| Putting Nuclear Weapons On Trial
November 1999 By Angie Zelter
"One wonders whether in the light of common sense, it can be doubted that to exterminate vast numbers of the enemy population, to poison their atmosphere, to induce in them cancers, keloids and leukemias, to cause congenital defects and mental retardation in large numbers of unborn children, to devastate their territory and render their food supply unfit for human consumption - whether such acts as these can conceivably be compatible with 'elementary considerations of humanity'. Unless one can in all conscience answer such questions in the affirmative, the argument is at an end as to whether nuclear weapons violate humanitarian law, and therefore violate international law." Quoted from the Dissenting Opinion of Judge Weeramantry, appended to the "Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons", International Court of Justice, p. 29, General List No. 95, July 8, 1996. Introduction On October 21, three women accused of damaging acoustic research equipment and computers associated with the deployment of British Trident nuclear submarines were acquitted on the direction of Sheriff Margaret Gimblett at Greenock, Scotland, after a four-week trial. In her ruling Sheriff Gimblett concluded that the women "were justified in thinking that the threat or use of Trident could be construed as a threat and as such is an infringement of customary international law ". She went on to say that "the three accused took the view that if it [Trident] was illegal, and given the horrendous nature of nuclear weapons, that they had an obligation in terms of international law, never mind morally to do the little they could to stop the deployment and use of nuclear weapons in a situation which could be construed as a threat." Sheriff Gimblett then directed the jury to acquit the women because, she said, "I have heard nothing which would make it seem to me that the accused acted withcriminal intent". This article outlines the legal arguments that formed the basis of the defence and argues that it is now time to hold Britain and the other NWS accountable for breaking these laws and undermining the international legal order. Although the focus is Britain's deployment of the Trident nuclear weapon system, most of the arguments are applicable to all countries that possess nuclear weapons. The article also describes the wider body of international law pertinent to this case. This is important because respect for international humanitarian law is paramount to the stability and peace of the global community. At the Nuremberg and Tokyo tribunals many people were condemned to death for breaking this body of law. This law is currently being applied in the ad hoc Tribunals for Rwanda and the former Yugoslavia. Britain has taken an active role in setting up and supporting these Tribunals and has agreed that the international legal principles contained in the Statutes of these Tribunals are part of customary international law. Britain has also consistently supported the definitions of international crimes contained in the 1998 Rome Statute of the International Criminal Court. However, if these same laws are applied impartially to Britain's present nuclear deterrence policy and to Britain's current deployment of 100 kiloton yield nuclear warheads, then it is evident that Britain is preparing to violate the cardinal principles of international humanitarian law and its leaders and policy makers may be legitimately suspected of committing war crimes and crimes against peace. It is the responsibility of the global community to enforce the law impartially and to apply it to all states regardless of their power and status. The time has come to take Britain to the International Court of Justice for breaking these laws and for undermining the international legal order. International Law and Nuclear Weapons The July 8 1996 Advisory Opinion of the International Court of Justice (ICJ), at para.751, outlines the sources of international law as they relate to nuclear weapons. It is clear that nuclear weapons would generally breach all of the following:
Serious violations of these treaties and declarations are defined as criminal acts under the Nuremberg Principles, 1946 in that Principle 6 defines crimes against the peace, war crimes and crimes against humanity. Specifically, Nuremberg Principle VI (a) defines Crimes against Peace as "Planning, preparation, initiation or waging of ... a war in violation of international treaties, agreements or assurances ... Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned". Nuremberg Principle VI (b) defines War Crimes as "violations of the laws or customs of war" and Nuremberg Principle VI (c) defines Crimes against Humanity as "murder, extermination ... and other inhumane acts done against any civilian population ... when ... carried on in execution of, or in connection with any crime against peace or any war crime". In addition, the NPT is being violated now, in that Britain is not attempting to negotiate immediate and complete nuclear disarmament. Cardinal Principles The ICJ, at para.78, details two cardinal principles of international law contained in the texts of the above "fabric of humanitarian law". It explains that "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 declarations, conventions and treaties listed above form the core elements of modern customary international law binding on Britain because it has not persistently objected to being bound by them. In fact, Britain has consistently endorsed decisions by international tribunals in which their customary status was affirmed. For example, Britain confirmed these as customary laws at the Nuremberg International Military Tribunal, in the International Criminal Tribunal for the former Yugoslavia and in the International Criminal Tribunal for Rwanda. In other words the international humanitarian principles used to assess the legality of nuclear weapons are well established in the international legal order. These customary laws are binding on all states at all times. General Illegality The whole text and tenor of the ICJ make it arguable that even in extremis, any threat or use of nuclear weapons is likely to be unlawful. The ICJ specified, at para.105 2E, that "the threat or use of nuclear weapons would be generally contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law". The ICJ also envisioned, at para.94, no circumstances under which the use of nuclear weapons would not violate international law saying "none of the states advocating the legality of the use of nuclear weapons under certain circumstances, including the 'clean' use of smaller, low yield, tactical nuclear weapons, has indicated what, supposing such limited use were feasible, would be the precise circumstances justifying such use; nor whether such limited use would not tend to escalate into the all-out use of high yield weapons". The ICJ acknowledged, at para.36, the "unique characteristics of nuclear weapons, and in particular their destructive capacity, their capacity to cause untold human suffering, and their ability to cause damage to generations to come". The ICJ held, at para.79, that the "fundamental rules (of humanitarian law) 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". In conclusion, the ICJ, as a whole, gives a presumption of illegality. A Possible Lawful Use? The only possible loophole that may have been left by the ICJ was when the Court stated, at para.105 2E, "… in view of the present state of international law viewed as a whole ... and of the elements of fact at its disposal, the Court is led to observe 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 statement must be assessed in light of the judges' appended statements, many of which were very detailed and closely reasoned. Six of the 14 judges (Ranjeva, Herczegh, Ferrari Bravo, Shahahbuddeen, Weeramantry and Koroma) all believe that any threat or use of nuclear weapons will always be unlawful. Furthermore, two judges (Bedjaoui and Vereschetin) argued that although the threat or use of nuclear weapons could not be considered lawful, the current state of international law does not enable us to confidently assert that there is a prohibition of this nature. This reflects a particular doctrine of international law, in which permission and prohibition have to be established individually and are not simply by the demise of the other; this follows from (they believe) the incomplete nature of international law. Judge Bedjaoui, President of the ICJ, specifically wrote his Declaration to explain why he used his casting vote for the adoption of paragraph 105 2E. At para.11 of his Declaration he states very clearly, "I cannot sufficiently emphasize the fact that the Court's inability to go beyond this statement of the situation cannot in any way be interpreted as a half-open door to the recognition of the legality of the threat or use of nuclear weapons". He also stated, at para.9, that "at no time did the Court lose sight of the fact that nuclear weapons constitute a potential means of destruction of all mankind". At para.20 he says, "The very nature of this blind weapon therefore has a destabilizing effect on humanitarian law which regulates discernment in the type of weapon used".2 In summary 8 a majority of the judges believed that any threat or use of nuclear weapons could not be considered lawful. Illegality of British Nuclear Weapons The ICJ was asked to consider a general question and did not have the "elements of facts at its disposal" to enable it to be more specific. However, if we apply the principles of international law to the British Trident system presently deployed, along with the current British deterrence policy as outlined in the Strategic Defence Review of 1998 and the NATO Strategic Concept Document, and place this within the context of the destructive capacity of the warheads and their likely targets then it is quite clear that British Trident is unlawful. Trident nuclear warheads are 100 to 120 kilotons each and have assigned to them military targets in and around Moscow. Such use of these particular nuclear weapons could not distinguish between civilian and military targets, nor are they intended to do so. The reason nuclear weapons are targeted in this way is to try to deter war by threatening mass destruction. The tragic flaw in this logic being that if nuclear deterrence fails and Britain's bluff is called, the threat of mass destruction must be carried out. It follows that the purpose of Trident is to terrorise and to create "incalculable and unacceptable" risks.3 Indeed, the point of "nuclear deterrence", however it is fudged, is to threaten mass destruction. Many citizens and organisations have asked for examples of what Britain would consider to be a lawful use of its Trident nuclear weapons. They have never been given a straight answer. They believe that Trident nuclear weapons are being used to frighten and intimidate the 'enemy' and to threaten them with mass destruction. This is, they contend, unlawful. There might conceivably be some uses of a one-kiloton nuclear warhead targeted on military forces in the middle of an ocean, or at a tank in the middle of a desert, which might be considered lawful, but conventional weapons would suffice for the job without carrying the unconscionable risk of nuclear escalation. Besides which, this is not what Trident is configured to do. Because Britain has not reduced all the warheads on British Trident submarines to one kiloton or below, and because most, if not all, targets are in the vicinity of towns and cities with civilian populations, any targeting of these places with the warheads currently deployed on Trident would lead to large-scale loss of civilian life and thus be unlawful. Therefore, the British Trident system is an immediate and ongoing danger to life on Earth, a threat to international peace and unlawful within the terms of the ICJ. Self-Defence The ICJ held, at para.42, that "a use of force which is proportionate under the law of self-defence must, in order to be lawful, also meet the requirements of the law applicable in armed conflict which comprise in particular the principles and rules of humanitarian law". The main stumbling block for Britain can be found by examining the oral presentation given by Sir Nicholas Lyell to the ICJ on November 15, 1995. This illustrates the mind-set of a state so used to the thinking behind nuclear deterrence that it has forgotten what international humanitarian law is about. After admitting that "there is no doubt that the customary law of war does prohibit some uses of nuclear weapons, just as it prohibits some uses of all types of weapons", he then undermines this by elaborating a situation in which states are faced with invasion by overwhelming enemy forces: "If all other means at their disposal are insufficient, then how can it be said that the use of a nuclear weapon must be disproportionate? Unless it is being suggested that there comes a point when the victim of aggression is no longer permitted to defend itself because of the degree of suffering which defensive measures will inflict". 4 Yet this is the point of international humanitarian law. It is intended to limit the terrible effects of war and to ensure that there is a world left after a conflict ends. This means self-restraint even in the midst of justified self-defence.
According to the President of the Court, Judge Bedjaoui, "self-defence – if exercised in extreme circumstances in which the very survival of a State is in question – cannot engender a situation in which a State would exonerate itself from compliance with 'intransgressible' norms of international humanitarian law ... It would thus be quite foolhardy unhesitatingly to set the survival of a State above all other considerations, in particular above the survival of mankind itself". 5
The Strategic Defence Review conducted by the government states, "The end of the Cold War has transformed our security environment. The world does not live in the Shadow of World War. There is no longer a direct threat to Western Europe or the United Kingdom as we used to know it, and we face no significant military threat to any of our Overseas Territories". 7
Defence Of Vital Interests
It is clear that British nuclear weapon deployment and policy is not purely concerned with self-defence or even with retaliation against a nuclear attack from another NWS, but is also "to defend our vital interests to the utmost" as expressed in the Rifkind Doctrine.8
As Lord Murray (a former Lord Advocate of Scotland) pointed out, even a one kiloton bomb "would flatten all buildings within half a kilometre with up to 50% fatalities up to 1 kilometre and a prevailing wind could carry fall-out as far as 25 km downwind". 10
And yet in the Commons Debate of February 17, 1998, Foreign Secretary Robin Cook said that Saddam Hussein "should be in no doubt" that if he were to use chemical weapons against joint British-US air strikes "there would be a proportionate response". 12 Interviewed on BBC Radio 4 on February 18 Defence Secretary George Robertson was given an opportunity to deny the nuclear option and he did not. All these were signals suggesting that nuclear weapons could be considered. They were also meant to be understood as such.
The whole purpose of nuclear deterrence is to create uncertainty about intentions. This means that the British Government has to persuade its 'enemies' that it might be willing to break international law. For instance, in the 1991 NATO Strategic Concept Document, Article 38 asserted that nuclear weapons are essential and permanent because they "make a unique contribution in rendering the risks of any aggression incalculable and unacceptable". 13
Collective Self-Defence Also implicit in the ICJ statement where the wording is "its very survival" is the view that a state cannot use its nuclear weapons to protect another state whose survival is at stake. British and NATO policy continues to be that nuclear weapons could be used in collective self-defence. It follows that Britain's reservation of its right to use nuclear weapons in defence of other states, such as when Iraq invaded Kuwait, is a violation of international law. War Crimes It is a general principle of law recognised by civilized nations that a person is presumed to intend the necessary and foreseeable consequences of their actions. Any individual who ordered the use of the British nuclear weapons which are currently deployed on
Trident submarines would have committed a war crime as determined by Article 8 (2) (b) parts iv and v of the International Criminal Court Statute. "War crimes means ... serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts; ... (iv) Intentional launching an attack in the knowledge that such an attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long term and severe damage to the natural environment which would clearly be excessive in relation to the concrete and direct overall military advantage anticipated, (v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives".14 The 100 kiloton warheads on Trident are each eight times more powerful than the bomb used against Hiroshima. That destruction in Hiroshima was ruled a war crime in the Shimoda Case.15
The threat to target civilians with nuclear weapons, whether as an unprovoked attack or as a reprisal, is therefore unlawful. In the oral statement that Britain gave to the ICJ on November 15, 1995, Sir Nicholas Lyell admitted that ".... even a military target must not be attacked if to do so would cause collateral civilian casualties or damage to civilian property which is excessive in relation to the concrete and direct military advantage anticipated from the attack".16
Faslane in Scotland is the primary base used by Britain's four nuclear-armed Trident submarines. There is always one Trident submarine on 24-hour patrol at all times. Each Trident submarine has 48 warheads of 100 to 120 kilotons each. A 100-kiloton warhead is too powerful to distinguish between civilian and military targets and its long lasting effects cannot be contained within space or time and therefore violates international law. "Today the scale of Britain's nuclear capability and the way it is deployed suggest that it remains oriented principally against Russia. An attack using the warheads on one submarine against likely targets in the Moscow area would result in over 3 million deaths ... and ... there would also be massive nuclear fallout over urban areas. Thousands of people would die over a 4 to 12 week period from this fallout". 17 Other potential targets are Russian Northern Fleet submarine bases. In Britain there are towns and villages close to every key submarine facility as is the case with Faslane, which is near the civilian population in Glasgow. There are also civilian populations close to Russian bases near Murmansk. Trident warheads exploding above these bases would cause devastation over a wide area and in each case would result in thousands of civilian casualties in urban areas. The areas affected would be dangerous to rescue staff and civilians who would want to use the area in future. Preparations for War Crimes The preparation for war crimes is itself a war crime, as made most explicit in the International Criminal Court Statute Article 25 (3). "In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: ...(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission". 18 This is a culmination of various precedents such as the last paragraph of Article 6 of the Charter of the International Military Tribunal at Nuremberg on "instigators and accomplices participating in the formulation ... of a common plan or conspiracy". 19 Just as the use of British nuclear weapons would be illegal and criminal so is the threat to use them, which is what Trident deployment and the British Government's reliance on nuclear deterrence is all about. Para.48 of the ICJ states, "Possession of nuclear weapons may indeed justify an inference of preparedness to use them. In order to be effective, the policy of deterrence ... necessitates that the intention to use nuclear weapons be credible. Whether this is a 'threat' contrary to Article 2, paragraph 4, [of the UN Charter] depends upon whether the particular use of force ... would necessarily violate the principles of necessity and proportionality. In any of these circumstances the use of force, and the threat to use it would be unlawful under the law of the Charter."
Even US Judge Schwebel explains that states have threatened to use their nuclear weapons "by the hard facts and inexorable implications of the possession and deployment of nuclear weapons; by a posture of readiness to launch nuclear weapons 365 days a year, 24 hours of every day; by the military plans, strategic and tactical, developed and sometimes publicly revealed by them; and, in a very few international crises, by threatening the use of nuclear weapons. In the very doctrine and practice of deterrence, the threat of the possible use of nuclear weapons inheres". 20
British nuclear warheads of 100 kilotons could never be used in conformity with the principles of necessity and proportionality, therefore continuous active deployment, along with the stated readiness to use them when necessary, is an illegal threat to use nuclear weapons. This incurs individual criminal responsibility in international law. Policy makers, state employees, researchers and technicians are engaged in the planning and preparation of gross violations of customary humanitarian law, and so committing a further crime under international law Crimes Against Peace The ICJ, at para.99, appreciated "the full importance of the recognition by Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons of an obligation to negotiate in good faith a nuclear disarmament". It ruled unanimously, at para.105F, "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". At para.99 it stated, "The legal import of that obligation ... is ... to achieve a precise result - disarmament in all its aspects". It is apparent that none of the NWS has discharged these obligations of both customary and conventional international law. This is in fact a Crime against Peace as defined in the Nuremberg Principle VI (a), which says that Crimes against Peace are, "Planning, preparation, initiation or waging of ... a war in violation of international treaties, agreements or assurances ... Participation in a common plan or conspiracy for the accomplishment of any of the foregoing". 21
Britain has made clear it has no immediate intention of eliminating its Trident system. The Strategic Defence Review specifies plans for upgrading Trident in the medium term and keeping options open for a replacement in the long term. Recent press revelations and a report by Alan Simpson MP presents evidence of the new refurbishment programme at the Atomic Weapons Establishment at Aldermaston costing one hundred and fifty million pounds Sterling and of a linkage with the US 'son of Trident' programme to upgrade nuclear warheads. There is also proof of increased scientific collaboration between Britain, France and the US. Simpson's report concludes, "there is strong evidence that Britain is currently involved in the development of prototype designs to replace the current Trident nuclear warhead". 22
Britain's refusal to disarm Trident flouts Article VI of the NPT. The continuing development of new nuclear weapons is also a breach of Article VI and constitutes a violation of international law. Conclusion The British Government has frequently been asked but has never explained to the ICJ or to the British public how it could possibly use its nuclear weapons legally. It has not even been able to outline one hypothetical example. The government has, in fact, been very careful to say that it could never foresee the precise circumstances and could therefore not determine the legality until the time came to use them. It is clear that the British Government has to date been unable and unwilling to open itself to independent legal scrutiny.
The form of words the government usually uses is: "the legality or otherwise of any specific use of any nuclear weapons ... can only be determined in the light of all the circumstances applying at the time such use is being considered. It is impossible to anticipate in advance with any confidence the exact circumstances which might arise, and to speculate on particular hypothetical cases would serve no purpose". 23
It is pertinent in this last year of the UN Decade of International Law to remember that the first UN Resolution passed called for nuclear weapons to be outlawed. Over five decades later the world is at a crossroads. Research for new and deadlier nuclear weapons continues with plans to place them in space. The non-proliferation regime is breaking down rapidly. The world faces formidable social and environmental crises that require co-operative non-violent conflict resolution. The hypocrisy of the NWS, who expect international law to be applied to others but not to themselves, has destabilised the global community for decades and deeply undermines the international legal order. It is time for the majority of law-abiding states to take the first step in implementing the ICJ Advisory Opinion by taking Britain to the Court and putting its Trident nuclear weapons on trial. Angie Zelter is a member of Trident Ploughshares 2000. For more information about the case and Trident Plougshares 2000 visit the website at: http://www.gn.apc.org/tp2000/ Notes and References 1. Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, General List No. 95, para.75, July 8 1996. See also transcript of Sheriff Gimblett's ruling in Documents & Sources, and the related report in News Review. 2. President Judge Bedjaoui's Declaration, paragraphs 9, 11, 20 & 22. Appended to the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, General List No. 95, July 8, 1996. 3. 1991 NATO Strategic Concept Document, Article 38. 4. Nicholas Lyell, November 15, 1995, Oral Statement, CR 95/34, p.46 & 47. Appended to the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, General List No. 95, July 8, 1996. 5. Op Cit, Bedjaoui, ICJ, 1996. 6. Christopher Greenwood, International Committee of the Red Cross No.316, p.65-75, January 1997. 7. UK Strategic Defence Review, Ch.2.23, July 1998. 8. "UK Defence Strategy: A Continuing Role for Nuclear Weapons?", Malcolm Rifkind, Speech, London, November 1993. 9.Op Cit, UK Strategic Defence Review, 1998. 10. Nuclear Weapons and the Law, Lord Murray, Oxford, October 15, 1998. 11. The Dissenting Opinion of Vice-President Judge Schwebel, p.1 & 12, Appended to the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, General List No. 95, July 8, 1996. 12. Hansard, House of Commons Debate, February 17, 1998. 13. NATO Strategic Concept Document, 1991. 14. UN Doc. No.A/CONF.183/9 Rome Statute of the International Criminal Court. 15. Ryuichi Shimoda et al vs. The State, Tokyo, December 1963. 16. Op Cit, Lyell, 1995, in ICJ, 1996. 17. "Trident, Britain's Weapon of Mass Destruction", John Ainslie, p.1. March 1999. 18. Op Cit, UN Doc. No.A/CONF.183/9. 19. Charter of International Military Tribunal at Nuremberg, Articles 6. 20. Op Cit , Schwebel, ICJ, 1996. 21. The Nuremberg Principles, VI (a). 22. "The Next Chevaline Scandal?" Alan Simpson MP and the Campaign for Nuclear Disarmament, August 11, 1999. 23. Letter to Angie Zelter, Hazel Finch, Ministry of Defence, October 23, 1997. Link to further alerts on opposition to nuclear weapons.
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