The Legal Case for
Nuclear Weapons Abolition
by David Krieger*, July 1998
The legal case for abolishing nuclear weapons is
only one of many that can and should be made. Nuclear weapons
place the future of humanity, indeed of all life, in jeopardy.
They are not even weapons in any traditional sense. They kill
indiscriminately. They cause unnecessary suffering that affects
present and future generations. They have no legitimate use in
warfare. They are instruments of genocide that no sane person
or society would contemplate using.
The questions that I will address are these: Is
the threat or use of nuclear weapons illegal under international
law? Is the United States under a legal obligation to eliminate
its nuclear arsenal? The answer to both questions is Yes, and
it seems to me remarkable that the U.S. media has been nearly
silent with regard to these issues.
A small breakthrough in this area occurred in June
1998 when Max Frankel, the distinguished columnist and former
editor of the New York Times, wrote in the New York Times Magazine:
"If I and other observers had resisted the nuclear club's
double standard and exposed its hollow assumptions about human
nature, the world might by now have devised more effective international
controls over atomic weapons. The have-nots might have been appeased
if they had been given a major voice in a strong international
inspection agency and the right to pry even into the monopolists'
stockpiles -- including ours. Instead we have wasted the half
century since Hiroshima and provoked a chain reaction that is
Let me offer a syllogism, an expression of logic:
All states are subject to international law. The United States
is a state. Therefore, the United States is subject to international
Unfortunately, not everyone agrees with the logic
that our country is subject to international law. Senator Alfonse
D'Amato, for example, was recently quoted in the Los Angeles Times
as stating, "To hell with international law....You've got
a choice to make. You're either with us or against us, and I only
hope for your sake you make the right choice."
One choice is the rule of law. The other is the
rule of force. I would argue that the right choice is international
law. It is in the interests of our country and all countries to
abide by the rule of law. Either way, we can be assured that other
countries will follow our lead.
International law is made in two ways -- by treaties,
which require the agreement of nations, and by such widespread
agreement on issues of law that the law is accepted as customary
international law. Both means carry the force of law in the international
The treaty which is most relevant to the abolition
of nuclear weapons is the Nuclear Non-Proliferation Treaty (NPT),
which was opened for signatures in 1968 and entered into force
in 1970. This treaty seeks to prevent the proliferation of nuclear
weapons to states which did not possess them prior to January
1, 1967. The five permanent members of the United Nations Security
Council (U.S., Russia, UK, France and China) are the states recognized
in the NPT as possessing nuclear weapons prior to this date.
In return for the non-nuclear weapons states promising
not to acquire nuclear weapons, the five nuclear weapons states
promised in Article VI of the NPT to pursue good faith negotiations
for a cessation of the nuclear arms race at an early date and
for nuclear disarmament.
When the NPT was extended indefinitely in 1995,
the nuclear weapons states promised the "determined pursuit...of
systematic and progressive efforts" to achieve nuclear disarmament.
For most states in the world, as reflected in their votes in the
UN General Assembly, the efforts of the nuclear weapons states
in this regard have been far from satisfactory.
The customary international law most relevant to
the legality of the threat or use of nuclear weapons is international
humanitarian law. This is part of the law of armed conflict, and
was developed to set limits on the use of force in armed conflict
for humanitarian purposes. The basic premise is that the means
of injuring the enemy are not unlimited. Put another way, all
is not fair (or legal) in warfare.
Under international law, a state cannot use weapons
that fail to discriminate between civilians and combatants. Nor
can a state use weapons that cause unnecessary suffering to combatants
such as dum-dum bullets.
In December 1994 the United Nations General Assembly
asked the International Court of Justice, the highest judicial
body in the world on matters of international law, for an advisory
opinion on the legality of the threat or use of nuclear weapons.
The exact question asked was: "Is the threat or use of nuclear
weapons in any circumstance permitted under international law?"
The United States, joined by the UK, France, and
Russia, argued to the Court that it should not hear the case because
this was a political rather than legal issue. The Court, turning
aside these arguments, issued its historic opinion on July 8,
1996. It was an opinion of great significance for humanity, but
to date it has been largely ignored by the U.S. and its NATO allies.
It has also been largely ignored by the U.S. media.
The Court began by unanimously finding that international
law does not provide specific authorization of the threat or use
of nuclear weapons. On the other hand, the Court found that international
law did not contain "any comprehensive and universal prohibition
of the threat or use of nuclear weapons as such." Three of
the 14 judges -- Judge Koroma of Sierra Leone, Judge Shahabuddeen
of Guyana, and Judge Weeramantry of Sri Lanka -- voted against
this position, and issued powerful dissenting opinions.
The Court then went on to state unanimously that
any threat or use of nuclear weapons for purposes other than self-defense,
in accord with articles 2(4) and 51 of the United Nations Charter,
was prohibited. It followed this statement with the unanimous
conclusion that a threat or use of nuclear weapons must also meet
the requirements of the principles and rules of international
Earlier in its opinion, the Court had referred
to "cardinal principles" of humanitarian law as follows:
"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 also made clear that if a use would be unlawful, the threat
of such use would also be unlawful.
Based upon its findings with regard to the application
of international law to nuclear weapons, the Court reached an
unusual two-paragraph conclusion that began, "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."
The Court continued with a second paragraph stating
that the current state of international law and the elements of
fact at its disposal did not allow the Court to "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 indetermination by the Court when "the very survival
of a state would be at stake," must be read in connection
with the absolute prohibition of violating international humanitarian
law. Thus, even in an extreme circumstance of self-defense, it
would be necessary to avoid injuring a civilian population and
causing unnecessary suffering to combatants. This would not be
possible by means of using nuclear weapons for retaliation against
a civilian population.
The vote on this two-paragraph conclusion was 7
to 7, with the President of the Court casting the deciding vote,
according to the rules of the Court. However, when you analyze
who voted against the conclusion you find that the three judges
from Western nuclear weapons states were joined by the three judges
who found an absolute prohibition on nuclear weapons. The Japanese
judge also voted against this conclusion because he opposed the
issue coming before the Court. Thus, a better reading of this
vote would have ten supporting the conclusion or going further
and arguing for an absolute prohibition, and only the judges from
the U.S., UK and France opposing it because they found that the
threat or use of nuclear weapons would not be "generally"
The Court went on to state 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." In 1996
and 1997 the United Nations General Assembly passed resolutions
urging the nuclear weapons states to fulfill this obligation.
In issuing the Court's opinion, Judge Bedjaoui,
the then president of the Court, referred to nuclear weapons as
"the ultimate evil" and declared, "Nuclear weapons
can be expected -- in the present state of scientific development
at least -- to cause indiscriminate victims among combatants and
non-combatants alike, as well as unnecessary suffering among both
categories. The very nature of this blind weapon therefore has
a destabilizing effect on humanitarian law which regulates discernment
in the type of weapon used."
Judge Bedjaoui also argued that it would be "quite
foolhardy...to set the survival of a State above all other considerations,
in particular above the survival of mankind itself."
I will conclude with a few observations.
First, the threat or use of nuclear weapons is
illegal in any conceivable circumstance. Therefore, current U.S.
and NATO policies relying upon nuclear weapons are illegal under
Second, the U.S. has not been fulfilling its obligation
under international law to negotiate the complete elimination
of nuclear weapons under strict and effective international control.
Third, the likely outcome of this failure of leadership
by the U.S. is the breakdown of the Non-Proliferation Treaty at
its year 2000 Review Conference. The nuclear testing by India
and Pakistan can be linked to India's strong opposition to what
it has termed "nuclear apartheid," that is the continued
reliance on nuclear weapons by a small group of states that have
failed to fulfill their obligations under international law.
Fourth, the U.S. media has not played a constructive
role in analyzing this situation, and reporting on it to the American
Fifth, current U.S. policies make the American
people and the U.S. media unwitting accomplices in policies that
threaten the mass murder of hundreds of millions of innocent people.
If these weapons are used ever again, by accident or design, history
-- if there is a history -- will judge the American people harshly
for not demanding the abolition of these weapons when the opportunity
to do so presented itself with the end of the Cold War.
At the outset, I said that the legal case for abolishing
nuclear weapons is only one of many that can be made. The legal
case is important, but the most important case that can be made
is the moral case. To abolish nuclear weapons is to uphold the
sanctity of life. I will conclude by quoting Lee Butler, a former
commander of the U.S. Strategic Command and an eloquent spokesman
for abolishing these weapons. General Butler stated: "We
cannot at once keep sacred the miracle of existence and hold sacrosanct
the capacity to destroy it. It is time to reassert the primacy
of individual conscience, the voice of reason and the rightful
interests of humanity." This cannot be done without the active
participation of the media in analyzing and communicating the
case for nuclear weapons abolition to the American people.
*David Krieger is the
president of the Nuclear Age Peace Foundation. He can be reached
at 1187 Coast Village Road, Suite 123, Santa Barbara, CA 93108-2794,