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 truly prolific."

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 law.

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 system.

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 humanitarian law.

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" illegal.

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 international law.

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 people.

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, (805) 965-3443.