Judgment Day At World Court: Nuclear Weapon States Brought To Book
July 8, 1996 may well be remembered as the day when a nuclear weapon-free world became more than a dream. Fittingly, the event which could decisively shift the image of nuclear weapons from ultimate political virility symbol to shunned pariah occurred in the Peace Palace at The Hague.
On 15 December 1994, despite desperate countermoves by the NATO nuclear weapon states, a clear majority of the UN General Assembly adopted a resolution asking the International Court of Justice (known as the World Court): "Is the threat or use of nuclear weapons in any circumstance permitted under international law?" On 8 July the Court came close to answering with a categoric "no".
At last November's public hearings, the NATO nuclear states and Russia (China took no part) warned the Court that it would be ruling, in France's words, "not on an innocuous question but on an essential problem...one which is at the core of the national defence systems of a large number of States." The USA and UK added that an advisory opinion from the Court "could seriously disrupt current arms control negotiations" - a clear reference to the stalled Comprehensive Test Ban Treaty negotiations in Geneva. When these resume on 29 July, they will now have to contend with the unanimous demand by the Court's 14 judges that the nuclear weapon states honour their obligation in Article VI of the Nuclear Non-Proliferation Treaty "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."
More remarkably, the Court declared that the threat or use of nuclear weapons would be "contrary to the rules of international law applicable to armed conflict" in almost any imaginable circumstance. The only exception, in paragraph E of its advisory opinion (of which more later), was 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."
The vote on these last two findings was 7 to 7, with the President - Algerian judge Bedjaoui - casting a second deciding vote. However, since three of the dissenting judges did so because they wanted no such exception, the vote for general illegality was effectively 10 to 4.
The British government had advised the Court to use its discretion not to answer this "hypothetical and essentially political" question. By declining to do so, the Court asserted its function as the UN's judicial organ to uphold the law against the sweeping powers of the five permanent members of the Security Council.
The World Court Project, an international network of lawyers, doctors and peace activists, evolved the novel idea of using the Court via a General Assembly resolution. They argued that the 1993 Chemical Weapons Convention outlaws any use of these weapons of mass destruction regardless of size, even in self- defence. Yet there is no such specific prohibition of nuclear weapons, though their effects are more severe, extensive and longlasting. They generate unparalleled blast and heat effects; their radioactive products create terrible health problems; and radioactivity's genetic effect is uniquely cumulative through an unknown number of generations.
The Project drew upon the anti-nuclear majority of UN member states, and by-passed the declared nuclear weapon states' veto in the Security Council. Also it mobilised the public conscience in a new way. Some 3.7 million individual signed Declarations of Public Conscience, mostly from Japan, were presented to the Court stating the belief that nuclear weapons are morally wrong. They invoke the "de Martens" clause of the 1907 Hague Convention, which requires the Court to take into account the "dictates of the public conscience" when judging the conduct of war. This was the first time the Court had accepted "citizens' evidence" in support of a case.
Forty-five governments participated, twice the number in any previous World Court case. Over two-thirds argued for illegality, and only Germany and Italy testified orally in support of the NATO nuclear trio and Russia at the public hearings. The Mayors of Hiroshima and Nagasaki, allowed to testify by the Japanese government after strong public pressure, were eloquent ambassadors for the victims of their devastated cities.
The implications of the Court's decision are far-reaching. For example, NATO's insistence on the option to use nuclear weapons first is now illegal; as is the new UK-France sub-strategic deterrence doctrine of threatening "rogue" states with a low-yield warning shot if British or French "vital interests" are at risk. Moreover, by voting with the President, the Russian and Chinese judges indicated a split among the "Permanent Five". Chinese judge Shi stated in his opinion that deterrence "...is within the realm of politics, not that of law...", but that it "should be an object of regulation by law..." The Italian judge supported him, adding that "the concept of deterrence has no legal value." Most significant of all, British judge Dame Rosalyn Higgins effectively outlawed any use of Trident when she argued that " a weapon will be unlawful per se if it is incapable of being targeted at a military objective only... To the extent that a specific nuclear weapon would be incapable of this distinction, its use would be unlawful."
In my view as a former operator of nuclear weapons in the Fleet Air Arm, this places a duty on all military professionals in the nuclear states to review their whole attitude to nuclear weapons, which are now effectively in the same category as chemical and biological weapons. They need to know that the Court cited the Nuremberg Principles in the body of customary international law to which nuclear weapons are now confirmed to be subject. Ironically, the Security Council unanimously endorsed these principles when setting up the War Crimes Tribunal on Bosnia. Military leaders who shrug off this Court opinion must be reminded that what distinguishes them from hired killers or terrorists is respect for the law: military, international and domestic law.
In his statement justifyng his casting vote, judge Bedjaoui wrote: "There will be those who will not fail to interpret paragraph E as envisaging the possibility of states having recourse to nuclear arms in exceptional circumstances. I cannot insist strongly enough that the inability of the Court to go further than the point it actually reached CANNOT IN ANY WAY BE INTERPRETED as itself evidence of a half-open door for the recognition of the legal permissibility of threatening or using nuclear weapons." (emphasis added)
Paradoxically, this crisis for the declared nuclear weapon states offers an opportunity for Britain to seize a world leadership role. The moment has come for one of them to break ranks. Britain, with the smallest nuclear arsenal increasingly dependent on the USA, and Trident a growing embarrassment to the Royal Navy and Treasury, is best-placed to do so. Championing the law, it could lead a powerful new drive for rapid prohibition of nuclear weapons in the same way as other weapons of mass destruction have been. Such a bold U-turn would be widely welcomed, following global outrage at Chinese and French tests and the current deadlock over the CTBT negotiations. Opinion polls last October showed that, even in Britain and France, 51% now reject nuclear weapons. How about that for Britain's contribution to the new millenium?
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