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.

 

******************************************************************* 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