem scarcely reconcilable with respect for such requirements. ...

So once again the World Court expressly recognizes the proposition that it is difficult to imagine any circumstances where the threat and use of nuclear weapons would be lawful.

The World Court's Non-Pronouncement in Paragraph 97

Originally, the General Assembly had asked the World Court to answer the following question: "Is the threat or use of nuclear weapons in any circumstances permitted under international law?" The World Court finally got around to answering this precise question in Paragraph 95 of the Advisory Opinion by employing the following language:

...Nevertheless, the Court considers that it does 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 armed conflict in any circumstance.

For obvious reasons, the World Court could not possibly have envisioned and considered all the circumstances in which nuclear weapons might conceivably be used. Consequently, the Court observed in Paragraph 97 of the Advisory Opinion that "...it cannot reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of self-defence, in which its very survival would be at stake." This is because of the factual uncertainties surrounding this hypothetical conjecture that had been mentioned in Paragraph 95 of the Advisory Opinion as quoted above.

I will discuss the Court's non-pronouncement mentioned in Paragraph 97 of the Advisory Opinion in more detail below when analyzing the Opinion's dispositif. Suffice it to say here that in this entire Advisory Opinion, the World Court did not tolerate, or approve, or sanction, or condone any threat or use of nuclear weapons for any reason. The Court simply refused to express "...a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of self-defense, in which its very survival would be at stake..." because of the factual uncertainties surrounding this purely hypothetical conjecture. Like any other court in the world today, the World Court operates on two basic principles, inter alia: Never say never! And: It all depends upon the facts!

Nuclear Disarmament

In Paragraph 99 of the Advisory Opinion, the Court quotes Article VI of the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT) as follows:

"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."

The Court interpreted NPT Article VI to contain a twofold obligation (1) to pursue and (2) to conclude negotiations for nuclear disarmament in good faith as follows:

....

The legal import of that obligation goes beyond that of a mere obligation of conduct; the obligation involved here is an obligation to achieve a precise result -- nuclear disarmament in all its aspects -- by adopting a particular course of conduct, namely, the pursuit of negotiations on the matter in good faith.

See Advisory Opinion, para. 99.

And in Paragraph 100 of the Advisory Opinion, the Court clearly states that: "This twofold obligation to pursue and to conclude negotiations formally concerns the 182 States parties to the Treaty on the Non-Proliferation of Nuclear Weapons, or, in other words, the vast majority of the international community."

Since 1968 it cannot be said that the world's nuclear weapons states have ever pursued negotiations on nuclear disarmament in good faith. Indeed, since 1968, except perhaps for the 1986 Gorbachev proposals, not one of the nuclear weapons states has ever given any serious consideration to their solemn legal obligation of nuclear disarmament, let alone general and complete disarmament, as required and called for by NPT Article VI. Hence, all of the nuclear weapons states currently stand in material breach of these twin obligations under NPT Article VI and customary international law as authoritatively determined by the World Court itself in Paragraph 99 of its Advisory Opinion.

The Dispositif

The Court then issued its formal rulings in Paragraph 105 of the Advisory Opinion, the so-called "dispositif." I will not bother to repeat or analyze all of its elements here. But for the purposes of defending anti-nuclear resisters the critical provisions of the dispositif will be discussed below. For the sake of convenience I will first examine these "unanimous" rulings adopted by the International Court of Justice in the dispositif of this Advisory Opinion.

Unanimous Ruling on the U.N. Charter

In Paragraph 105(2)(C) of the Opinion the Court ruled unanimously 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;"

In his Dissenting Opinion at page 3, Judge Weeramantry interpreted Paragraph 105(2)(C) of the Advisory Opinion as follows:

(iv) Paragraph 2(C) - (Unanimous)

The positive features of this paragraph have already been noted. The Court, in this paragraph, has unanimously endorsed Charter-based pre-conditions to the legality of nuclear weapons, which are diametrically opposed to the results of the use of the weapon. I thus read paragraph 1(C) [sic: must read "2(C)" because there is no 1(C)] of the dispositif as rendering the use of the nuclear weapon illegal without regard [sic: add "to"] the circumstances in which the weapon is used - whether in aggression or in self defence, whether internationally or internally, whether by individual decision or in concert with other nations. A unanimous endorsement of this principle by all the judges of this Court takes the principle of illegality of use of nuclear weapons a long way forward from the stage when there was no prior judicial consideration of legality of nuclear weapons by any international tribunal.

Those contending that the use of nuclear weapons was within the law argued strongly that what is not expressly prohibited to a state is permitted. On this basis, the use of the nuclear weapon was said to be a matter on which the state's freedom was not limited. I see the limitations laid down in paragraph 1(C) [sic: must read "2(C)" because there is no 1(C)] as laying that argument to rest.

In this passage, Judge Weeramantry has provided us with an authoritative interpretation of Paragraph 105(2)(C) not only because he is a sitting Judge of the World Court but also because he is one of the world's leading experts on nuclear weapons and international law.

The import of this unanimous ruling by the World Court in Paragraph 105(2)(C) of the Advisory Opinion should be crystal clear by now. It is almost impossible to imagine any threat or use of nuclear weapons that would be compatible with Article 2(4) of the United Nations Charter and that meets all the requirements of Article 51, especially the principles of necessity and proportionality. Indeed, in their current plans for the threat and use of nuclear weapons, including therein nuclear deterrence, the world's nuclear weapons states have paid absolutely no meaningful attention whatsoever to the requirements of Article 2(4) and Article 51 of the U.N. Charter, and especially the principles of necessity and proportionality. Hence, all of the current plans for the threat and use of nuclear weapons by the world's nuclear weapons states, including therein nuclear deterrence, are "unlawful" and, I might add, criminal.

Unanimous Ruling on International Humanitarian Law

In Paragraph 105(2)(D) of the Opinion's dispositif, the World Court ruled unanimously 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 international humanitarian law, as well as with specific obligations under treaties and other undertakings which expressly deal with nuclear weapons;"

In his Dissenting Opinion at page 3, Judge Weeramantry interpreted Paragraph 105(2)(D) of the Advisory Opinion as follows: (v) Paragraph 2(D) - (Unanimous)

This paragraph, also unanimously endorsed by the Court, lays down the further limitation of compatibility with the requirements of international law applicable in armed conflict, and particularly with the rules of international humanitarian law and specific treaty obligations.

There is a large array of prohibitions laid down here.

My Opinion will show what these rules and principles are, and how it is impossible, in the light of the nature and effects of nuclear weapons, for these to be satisfied.

If the weapon is demonstrably contrary to these principles, it is unlawful in accordance with this paragraph of the Court's Opinion.

Once again, in this passage Judge Weeramantry has provided us with an authoritative interpretation of Paragraph 105(2)(D) not only because he is a sitting Judge of the World Court, but also because he is one of the world's leading experts on nuclear weapons and international law.

The import of this unanimous ruling by the World Court in Paragraph 105(2)(D) of the Advisory Opinion should also be crystal clear by now. It is almost impossible to imagine any threat or use of nuclear weapons that would not grossly violate the principles and rules of international humanitarian law, whether customary or conventional. Indeed, in their current plans for the threat and use of nuclear weapons, including therein nuclear deterrence, the nuclear weapons states have paid absolutely no meaningful attention whatsoever to the requirements of international humanitarian law, whether customary or conventional. Hence, all of the current plans for the threat and use of nuclear weapons by the world's nuclear weapons states, including therein nuclear deterrence, are illegal and, I might add, criminal.

Unanimous Ruling on Nuclear Disarmament

Finally, in Paragraph 105(2)(F) of the Opinion's dispositif, the World Court ruled 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." Quite obviously, since 1968 not one of the nuclear weapons states has discharged these twin obligations of both customary and conventional international law. Consequently, all of the world's nuclear weapons states currently stand in material breach of NPT Article VI as well as these identical twin obligations under customary international law.

The Court's Ruling on the Threat and Use of Nuclear Weapons

The World Court then ruled on the legality of the threat or use of nuclear weapons in Paragraph 105(2)(E) of the Advisory Opinion's dispositif as follows:

E. By seven votes to seven, by the President's casting vote,

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;

IN FAVOUR: President Bedjaoui; Judges Ranjeva, Herczgh, Shi, Fleischhauer, Vereschetin, Ferrari Bravo;

AGAINST: Vice-President Schwebel; Judges Oda, Guillaume, Shahabuddeen, Weeramantry, Koroma, Higgins.

According to Article 55 of the ICJ Statute, in the event of a tie in the number of votes by the World Court Judges, it is for the President of the Court to cast the deciding vote. For this reason, President Bedjaoui's separate Declaration appended to the Opinion bears special importance for the interpretation of this component of the dispositif.

According to President Bedjaoui, Paragraph 105(2)(E) of the Advisory Opinion's dispositif must not "in any way be interpreted as leaving the way open to the recognition of the lawfulness of the threat or use of nuclear weapons." See Declaration of President Bedjaoui, at para. 11. In this regard, President Bedjaoui drew attention to the fact that in Paragraph 79 of the Advisory Opinion, the Court had already held that the fundamental rules of international humanitarian law (i.e., the Hague Conventions and the Geneva Conventions) "...constitute intransgressible principles of international customary law." In other words, since these principles are "intransgressible," to use the precise word of the Court, then they can never be violated, even in extreme circumstances, when the very survival of the state is at stake. See Declaration of President Bedjaoui, at para. 21.

The Importance of Paragraph 104

Likewise, in interpreting this element of the dispositif, it is crucial to recall to mind once again the text of Paragraph 104 of the Advisory Opinion, which immediately precedes the entirety of the dispositif found in Paragraph 105, as follows:

104. At the end of the present Opinion, the Court emphasizes that its reply to the question put to it by the General Assembly rests on the totality of the legal grounds set forth by the Court above (paragraphs 20 to 103), each of which is to be read in the light of the others. Some of these grounds are not such as to form the object of formal conclusions in the final paragraph of the Opinion; they nevertheless retain, in the view of the Court, all their importance.

In other words, the elements of the dispositif set forth in Paragraph 105(2)(E) must be read and interpreted by reference to Paragraphs 20 to 103 of the Advisory Opinion, which have already been extensively analyzed above.

Therefore, it would be an incorrect interpretation of the Advisory Opinion to focus simply upon Paragraph 105(2)(E) of the dispositif. Rather, by means of Paragraph 104 the Court makes it crystal clear that the dispositif, including Paragraph 105(2)(E), does not mean to take back or call into question any of its findings set forth in Paragraphs 20 to 103. Paragraphs 20 to 103 "retain, in the view of the Court, all their importance" despite the non-pronouncement found in Paragraph 105(2)(E) of the Advisory Opinion.

Interpreting Paragraph 105(2)(E)

In his Dissenting Opinion Judge Weeramantry criticized the entirety of Advisory Opinion Paragraph 105(2)(E) as follows:

(ii) Paragraph 2(E) - (7 votes to 7. Casting vote in favour by the President)

I am in fundamental disagreement with both sentences contained within this paragraph.

I strongly oppose the presence of the word "generally" in the first sentence. The word is too uncertain in content for use in an Advisory Opinion, and I cannot assent to a proposition which, even by remotest implication, leaves open any possibility that the use of nuclear weapons would not be contrary to law in any circumstances whatsoever. I regret the presence of this word in a sentence which otherwise states the law correctly. It would also appear that the word "generally" introduces an element of internal contradiction into the Court's Opinion, for in paragraphs 2(C) and 2(D) of the Court's Opinion, the Court concludes that nuclear weapons must be consistent with the United Nations Charter, the principles of international law, and the principles of humanitarian law, and, such consistency being impossible, the weapon becomes illegal.

The word "generally" admits of many meanings, ranging through various gradations, from "as a general rule; commonly", to "universally; with respect to all or nearly all". [Footnote omitted.] Even with the latter meaning, the word opens a window of permissibility, however narrow, which does not truly reflect the law. There should be no niche in the legal principle, within which a nation may seek refuge, constituting itself the sole judge in its own cause on so important a matter.

The main purpose of this Opinion is to show that, not generally but always, the threat or use of nuclear weapons would be contrary to the rules of international law and, in particular, to the principles and rules of humanitarian law. Paragraph 2(E) should have been in those terms, and the Opinion need have stated no more.

The second paragraph of 2(E) states that the current state of international law is such that the Court cannot conclude definitely whether the threat or use of the weapon would or would not be lawful in extreme circumstances of self defence. It seems self-evident to me that once nuclear weapons are resorted to, the laws of war (the ius in bello) take over, and that there are many principles of the laws of war, as recounted in this Opinion, which totally forbid the use of such a weapon. The existing law is sufficiently clear on this matter to have enabled the Court to make a definite pronouncement without leaving this vital question, as though sufficient principles are not already in existence to determine it. All the more should this uncertainty have been eliminated in view of the Court's very definite findings as set out earlier.

See Dissenting Opinion of Judge Weeramantry, at pp. 2-3. Once again, Judge Weeramantry's comments constitute an authoritative interpretation of Paragraph 105(2)(E) because he is a sitting Judge of the World Court and also because he is one of the world's leading experts on nuclear weapons and international law.

The First Paragraph of Paragraph 105(2)(E)

Quite obviously, there should not be any problem interpreting the meaning of the first paragraph of Paragraph 105(2)(E):

.... Notice that the World Court expressly found that both "the threat or use of nuclear weapons would generally be contrary to the rules of international law..." In other words, nuclear deterrence itself "would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law..." Here I might add that since nuclear deterrence violates the laws of war and international humanitarian law, nuclear deterrence is thus criminal.

Likewise, in this regard, Judge Shi Jiuyong (from China, a nuclear weapons state) points out in his Declaration that nuclear deterrence has "no legal significance." Similarly, on page 2 of his Declaration Judge Ferrari Bravo (from Italy, allied with three nuclear weapons states in the NATO Alliance) states that nuclear deterrence has no juridical value, and observes: "On pourrait arriver à dire que l'on est en présence d'un anti-droit, si on pense aux effets qu'elle a eus sur la Charte des Nations Unies." In other words, nuclear deterrence is "anti-law," that is the very negation of international law and especially of the United Nations Charter.

In a similar vein, Judge Fleischhauer (from Germany, allied with three nuclear weapons states in the NATO Alliance) states in Paragraph 2 of his Separate Opinion: "The nuclear weapon is, in many ways, the negation of the humanitarian considerations underlying the law applicable in armed conflict and the principle of neutrality."

President Bedjaoui made a similar observation in Paragraph 20 of his Declaration: "...Nuclear weapons, the ultimate evil, destabilize humanitarian law which is the law of the lesser evil. The existence of nuclear weapons is therefore a challenge to the very existence of humanitarian law. ...Nuclear war and humanitarian law seem by consequence to be two antitheses which exclude each other radically, the existence of the one necessarily supposes the inexistence of the other."

Simply put, nuclear weapons are to international law what the so-called Anti-Christ is to the Christian religion. Indeed, I personally know many devout Christians who sincerely believe that nuclear weapons are the Anti-Christ. Typically, anti-nuclear resisters oppose nuclear weapons because of a mixture of religious, moral, and legal considerations. Their admixture of motivations is given legal significance by the so-called Martens Clause as set forth, for example, in the Preamble to Hague Convention No. IV Respecting the Laws and Customs of War on Land of 18 October 1907, to which the United States government is a contracting party:

Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.

Certainly the dictate of the public conscience around the world is against the threat and use of nuclear weapons. As Judge Shahabuddeen put the matter on page 27 of his Dissenting Opinion:

In the result, on the basis of what the Court finds to be the state of the public conscience, it will be able to say whether the Martens Clause operates to prohibit the use of nuclear weapons in all circumstances. On the available material, it would be open to the Court to hold that the Clause operates to impose such a prohibition.

Interpreting The Second Paragraph of Paragraph 105(2)(E) of the Advisory Opinion

The real problem with Paragraph 105(2)(E) of the Advisory Opinion comes from the proper interpretation to be accorded its second paragraph:

....

At the very outset of his Dissenting Opinion Judge Koroma (of Sierre Leone) had the following observations to make about the second paragraph of Paragraph 105(2)(E):

It is a matter of profound regret to me that I have been compelled to append this Dissenting Opinion to the Advisory Opinion rendered by the Court, as I fundamentally disagree with its finding - secured by the President's casting vote - that:

"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".

This finding, in my considered opinion, is not only unsustainable on the basis of existing international law, but, as I shall demonstrate later, is totally at variance with the weight and abundance of material presented to the Court. The finding is all the more regrettable in view of the fact that the Court had itself reached a conclusion 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".

A finding with which I concur, save for the word "generally". It is my considered opinion based on the existing law and the available evidence that the use of nuclear weapons in any circumstance would be unlawful under international law. That use would at the very least result in the violation of the principles and rules of international humanitarian law, and would therefore be contrary to that law.

....

See Dissenting Opinion of Judge Koroma, at p. 1.

Likewise, in her Dissenting Opinion at Paragraph 29, Judge Higgins (from the United Kingdom, a nuclear weapons state) criticizes the second paragraph of Paragraph 105(2)(E) in the following language:

29. ...Through this formula of non-pronouncement the Court necessarily leaves open the possibility that a use of nuclear weapons contrary to humanitarian law might nonetheless be lawful. This goes beyond anything that was claimed by the nuclear weapon States appearing before the Court, who fully accepted that any lawful threat or use of nuclear weapons would have to comply with both the jus ad bellum and jus in bello (see para. 86).

Judge Higgins is certainly correct to point out that the nuclear weapons states are still bound to adhere to their position on this matter that they formally articulated during the course of the World Court proceedings. It has been the longstanding position of the nuclear weapons states that any threat or use of nuclear weapons must comply with both the United Nations Charter (the jus ad bellum, or right to go to war) as well as with the laws of war and international humanitarian law (that is, the jus in bello, or laws of war). The non-pronouncement found in the second paragraph of Paragraph 105(2)(E) of this Advisory Opinion did not and indeed could not alter the validity of those legal obligations which flow from both customary and conventional international law.

Likewise, in Paragraph 12 of her Dissenting Opinion Judge Higgins stated most emphatically: "...It is in any event absolutely prohibited to attack civilians, whether by nuclear or other weapons." Even when considering attacking legitimate military targets, a state must not attack "if the collateral civilian casualties would be disproportionate to the specific military gain from the attack." See Dissenting Opinion of Judge Higgins, at para. 20. Applying this principle of proportionality to nuclear weapons, Judge Higgins opines: "One is inevitably led to the question of whether, if a target is legitimate and the use of a nuclear weapon is the only way of destroying that target, any need can ever be so necessary as to occasion massive damage upon civilians." See id.

Finally, in Paragraph 23 of her Dissenting Opinion Judge Higgins enunciates a third principle of international humanitarian law with respect to the threat and use of nuclear weapons: "Very important also in the present context is the requirement of humanitarian law that weapons may not be used which are incapable of discriminating between civilian and military targets." Once again, it is extremely difficult to conceive of any circumstances surrounding the current plans for the threat and use of nuclear weapons by the world's nuclear weapons states that would not violate any one, or more, or all three of these fundamental principles of international humanitarian law that were articulated by Judge Higgins in her Dissenting Opinion.

The Dissenters to Paragraph 105(2)(E)

As can be seen from the above analysis, of the seven World Court Judges registering dissenting votes to Paragraph 105(2)(E) of the dispositif of the Advisory Opinion, Judge Weeramantry and Judge Koroma dissented because it did not, in their Opinions, go far enough to expressly condemn the threat and use of nuclear weapons in all circumstances. The same can be said for Judge Shahabuddeen in his Dissenting Opinion. The grounds for Judge Oda's Dissenting Opinion were that he did not believe the World Court should have responded to the General Assembly's Request for this Advisory Opinion in the first place.

Therefore, of the seven dissenters to Paragraph 105(2)(E), only Judge Schwebel (from the United States), Judge Higgins (from the United Kingdom) and Judge Guillaume (from France) had any substantive problem with its general condemnation of the threat and use of nuclear weapons. Notice that these three dissenters were all from the three nuclear weapons states that are allied with each other by means of the NATO Pact. Thus, it is not surprising that these three Judges voted on Paragraph 105(2)(E) in a manner consistent with the fact that their respective states of nationality possess nuclear weapons. In the practice of the International Court of Justice and its predecessor, the Permanent Court of International Justice, there has always been a high degree of correlation between a Judge's vote and the position advocated by his or her state of nationality before the World Court despite the vaunted independence of the World Court from outside political pressures. Nevertheless, by comparison, Judge Vereschetin from Russia and Judge Shi from China did not dissent from Paragraph 105(2)(E) despite the fact that their respective states of nationality were indeed nuclear weapons states.

In light of these three dissenting votes on Paragraph 105(2)(E) by Judges Schwebel, Higgins and Guillaime, let us assume an extreme case of legitimate self-defense under Article 51 of the United Nations Charter where a state's "very survival would be at stake." Even then, according to Paragraph 79 of the Opinion, the Hague Conventions and the Geneva Conventions "constitute intransgressible principles of international customary law." As pointed out by Judge Bedjaoui, then President of the World Court, in his appended Declaration, such intransgressible principles can never be violated, even in extreme circumstances, where the very survival of a state is at stake. It is difficult to imagine any circumstances where the actual use of nuclear weapons would not violate either the Hague Conventions or the Geneva Conventions. In other words, it is difficult to imagine any circumstances where the actual use of nuclear weapons would not violate "intransgressible principles of international customary law."

Furthermore, as already noted above, the United States government has ratified Hague Convention No. IV of 1907 and the Four Geneva Conventions of 1949 and so is bound to observe them a fortiori and without any exceptions whatsoever. The same is true for the other acknowledged nuclear weapons states: Britain, China, France and Russia. The non-pronouncement found in the World Court's Advisory Opinion cannot alter those undeniable facts and the legal conclusions that flow inevitably from them.

Conclusion

It is obvious from reading the World Court's Advisory Opinion that any currently contemplated threat or use of nuclear weapons by the United States government is illegal under international humanitarian law, and therefore I would add criminal. Hence all that needs to be done in order to defend an anti-nuclear resister is to apply the World Court's Advisory Opinion to the actual nuclear weapons system that was the object of the anti-nuclear resister's action. By applying the teachings of the World Court's Advisory Opinion to the actual facts of the case, it should become clear that the specific nuclear weapons system and its related strategy are illegal and criminal.

Hence, there is no need to deal with the question of the legality or illegality of nuclear weapons as an abstract proposition. Rather, simply apply the language of the Advisory Opinion, together with the analysis of the Opinion as set forth above, to the specific nuclear weapons system that was the object of the anti-nuclear resister's action: e.g., NAVSTAR/Trident 2/Delta 5. Once you demonstrate the mission and the capabilities of the specific nuclear weapons system, its illegality and criminality should become blatantly obvious to the jury.

Indeed, this contextual approach to the problem coincides quite nicely with the contextual argument twice made by the United States government in its Written Observations on the Request by the General Assembly for an Advisory Opinion that was submitted to the International Court of Justice during the course of the World Court proceedings:

...As in the case of other weapons, the legality of use depends on the conformity of the particular use with the rules applicable to such weapons. This would, in turn, depend on factors that can only be guessed at, including the characteristics of the particular weapon used and its effects, the military requirements for the destruction of the target in question, and the magnitude of the risk to civilians...

By following this contextual approach to the actual nuclear weapons system at issue, you are only taking seriously and applying the contextual approach recommended by the United States government itself to the International Court of Justice. Certainly a judge and a jury anywhere in the United States of America should have the exact same right and duty to take into consideration the entire context surrounding the threat and use of the particular nuclear weapons system that motivated any act of anti-nuclear resistance.

Basically, then, the defense strategy in all these anti-nuclear trials has been to shift the jury's focus of attention away from the act of anti-nuclear resistance over to the specific nuclear weapons system involved. In other words, put the nuclear weapons system on trial instead of the anti-nuclear resisters. The critical factor in all these cases has been to get both the legal evidence and the technical evidence about the specific nuclear weapons system involved to be considered by the jury. The precise tactics, theories and strategies whereby this has been done have never mattered so much as whether or not the jury heard this legal evidence and the technical evidence in the first place.

Optimally, the successful defense of an anti-nuclear resister requires testimony at trial and before the jury by two experts: one on international law, the other on the technical characteristics of the specific nuclear weapons system involved. Of course, if you only have one expert or the judge will permit only one expert witness to testify, then that expert will have to do double duty. In this case, it is probably better to have your international law expert bone up on the facts surrounding the specific nuclear weapons system. You can usually get your international law expert qualified as an expert on nuclear weapons policies as well. By comparison, you will not be able to get your technical expert qualified as an expert on international law. So when faced with a choice, use the international law expert.

Of course, the judge might decide to strip you of all your expert witnesses, both technical and legal. If the judge does this, there is a good chance that such a ruling will constitute reversible error on appeal. Nevertheless, even if you are stripped of all your experts at trial, you must not despair! There have been several instances of anti-nuclear resisters obtaining hung juries by means of their own testimony. I know of other cases where different types of protesters have been able to obtain outright acquittals by means of their own testimony alone.

In any event, prior to trial anti-nuclear resisters and their lawyers must spend a good deal of time preparing their testimony in chief. During the course of their direct testimony, anti-nuclear resisters must explain their basic understanding and knowledge of the technical characteristics of the specific nuclear weapons system that they acted against. In addition, they should also try to explain in their own words that at the time they undertook their act of anti-nuclear resistance, this specific nuclear weapons system stood in gross violation of the United Nations Charter; the Nuremberg Charter, the Nuremberg Judgment, and the Nuremberg Principles; the Genocide Convention and its Implementation Act; the Hague Regulations; the Geneva Conventions and Protocol I; the Hague Neutrality Conventions; U.S. Army Field Manual 27-10 (1956); the 1996 World Court Advisory Opinion; as well as basic principles of international humanitarian, the laws of war, and international environmental law. Their act of anti-nuclear resistance was intended and designed for the express purpose of terminating ongoing inchoate criminal activity under well recognized principles of international law that have been fully subscribed to by the United States government itself.

Once again, I cannot over-emphasize enough that when facing any serious criminal charges, an anti-nuclear resister is well advised to be represented by an attorney. Even with representation by counsel, it will be difficult enough as it is to set up the defense of an anti-nuclear resister using international law, let alone to pull it off successfully. Based upon my experience with doing anti-nuclear protest cases since 1982, anti-nuclear resisters do themselves no favor by foregoing the services of an attorney--with all due respect to them. In some cases, they might even hurt the anti-nuclear cause that they seek to promote by proceeding to trial without adequate counsel and representation by a lawyer.

Quite obviously, there is a lot more I could say about defending anti-nuclear resisters under international law. But for a variety of reasons, I believe I have said enough for the time being. Good luck to you!

F.A.B.

* Francis A. Boyle is Professor of International Law and Advisor to the Nuclear Age Peace Foundation.

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