Francis A. Boyle, Professor of International Law, Law Building, Illinois 61820.
©COPYRIGHT 1996 BY FRANCIS A. BOYLE. ALL RIGHTS RESERVED. Introduction
In my book The Future of International Law and American Foreign Policy (Transnational Publishers Inc: 1989), I traced the origins of the idea to request an Advisory Opinion on the Legality of Nuclear Weapons from the International Court of Justice-the so-called World Court of the United Nations System-to the late Sean MacBride, then The Lawyers Committee on Nuclear Policy, the International Association of Lawyers Against Nuclear Arms (IALANA), and others 1. This suggestion was formally taken up and consolidated into a Joint Project undertaken by the International Association of Lawyers Against Nuclear Arms, the International Peace Bureau, and the International Physicians for the Prevention of Nuclear War, and was then entitled The World Court Project on Nuclear Weapons and International Law 2. These anti-nuclear ideas, sentiments and efforts eventually bore fruit – not surprisingly – among the member states of the United Nations General Assembly constituting the Non-Aligned Movement. At their initiative, on 15 December 1994, the General Assembly adopted Resolution 49/75K, requesting the International Court of Justice “urgently” to render its Advisory Opinion on the following question: “Is the threat or use of nuclear weapons in any circumstances permitted under international law”? Resolution 49/75K was adopted by 78 votes in favor, to 43 against, with 38 abstentions. In response thereto, on 8 July 1996, the International Court of Justice issued its Advisory Opinion entitled Legality of the Threat or Use of Nuclear Weapons. It is not my purpose here to provide a detailed, comprehensive analysis of this World Court Advisory Opinion, together with its appended Declarations by five Judges, its appended Separate Opinions by three Judges, and its appended Dissenting Opinions by six Judges. That endeavor would require the publication of an entire book. Rather, it is my precise purpose here to provide the reader with a basic understanding of the monumental importance of the Advisory Opinion itself. For almost all intents and purposes, the World Court held that the threat and use of nuclear weapons are illegal. In other words, nuclear deterrence itself is illegal as well. The Criminality of the Threat and Use of Nuclear Weapons
Of course the World Court did not directly get into the question of the criminality of the threat and use of nuclear weapons. This is because of the precise nature of the question posed to the Court by the General Assembly: “Is the threat or use of nuclear weapons in any circumstances permitted under international law?” In Paragraph 20 of the Advisory Opinion, the Court – for its own reasons – decided to reformulate this question as follows: “Its real objective is clear: to determine the legality or illegality of the threat or use of nuclear weapons”. As reformulated, that is the question the Court set out to answer during the remainder of the Opinion: determining their legality or illegality, not their criminality. Nevertheless, in this regard, Paragraph 499 of the United States Department of the Army Field Manual 27-10: The Law of Land Warfare (1956) has the following to say on the subject of international criminality:
499. War Crimes
The term “war crime” is the technical expression for a violation of the law of war by any person or persons, military or civilian. Every violation of the law of war is a war crime.
In other words, violations of the laws and customs of warfare are not simply “illegal” or “unlawful”, but are also “criminal”. Therefore, during the course of my analyzing the World Court’s Advisory Opinion, whenever the Court discusses violations of the laws and customs of war, or violations of the Hague Conventions and Regulations, or violations of the Geneva Conventions and Protocols, or violations of international humanitarian law, etc. with respect to the threat and use of nuclear weapons, the reader must understand that such violations are not just “illegal” and “unlawful” but are also “war crimes” and thus “criminal” under basic principles of international law that have been fully subscribed to by the United States government itself. Hence my conclusions (1) that both the threat and use of nuclear weapons are criminal; and (2) that nuclear deterrence itself is criminal. The Right to Life
The first substantive issue dealt with by the World Court in the Advisory Opinion was the right to life. In Paragraph 25 of the Opinion, the Court held that: “In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities”. The Court derives this conclusion from Article 6 of the International Covenant on Civil and Political Rights, to which the United States government is now a contracting party 3:
Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
Of course, treaties are “the supreme Law of the Land” under Article VI of the United States Constitution, the so-called Supremacy Clause. I might add that Covenant Article 6 was in turn based upon Article 3 of the 1948 Universal Declaration of Human Rights (UDHR): “Everyone has the right to life, liberty and security of person”. Historically the United States government has been in the vanguard of the international movement to proclaim such fundamental provisions of the Universal Declaration of Human Rights to constitute customary international law 4. Hence the United States government is bound by UDHR Article 3. Furthermore, customary international law is part of U.S. federal common law and the common law of the States of Union 5. The Court points out in Paragraph 25 that “what is an arbitrary deprivation of life” contrary to Article 6 of the Covenant must be determined by “the law applicable in armed conflict which is designed to regulate the conduct of hostilities”. Since, as we shall see below, in the Opinion of the World Court, almost all uses of nuclear weapons would violate some provision of the laws of war, the conclusion becomes obvious that almost all uses of nuclear weapons would violate Covenant Article 6 and, I would add, UDHR Article 3. Furthermore, I would point out that the threat to use nuclear weapons, including therein nuclear deterrence itself, violates the right to the “security of person” guaranteed by the above-quoted UDHR Article 3. In addition to setting forth the requirements of customary international law, UDHR Article 3 became the basis for the first sentence of Article 9(1) of the aforementioned International Covenant on Civil and Political Rights: “Everyone has the right to liberty and security of person”. Thus it is fair to conclude from reading the World Court’s Advisory Opinion that the threat to use nuclear weapons, including therein nuclear deterrence itself, would violate the right to “security of person” recognized by customary international law and a treaty to which the United States government is a party. In other words, the threat to use nuclear weapons, including nuclear deterrence itself, violates “the supreme Law of the Land” according to Article VI of the United States Constitution as well as U.S. federal common law and the common law of the States of the Union. Genocide
Next, in Paragraph 26 of the Opinion, the Court deals with the question whether the use of nuclear weapons would violate the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, to which the United States government is a contracting party 6. The Court said that liability depended upon the state using nuclear weapons having the requisite “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such” that is required by Article II of the Convention:
The Court would point out in that regard that the prohibition of genocide would be pertinent in this case if the recourse to nuclear weapons did indeed entail the element of intent, towards a group as such, required by the provision quoted above. In the view of the Court, it would only he possible to arrive at such a conclusion after having taken due account of the circumstances specific to each case.
This holding by the Court lends support to the proposition that under certain circumstances the use of nuclear weapons would indeed constitute the international crime of genocide. For example, the so-called counter-ethnic destruction of civilian population centers because of their constituent ethnicity alone would clearly constitute genocide. Also, the so-called “counter-value” destruction of civilian population centers produces a similar conclusion. It is a “general principle[s] of law recognized by civilized nations” (vide ICJ Statute Article 38(1)(c)) that a person is presumed to intend the necessary and foreseeable consequences of his or her actions. As Judge Weeramantry pointed out at page 50 in his Dissenting Opinion:
…However, having regard to the ability of nuclear weapons to wipe out blocks of population ranging from hundreds of thousands to millions, there can be no doubt that the weapon targets, in whole or in part, the national group of the State at which it is directed.
Nuremberg held that the extermination of the civilian population in whole or in part is a crime against humanity. This is precisely what a nuclear weapon achieves. Needless to say, the 1948 Genocide Convention codified the Nuremberg “crime against humanity” into positive treaty form. Even the fairly conservative Judge Stephen Schwebel from the United States, who is Vice President of the International Court of Justice, offered the following condemnation of the so-called counter-value use of nuclear weapons on page 7 of his Dissenting Opinion:
…It cannot be accepted that the use of nuclear weapons on a scale which would – or could – result in the deaths of many millions in indiscriminate inferno and by far-reaching fallout, have profoundly pernicious effects in space and time, and render uninhabitable much or all of the earth, could be lawful.
Judge Schwebel was elected to the World Court in 1981 in order to replace my teacher, Judge Richard R. Baxter, who had died prematurely from cancer. Before his election to the Court, Judge Schwebel was Deputy Legal Adviser to the United States Department of State during the Reagan Administration-hardly a hotbed of radicalism 7. In other words, the Reagan administration was behind Judge Schwebel’s election to the World Court. Despite these impeccably conservative credentials, Judge Schwebel condemned the counter-value use of nuclear weapons in no uncertain terms. Here I would add to the Court’s analysis the fact that Article III of the Genocide Convention also prohibits and requires the punishment of (a) genocide; (b) conspiracy to commit genocide; (c) direct and public incitement to commit genocide; (d) attempt to commit genocide; and (e) complicity in genocide. I would argue that the counter-ethnic targeting of civilian population centers, as well as the counter-value targeting of civilian population centers, by United States government officials each constitute a separate conspiracy to commit genocide in violation of Genocide Convention Article III(b) and are therefore crimes that are still taking place today. Furthermore, according to Article V of the Genocide Convention, the Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the Genocide Convention and, in particular, to provide effective penalties for persons guilty of genocide or of any of the other acts enumerated in Article III. Pursuant to Article V, the Congress of the United States of America adopted what is called domestic implementing legislation for the Genocide Convention that makes genocide a crime under U.S. federal criminal law. Basically following the terms of the Genocide Convention, this Genocide Convention Implementation Act of 1987 (codified at Title 18 of the United States Code) defines the crime of “genocide” as follows:
§1901. Genocide
(a) BASIC OFFENSE – Whoever, whether in time of peace or in time of war, in a circumstance described in subsection (d) and with the specific intent to destroy, in whole or in substantial part, a national, ethnic, racial, or religious group as such- (1) kills members of that group; (2) causes serious bodily injury to members of that group; (3) causes the permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques; (4) subjects the group to conditions of life that are intended to cause the physical destruction of the group in whole or in part; (5) imposes measures intended to prevent births within the group; or (6) transfers by force children of the group to another group; or attempts to do so, shall be punished as provided in subsection (b).
According to subsection (d), the basic offense must be committed either within the United States, or by a national of the United States. The penalty for violating subsection (a)(1) where death results, is death or imprisonment for life and a fine of not more than $1 million. The penalty for any other violation is a fine of not more than $1 million or imprisonment for not more than twenty years, or both. Environmental Protection
Most significantly, the World Court devotes seven paragraphs of its Opinion (paragraphs 27 to 33) to discussing the international environmental law applicable to the use of nuclear weapons. The Court begins its environmental analysis by enunciating the following principle of customary international law concerning the threat or use of nuclear weapons with respect to the environment: “The existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment”. (Advisory Opinion Paragraph 29.) It is fair to conclude from this principle that since the use of nuclear weapons would necessarily entail the release of radioactive fall-out into areas beyond the control of the user and its adversary, the use of nuclear weapons would violate this basic principle of customary international environmental law. The Court notes that states undoubtedly have the right to self-defense: “…Nonetheless, States must take environmental considerations into account when assessing what is necessary and proportionate in the pursuit of legitimate military objectives. Respect for the environment is one of the elements that go to assessing whether an action is in conformity with the principles of necessity and proportionality”. (Advisory Opinion, Paragraph 30.) Personally, I have never seen any evidence to believe that the United States government, or for that matter, any other nuclear weapons state, has ever taken into account any environmental considerations when it comes to their plans for the threat and use of nuclear weapons, including therein nuclear deterrence. Consequently all the nuclear weapons states currently stand in breach of this fundamental requirement of customary international environmental law as articulated by the World Court in this Advisory Opinion. The Court then comes to its critical holding on international environmental law with respect to the threat and use of nuclear weapons in Paragraph 31 of the Opinion by means of employing the following language:
31. The Court notes furthermore that Articles 35, paragraph 3, and 55 of Additional Protocol I provide additional protection for the environment. Taken together, these provisions embody a general obligation to protect the natural environment against widespread, long-term and severe environmental damage; the prohibition of methods and means of warfare which are intended, or may be expected, to cause such damage; and the prohibition of attacks against the natural environment by way of reprisals.
These are powerful constraints for all the States having subscribed to these provisions. In particular, Article 35(3) of Additional Protocol I of 1977 to the Four Geneva Conventions of 1949 states quite clearly: “It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment”. And Article 55 of Geneva Protocol I expressly provides as follows:
Article 55 – Protection of the natural environment
1. Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population. 2. Attacks against the natural environment by way of reprisals are prohibited.
Obviously, none of the nuclear weapons states has ever taken any care to protect the natural environment against widespread, long-term and severe damage when it comes to drawing up their current plans for the threat and use of nuclear weapons, including therein nuclear deterrence. In addition, all of their longstanding plans for the threat and use of nuclear weapons are obviously “expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population”. For the reasons mentioned above, violations of Geneva Protocol I are not simply illegal, but are also war crimes. The United States government signed Geneva Protocol I, but for reasons unrelated to nuclear weapons, the Reagan administration formally decided not to ratify it 8. Nevertheless, the Reagan administration simultaneously announced its willingness to be bound by those provisions of Geneva Protocol I that enunciate rules of customary international law. Clearly, in the World Court’s Advisory Opinion, Article 35(3) and Article 55 of Geneva Protocol I constitute customary international law. Hence by means of its longstanding plans to use nuclear weapons that thoroughly disregard any considerations of respect for the environment, the United States government stands in anticipatory breach of its obligations set forth in Article 35(3) and Article 55 of Geneva Protocol I as well as of general principles of customary international law relating to the environment. The Court concludes its international environmental law analysis concerning the threat and use of nuclear weapons in Paragraph 33 as follows:
33. The Court thus finds that while the existing international law relating to the protection and safeguarding of the environment does not specifically prohibit the use of nuclear weapons, it indicates important environmental factors that are properly to be taken into account in the context of the implementation of the principles and rules of the law applicable in armed conflict.
Once again, to the best of my knowledge, not even one nuclear weapons state has ever taken into account “important environmental factors” when it comes to its planning for the threat and use of nuclear weapons, including therein nuclear deterrence. All of the nuclear weapons states have breached their solemn obligation “to respect and protect the natural environment”, which the Court says in Paragraph 32 of the Advisory Opinion applies to the actual use of nuclear weapons in warfare as well as to nuclear testing. Quite obviously, any use of nuclear weapons would “…constitute a catastrophe for the environment”, as the Court expressly recognized in Paragraph 29 of the Opinion. Violations of the United Nations Charter The Court then turns to the question “of the legality or illegality of recourse to nuclear weapons in the light of the provisions of the Charter relating to the threat and use of force”. In particular, U.N. Charter Article 2(4) contains the following prohibitions:
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.
Certainly, Article 51 of the Charter recognizes that a state has the right to individual and collective self-defense. But as the Court points out in Paragraph 39 of the Opinion: These principles “apply to any use of force, regardless of the weapons employed… A weapon that is already unlawful per se….does not become lawful by reason of its being used for a legitimate purpose under the Charter”. The Court’s implication is obvious: The threat and use of nuclear weapons cannot be justified simply by arguing that they are necessary for self-defense, as the nuclear weapons states have historically and consistently maintained. Likewise, therefore, nuclear deterrence itself cannot be justified under the United Nations Charter by simply arguing that it is necessary for self-defense, as the nuclear weapons states have historically and consistently maintained. The Principles of Necessity and Proportionality
The Court then points out in Paragraph 41 of the Opinion that the exercise of the right of self-defense is subject “to the conditions of necessity and proportionality” as required by customary international law. As the Court says: “This dual condition applies equally to Article 51 of the Charter, whatever the means of force employed”. (Advisory Opinion, Paragraph 41.) Certainly, today’s nuclear weapons states pay little if any attention at all to the principles of necessity and proportionality when it comes to their longstanding plans for the threat and use of nuclear weapons, including nuclear deterrence. Indeed, the entire theory of nuclear deterrence as currently practiced by the world’s nuclear weapons states is premised upon the strategic uncertainty and total disproportionality in their threat to use nuclear weapons. For this reason as well, nuclear deterrence is clearly illegal and, I might add, criminal too. Even if the use of nuclear weapons were to be in legitimate self defense and satisfy the requirements of necessity and proportionality, such use “…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”. (Advisory Opinion, Paragraph 42.) Quite obviously, it would be well-nigh impossible for almost any use of nuclear weapons as currently contemplated by the nuclear weapons states to fulfill all of these conditions for the legality of the threat and use of nuclear weapons. Hence, the conclusion once again that the current plans for the threat and use of nuclear weapons as practiced by the world’s nuclear weapons states are clearly illegal and, I might add to the Court’s analysis, criminal as well. Nuclear Escalation
In Paragraph 43 of the Opinion, the World Court specifically addresses the legality vel non of nuclear escalation within the context of the requirement of proportionality as follows:
…it suffices for the Court to note that the very nature of all nuclear weapons and the profound risks associated therewith are further considerations to be borne in mind by States believing they can exercise a nuclear response in self defence in accordance with the requirements of proportionality.
Once again, to the best of my knowledge, no nuclear weapons state has ever taken into account “the profound risks associated” with the use of nuclear weapons producing nuclear escalation when drawing up their plans for the threat and use of nuclear weapons, including nuclear deterrence, at least in the sense intended by the World Court. To the contrary, the nuclear weapons states have indeed taken into account “the profound risks associated” with the use of nuclear weapons producing nuclear escalation in the perverse sense of deliberately exploiting, compounding, and perpetuating these “profound risks” as the very basis of strategic nuclear deterrence. As currently practiced by today’s nuclear weapons states, nuclear deterrence is purposefully based in substantial part upon the calculated risk of escalation into all-out strategic nuclear warfare. For this reason as well, therefore, nuclear deterrence is illegal and, I might add, criminal. Reprisals
The Court then turned to another alleged justification for the threat and use of nuclear weapons put forth by the nuclear weapons states: reprisal. Even then, the Court pointed out, any reprisal wartime is still “…governed inter alia by the principle of proportionality”. (Advisory Opinion, Paragraph 46.) Once again, however, there is no evidence to believe that any one of the nuclear weapons states has ever drawn up its current plans for the threat and use of nuclear weapons in alleged reprisal in order to take into account the principle of proportionality. Indeed, the entire system of nuclear deterrence is premised in substantial part upon the gross disproportionality of the threatened response to the first use of nuclear weapons by an adversary. For this reason as well, the current plans for the threat and use of nuclear weapons by the nuclear weapons states, including therein nuclear deterrence, are illegal and, I might add, criminal. The Illegality of Nuclear Deterrence
In this regard, because of its critical importance to establishing the illegality of nuclear deterrence, I am going to quote the full text of Paragraph 47 of the Advisory Opinion here:
47. In order to lessen or eliminate the risk of unlawful attack, States sometimes signal that they possess certain weapons to use in self-defence against any State violating their territorial integrity or political independence. Whether a signalled intention to use force if certain events occur is or is not a “threat” within Article 2, paragraph 4, of the Charter depends upon various factors. If the envisaged use of force is itself unlawful, the stated readiness to use it would be a threat prohibited under Article 2, paragraph 4. Thus it would be illegal for a State to threaten force to secure territory from another State, or to cause it to follow or not follow certain political or economic paths. The notions of threat and “use” of force under Article 2, paragraph 4, of the Charter stand together in the sense that if the use of force itself in a given case is illegal – for whatever reason – the threat to use such force will likewise he illegal. In short if it is to be lawful the declared readiness of a State to use, force must be ,a use of force that is in conformity with the Charter. For the rest, no State – whether or not it defended the policy of deterrence – suggested to the Court that it would be lawful to threaten to use force if the use of force contemplated would be illegal.
This is one of the most important passages in the entire Opinion. It directly calls into question the whole basis of so-called nuclear deterrence as being lawful. Briefly put: Since the commission of mass extermination is clearly illegal and criminal, therefore, the threat to commit mass extermination is likewise clearly illegal and criminal. Hence, nuclear deterrence itself is clearly illegal and criminal. Notice the key Sentence: “If the envisaged use of force is itself unlawful, the stated readiness to use it would be a threat prohibited under Article 2, paragraph 4”. Thus, since the annihilation of cities and the mass extermination of millions of human beings would clearly be illegal, then it is also illegal for a state to threaten to do this. That is precisely what nuclear deterrence as currently practiced by the world’s nuclear weapons states is all about: Mutual Assured Destruction or MAD. Paragraph 47 continues: “The notions of ’threat’ and ’use’ of force under Article 2, paragraph 4, of the Charter stand together in the sense that if the use of force itself in a given case is illegal – for whatever reason – the threat to use such force will likewise be illegal”. Thus, once again, since the mass extermination of millions of humans is clearly illegal, then the threat to commit mass extermination is illegal. Here, the Court is once again implicitly condemning nuclear deterrence as such. Paragraph 47 then continues: “In short, if it is to be lawful, the declared readiness of a State to use force must be a use of force that is conformity with the Charter”. But once again, the threat of mass extermination that lies at the very heart of strategic nuclear deterrence clearly would not be compatible with the Charter. The Court then concludes: “For the rest, no State – whether or not it defended the policy of deterrence – suggested to the Court that it would be lawful to threaten to use force if the use of force contemplated would be illegal”. Once again, a state cannot lawfully threaten to use force that would clearly be illegal if it were to be actually used. And no State argued to the contrary despite the opportunity to do so. In essence, the World Court is finding that the nuclear weapons states are effectively stopped to deny the validity of this proposition concerning the illegality of nuclear deterrence. Nuclear deterrence is illegal and criminal because it is based upon a credible threat to do something that has been illegal and criminal since at least the time of the 1945 Nuremberg Charter: the mass extermination of civilian population centers. Possession of Nuclear WeaponsBR> Paragraph 48 of the Advisory Opinion deals with the question of the legality or illegality of possessing nuclear weapons as follows:
48. Some States put forward the argument that possession of nuclear weapons is itself an unlawful threat to use force. Possession of nuclear weapons may indeed justify an inference of preparedness to use them. In order to be effective, the policy of deterrence, by which those States possessing or under the umbrella of nuclear weapons seek to discourage military aggression by demonstrating that it will serve no purpose, necessitates that the intention to use nuclear weapons be credible. Whether this is a “threat” contrary to Article 2, paragraph 4, depends upon whether the particular use of force envisaged would be directed against the territorial integrity or political independence of a State, or against the Purposes of the United Nations or whether, in the event that it were intended as a means of defence, it 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.
Quite obviously, the Court deals with the question of the possession of nuclear weapons within the context of nuclear deterrence. This makes sense. Namely, the nuclear weapons states simply do not have nuclear weapons stored in an underground warehouse somewhere. Rather, their nuclear weapons are actually deployed on highly accurate and sophisticated delivery systems set on a hair-trigger whereby they can be launched within about a 15 minute timeframe from when the order to do so is given. Such credibility of the threat to use nuclear weapons is yet another critical component of the doctrine of strategic nuclear deterrence. Under these circumstances, the Court finds that the possession of nuclear weapons is illegal. It is the conclusion of the World Court here that the possession of nuclear weapons would violate the terms of the United Nations Charter in the event that the threatened use of nuclear weapons (1) would be directed against the territorial integrity of a State; or (2) would be directed against the political independence of a State; or (3) would be directed against the Purposes of the United Nations; or (4) even when intended as a means of legitimate self-defense, would 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”. (Advisory Opinion, paragraph 48 (emphasis added).) But certainly, almost all of the contemplated uses of nuclear weapons currently threatened by the nuclear weapons states pursuant to their doctrine of strategic nuclear deterrence would violate at least one or more or all four of these circumstances. The Court has already discussed the requirements of necessity and proportionality with respect to the threat and use of nuclear weapons in alleged self-defense, so I will not bother to repeat that analysis here. The use of nuclear weapons would also render useless and uninhabitable a substantial section of the territory of the target state, in violation of the first element of Article 2(4) of the United Nations Charter, guaranteeing a state’s territorial integrity. Likewise, the United States has repeatedly threatened to use nuclear weapons in order to coerce the political independence of many states 9, in violation of the second element of U.N. Charter Article 2(4). Finally, the threat to use nuclear weapons would also be inconsistent with the Purposes of the United Nations and therefore violate this third element of U.N. Charter Article 2(4) as well. In this regard, let me recall to mind the Purposes of the United Nations as set forth in Article 1 of the Charter:Chapter I PURPOSES AND PRINCIPLES Article I The Purposes of the United Nations are:
To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;
To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;
To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and
To be a centre for harmonizing the actions of nations in the attainment of these common ends.
Certainly, all of these Purposes of the United Nations would be defeated and set at naught in the event that nuclear weapons were actually used. In the above-quoted Paragraph 48 of the Advisory Opinion the World Court appears to condemn nuclear deterrence once again in no uncertain terms, and to include within this rubric the possession of nuclear weapons with the intention and capability to use them. Hence, such possession of nuclear weapons is clearly illegal and, I might add, criminal as well. This conclusion by the World Court as to the illegality of the possession of nuclear weapons goes far beyond anything argued in most of the scholarly literature produced on this subject during the past two decades. For this reason, Paragraph 48 stands as a resounding vindication to that handful of courageous scholars who have taken the position that the possession of nuclear weapons is illegal despite enduring the guffaws and ridicule of their so-called colleagues. Nuclear Weapons and the Laws of War
For purposes of analysis here, the next critical passage of the Advisory Opinion becomes Paragraph 77:
77. All this shows that the conduct of military operations is governed by a body of legal prescriptions. This is so because “the right of belligerents to adopt means of injuring the enemy is not unlimited” as stated in Article 22 of the 1907 Hague Regulations relating to the laws and customs of war on land. The St. Petersburg Declaration had already condemned the use of weapons “which uselessly aggravate the suffering of disabled men or make their death inevitable”. The aforementioned Regulations relating to the laws and customs of war on land, annexed to the Hague Convention IV of 1907, prohibit the use of “arms, projectiles, or material calculated to cause unnecessary suffering” (Art. 23).
It is clear, therefore, that the laws of war likewise apply to the threat and use of nuclear weapons. Thereunder, nuclear weapons are “unlimited” in their effects. Nuclear weapons also uselessly aggravate the suffering of disabled men and women and make their deaths inevitable. Nuclear weapons also cause unnecessary suffering. Hence, the use of nuclear weapons would violate all three of these basic principles of the laws of war. The United States government is a contracting party to Hague Convention No. IV of 1907 and its annexed Regulations, which constitute a “treaty” and thus the “supreme Law of the Land” under Article VI of the United States Constitution 10. Therefore, current U.S. nuclear deterrence policies stand in anticipatory breach of Hague Convention No. IV and are therefore illegal and criminal. Nuclear Deterrence and International Humanitarian Law
Paragraph 78 of the Advisory Opinion is directly on point with respect to maintaining the illegality of the threat and use of nuclear weapons, including therein nuclear deterrence:
78. The cardinal principles contained in the texts constituting the fabric of humanitarian law are the following. 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 would likewise refer, in relation to these principles, to the Martens Clause, which was first included in the Hague Convention II with Respect to the Laws and Customs of War on Land of 1899 and which has proved to be an effective means of addressing the rapid evolution of military technology. A modern version of that clause is to be found in Article 1, paragraph 2, of Additional Protocol I of 1977, which reads as follows:
“In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience”.
In conformity with the aforementioned principles, humanitarian law, at a very early stage, prohibited certain types of weapons either because of their indiscriminate effect on combatants and civilians or because of the unnecessary suffering caused to combatants, that is to say, a harm greater than that unavoidable to achieve legitimate military objectives. If an envisaged use of weapons would not meet the requirements of humanitarian law, a threat to engage in such use would also be contrary to that law. The World Court clearly said: “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”. Yet, to the contrary, U.S. strategic nuclear weapons systems do indeed make civilians the direct object of attack, and because of their incredible explosive power are also incapable of distinguishing between civilians and military targets. The Court then goes on to say: “According to the second principle, it is prohibited to cause unnecessary suffering to combatants”. But clearly the use of nuclear weapons would cause unnecessary suffering to both combatants and to civilians, the latter of whom remain absolutely protected at all times. The well-documented human suffering in the aftermath of the atomic bombings of Hiroshima and Nagasaki provides conclusive evidence of the validity of this proposition 11. The Court concludes Paragraph 78 by stating: “If an envisaged use of weapons would not meet the requirements of humanitarian law, a threat to engage in such use would also be contrary to that law”. In other words, nuclear deterrence itself is illegal. For example, a nuclear weapons state such as the United States cannot lawfully threaten mass extermination when mass extermination itself would be clearly illegal and criminal. Here once again, the World Court implicitly condemns the whole doctrine of nuclear deterrence as being illegal and, I might add, criminal. Referring explicitly to the Hague Conventions and the Geneva Conventions in Paragraph 79 of the Advisory Opinion, the World Court held as follows: “Further these fundamental rules 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”. Of course, the United States government has ratified Hague Convention No. IV of 1907 and the Four Geneva Conventions of 1949 12 and so is bound to observe them a fortiori. Nuclear Weapons and Nuremberg Accountability
In this regard, it is also significant that in Paragraph 80 of the Advisory Opinion, the World Court invokes and affirms the authority of the 1945 Nuremberg Judgment during the course of analyzing the legality of the threat and use of nuclear weapons under international humanitarian law. Furthermore, in Paragraph 81 of the Advisory Opinion, the World Court repeats with implicit approval the official assertion by the United Nations Secretary General that the Nuremberg Charter of 8th August 1945, inter alia, represents “…part of conventional international humanitarian law which has beyond doubt become part of international customary law….”. Thus, in Paragraphs 80 and 81 of the Advisory Opinion, the World Court purposefully and directly raises the specter of personal criminal responsibility under the Nuremberg Charter, Judgment and (I might add) Principles for government decision-makers bearing command responsibility, aiding and abetting, or otherwise complicit in their country’s plans for the threat and use of nuclear weapons. Since I have already discussed these matters at great length elsewhere, I will not bother to repeat any of that analysis here 13. Nuclear Weapons and International Humanitarian Law
The World Court then turns directly to the question of the applicability of international humanitarian law to the threat and use of nuclear weapons and concludes in Paragraphs 85, 86 and 87 that the aforementioned principles of international humanitarian law apply to nuclear weapons just as they do to any other weapon of warfare:
85. In the view of the vast majority of States as well as writers there can be no doubt as to the applicability of humanitarian law to nuclear weapons. 86. The Court shares that view…. In this respect it seems significant that the thesis that the rules of humanitarian law do not apply to the new weaponry, because of the newness of the latter, has not been advocated in the present proceedings. On the contrary, the newness of nuclear weapons has been expressly rejected as an argument against the application to them of international humanitarian law:
None of the statements made before the Court in any way advocated a freedom to use nuclear weapons without regard to humanitarian constraints. Quite the reverse; it has been explicitly stated,
“Restrictions set by the rules applicable to armed conflicts in respect of means and methods of warfare definitely also extend to nuclear weapons” (Russian Federation, CR 95/29, p.52); “So far as the customary law of war is concerned, the United Kingdom has always accepted that the use of nuclear weapons is subject to the general principles of the jus in bello” (United Kingdom, CR95/34, p.45); and “The United States has long shared the view that the law of armed conflict governs the use of nuclear weapons – just as it governs the use of conventional weapons” (United States of America, CR 95/34, p.85.) 87. Finally, the Court points to the Martens Clause, whose continuing existence and applicability is not to be doubted, as an affirmation that the principles and rules of humanitarian law apply to nuclear weapons.
Thus, consistent with its longstanding position going back to the U.S. Army Field Manual 27-10 of 1956, the United States government expressly conceded before the World Court that international humanitarian law applies to the use of nuclear weapons. But as the World Court has consistently pointed out so far in this Advisory Opinion, it would be difficult to imagine any circumstances in which the threat and use of nuclear weapons would not violate international humanitarian law. Once again, the conclusion becomes inexorable that the threat and use of nuclear weapons, including therein nuclear deterrence, is illegal and, I might add, criminal. Violation of the International Laws of Neutrality by the Use of Nuclear Weapons
The World Court then turns to the question of whether or not the threat and use of nuclear weapons violate the international laws of neutrality. Generally put, the essence of the international laws of neutrality can be found in Hague Convention No. V Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land of 1907 14, and Hague Convention No. XIII Respecting the Rights and Duties of Neutral Powers in Naval War of 1907 15. The United States government is a contracting party to both Hague Neutrality Conventions. No point would be served here by reviewing the contents of these two treaties in detail. Suffice it to say that their basic requirement is that belligerents are bound to respect the territory and the sovereign rights of neutral states during wartime. As Article 1 of Hague Convention No. V. Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land of 1907 put it: “The territory of neutral Powers is inviolable”. In Paragraph 89 of the Opinion the World Court found that these principles of neutrality apply “to all international armed conflict, whatever type of weapons might be used”. In other words, states must respect the international laws of neutrality and the territory and the sovereign rights of neutral states when it comes to the threat and use of nuclear weapons. But this simply cannot be done given the devastating effects of nuclear weapons upon the surrounding environment irrespective of national borders; given the transnational effects of nuclear fallout; and given the transgenerational effects of nuclear radiation. In any event, it is certainly clear that the nuclear weapons states have paid absolutely no attention whatsoever to the customary or conventional international laws of neutrality when it comes to their currently existing plans for the threat and use of nuclear weapons, including therein nuclear deterrence. In other words, the nuclear weapons states are currently threatening to violate the international laws of neutrality and thus stand in anticipatory breach of these two Hague Neutrality Conventions and the customary international laws of neutrality. Conclusion on International Humanitarian Law and Nuclear Weapons
In Paragraph 91 of the Advisory Opinion, the World Court referred to, but refused to endorse, the legality of even “…the use of a low yield nuclear weapon against warships on the High Seas or troops in sparsely populated areas…” as advocated by the United Kingdom and the United States during the course of the proceedings. And in Paragraph 94 of the Opinion, the World Court even goes so far as to expressly refuse to endorse “…the legality of the use of nuclear weapons under certain circumstances, including the ’clean’ use of smaller, low yield, tactical nuclear weapons…” Here the Court’s analysis implies that even such “limited” uses of tactical nuclear weapons would have to comply with international humanitarian law and the international laws of neutrality, assuming that could be done. Even then, the legality vel non of the tactical use of low yield nuclear weapons against military targets would also depend upon “…whether such limited use would not tend to escalate into the all-out use of high yield nuclear weapons”. (Advisory Opinion, Paragraph 94.) Once again, it is difficult to imagine any such circumstances. The Court utters its final condemnation of nuclear weapons in Paragraph 95 of the Opinion as follows:
…Thus, methods and means of warfare, which would preclude any distinction between civilian and military targets, or which would result in unnecessary suffering to combatants, are prohibited. In view of the unique characteristics of nuclear weapons, to which the Court has referred above, the use of such weapons in fact seems scarcely reconcilable with respect for such requirements…
So once again the World Court expressly recognizes the proposition that it is difficult to imagine any circumstances where the threat and use of nuclear weapons would be lawful. The World Court’s Non-Pronouncement in Paragraph 97
Of course, like any other court in the world today, the World Court operates on the basic principle: Never say never. So the Court observes in Paragraph 97 of the Opinion 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 is because of the factual uncertainty surrounding this hypothetical conjecture that had been mentioned in Paragraph 95 of the Opinion in the following language:
…Nevertheless, the Court considers that it does not have sufficient elements to enable it to conclude with certainty that the use of nuclear weapons would necessarily be at variance with the principles and rules of law applicable in armed conflict in any circumstance. [Emphasis added.] Certainly one important implication to be drawn from the above-quoted language taken from Paragraph 97 of the Opinion is that nuclear weapons cannot be used in an ordinary case of legitimate self-defense, such as when a state is actually attacked militarily. Thus, in the Court’s opinion, legitimate self-defense under U.N. Charter Article 51 is a necessary pre-condition, but certainly not a sufficient condition, for the use of nuclear weapons. Rather, the very survival of a state must be at stake in the event of a military attack. This conclusion seems to condemn the longstanding U.S. policy threatening the first-use of nuclear weapons to defend its NATO allies as unlawful and I might add, criminal. Let us assume an extreme case of legitimate self-defense under Article 51 of the United Nations Charter where a state’s “very survival would be at stake”. Even then, according to Paragraph 79 of the Opinion, the Hague Conventions and the Geneva Conventions “constitute intransgressible principles of international customary law”. As pointed out by Judge Bedjaoui, President of the World Court, in his appended Declaration, such intransgressible principles can never be violated, even in extreme circumstances, where the very survival of a state is at stake. I will discuss the Court’s non-pronouncement found in Paragraph 97 of the Advisory Opinion in more detail below when analyzing the Opinion’s dispositif. Suffice it to say here that in this entire Advisory Opinion, the World Court did not tolerate, or approve, or sanction, or condone any threat or use of any nuclear weapons for any reason. The Court simply refused to express “…a definitive conclusion as to the legality or illegality of the use of any nuclear weapons by a State in an extreme circumstance of self-defense, in which its very survival would be at stake…” because of the factual uncertainties surrounding this hypothetical conjecture. Nuclear Disarmament
In Paragraph 99 of the Advisory Opinion, the Court quotes Article VI of the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT) as follows:
“Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control”.
The Court interpreted NPT Article VI to contain a twofold obligation (1) to pursue and (2) to conclude negotiations for nuclear disarmament in good faith as follows:
The legal import of that obligation goes beyond that of a mere obligation of conduct; the obligation involved here is an obligation to achieve a precise result – nuclear disarmament in all its aspects – by adopting a particular course of conduct, namely, the pursuit of negotiations on the matter in good faith.
See Advisory Opinion, para. 99.
And in Paragraph 100 of the Advisory Opinion, the Court clearly states that: “This twofold obligation to pursue and to conclude negotiations formally concerns the 182 States parties to the Treaty on the Non-Proliferation of Nuclear Weapons, or, in other words, the vast majority of the international community”. To the contrary, since 1968 it cannot be said that the world’s nuclear weapons states have ever pursued negotiations on nuclear disarmament in good faith. Indeed, since 1968, except perhaps for the 1986 Gorbachev proposals 16, not one of the nuclear weapons states has ever given any serious consideration to their solemn legal obligation of nuclear disarmament, let alone general and complete disarmament, as required and called for by NPT Article VI. Hence, all of the nuclear weapons states currently stand in material breach of these twin obligations under NPT Article VI and under customary international law as authoritatively determined by the World Court in Paragraph 99 of this Advisory Opinion.
The Dispositif
The World Court then issued its formal rulings in Paragraph 105 of the Advisory Opinion, the so called “dispositif”. I will not bother to repeat all of its elements here. But for our purposes, the critical provisions of the Court’s dispositif will be analyzed below. I will first examine the rulings adopted “unanimously” by the International Court of Justicein the dispositif of this Advisory Opinion. Unanimous Ruling on the U.N. Charter
In Paragraph 105(2)(C) of the Opinion, the World Court ruled unanimously that: “A threat or use of force by means of nuclear weapons that is contrary to Article 2, paragraph 4, of the United Nations Charter and that falls to meet all the requirements of Article 51, is unlawful;” The import of this unanimous ruling by the World Court in Paragraph 105(2)(C) of the Advisory Opinion should be clear by now: It is almost impossible to imagine any threat or use of nuclear weapons that would be compatible with Article 2(4) of the United Nations Charter and that meets all the requirements of Article 51, especially the principles of necessity and proportionality. Indeed, in their current plans for the threat and use of nuclear weapons, including therein nuclear deterrence, the world’s nuclear weapons states have paid absolutely no meaningful attention whatsoever to the requirements of Article 2(4) and Article 51 of the U.N. Charter, especially the principles of necessity and proportionality. Hence, all of the current plans for the threat and use of nuclear weapons by the world’s nuclear weapons states, including therein nuclear deterrence, are “unlawful” and, I might add, criminal. Unanimous Ruling on International Humanitarian Law
In Paragraph 105(2)(D) of the Opinion’s dispositif, the World Court ruled unanimously that: “A threat or use of nuclear weapons should also be compatible with the requirements of the international law applicable in armed conflict, particularly those of the principles and rules of international humanitarian law, as well as with specific obligations under treaties and other undertakings which expressly deal with nuclear weapons;” The import of this unanimous ruling by the World Court in Paragraph 105(2)(D)of the Advisory Opinion should also be clear by now: It is almost impossible to imagine any threat or use of nuclear weapons that would not grossly violate the principles and rules of international humanitarian law, whether customary or conventional. Indeed, in their current plans for the threat and use of nuclear weapons, including therein nuclear deterrence, the nuclear weapons states have paid absolutely no meaningful attention whatsoever to the requirements of international humanitarian law, whether customary or conventional. Hence, all of the current plans for the threat and use of nuclear weapons by the nuclear weapons states, including therein nuclear deterrence, are illegal and, I might add, criminal. Unanimous Ruling on Nuclear Disarmament
Finally, in Paragraph 1O5(2)(F) of the Opinion’s dispositif, the World Court ruled 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”. Quite obviously, since 1968 not one of the nuclear weapons States has discharged these obligations of both customary and conventional international law. All of the world’s nuclear weapons states currently stand in material breach of NPT Article VI as well as these obligations under customary international law articulated by the World Court in this Advisory Opinion. The Court’s Ruling on the Threat and Use of Nuclear Weapons
The World Court then ruled on the legality of the threat or use of nuclear weapons in Paragraph 105(2)(E) of the Advisory Opinion’s dispositif as follows:
E. By seven votes to seven, by the President’s casting vote, It follows from the above-mentioned requirements that 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; However, 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; IN FAVOUR: President Bedjaoui: Judges Ranjeva, Herczgh, Shi, Fleischhauer, Vereschetin, Ferrari Bravo; AGAINST: Vice-President Schwebel; Judges Oda, Guillaume, Shahabuddeen, Weeramantry, Koroma, Higgins.
According to Article 55 of the ICJ Statute, in the event of a tie in the number of votes by the World Court Judges, it is for the President of the Court to cast the deciding vote. For this reason, President Bedjaoui’s separate Declaration appended to the Opinion bears special importance for the interpretation of this element of the dispositif. In President Bedjaoui’s opinion, Paragraph 105(2)(E) of the Advisory Opinion’s dispositif must not “in any way be interpreted as leaving the way open to the recognition of the lawfulness of the threat or use of nuclear weapons”. See Declaration of President Bedjaoui, at para. In this regard, President Bedjaoui drew attention to the fact that in Paragraph 79 of the Advisory Opinion, the Court has already held that the fundamental rules of international humanitarian law (i.e., the Hague Conventions and the Geneva Conventions) “…constitute intransgressible principles of international customary law”. In other words, since these principles are “intransgressible,” to use the precise word of the World, Court, then they can never be violated, even in extreme circumstances, when the very survival of the state is at stake. See Declaration of President Bedjaoui, at para. 21. The Importance of Paragraph 104
Likewise, in interpreting this element of the dispositif, it is crucial to call to mind the text of Paragraph 104 of the Advisory Opinion, which immediately precedes the entirety of the dispositif found in Paragraph 105:
104. At the end of the present Opinion, the Court emphasizes that its reply to the question put to it by the General Assembly rests on the totality of the legal grounds set forth by the Court above (paragraphs 20 to 103), each of which is to be read in the light of the others. Some of these grounds are not such as to form the object of formal conclusions in the final paragraph of the Opinion; they nevertheless retain, in the view of the Court, all their importance.
In other words, the elements of the dispositif set forth in Paragraph 105(2)(E) must be read and interpreted by reference to Paragraphs 20 to 103 of the Advisory Opinion, which have already been extensively analyzed above. Therefore, it would be an incorrect interpretation of the Advisory Opinion to focus simply upon Paragraph 105(2)(E) of the dispositif Rather, by means of Paragraph 104 the World Court makes it clear that the dispositif, including Paragraph 105(2)(E), does not mean to take back or call into question any of its analysis set forth in Paragraphs 20 to 103. Paragraphs 20 to 103 “retain, in the view of the Court, all their importance” despite the non-pronouncement found in Paragraph 105(2)(E) of the Advisory Opinion. Interpreting the First Paragraph of Paragraph 105(2)(E)
Quite obviously, there should not be too much problem with the first paragraph of Paragraph 105(2)(E):
It follows from the above-mentioned requirements that 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;
Notice that the World Court expressly found that both “the threat or use of nuclear weapons would generally be contrary to the rules of international law…” (Emphasis added.) In other words, nuclear deterrence itself “would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law…” Here I might add that since nuclear deterrence violates the laws of war and international humanitarian law, nuclear deterrence is criminal. Likewise, in this regard, Judge Shi Jiuyong (from China, a nuclear weapons state) points out in his Declaration that nuclear deterrence has “no legal significance”. Similarly, on page 2 of his Declaration Judge Ferrari Bravo (from Italy, allied with three nuclear weapons states in NATO) states that nuclear deterrence has no juridical value, and observes: “On pourrait arriver à dire que l’on est en présence d’un antidroit si on pense aux effets qu’elle a eus sur la Charte des Nations Unies“. In other words, nuclear deterrence is “anti-law”, that is the very negation of international law and especially of the United Nations Charter. In a similar vein, Judge Fleischhauer (from Germany, allied with three nuclear weapons states in NATO) states in Paragraph 2 of his Separate Opinion: “The nuclear weapon is, in many ways, the negation of the humanitarian considerations underlying the law applicable in armed conflict and the principle of neutrality”. President Bedjaoui made a similar observation in Paragraph 20 of his Declaration: “…Nuclear weapons, the ultimate evil, destabilize humanitarian law which is the law of the lesser evil. The existence of nuclear weapons is therefore a challenge to the very existence of humanitarian law. …Nuclear war and humanitarian law seem by con-sequence to be two antitheses which exclude each other radically, the existence of the one necessarily supposes the inexistence of the other“. (Emphasis in the original.) Simply put, nuclear weapons are to international law what the so-called Anti-Christ is to the Christian religion. Interpreting the Second Paragraph of Paragraph l05(2)(E)of the Advisory Opinion
The real problem with Paragraph 105(2)(E) of the Advisory Opinion comes from the proper interpretation to be accorded its second paragraph:
However, 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 he lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake;
In her Dissenting Opinion at Paragraph 29, Judge Higgins (from the United Kingdom, a nuclear weapons state) criticizes the second paragraph of Paragraph 105(2)(E)in the following language:
29. …Through this formula of non-pronouncement the Court necessarily leaves open the possibility that a use of nuclear weapons contrary to humanitarian law might nonetheless be lawful. This goes beyond anything that was claimed by the nuclear weapon States appearing before the court, who fully accepted that any lawful threat or use of nuclear weapons would have to comply with both the jus ad bellum and jus in bello (see para. 86).
Judge Higgins is certainly correct to point out that the nuclear weapons states are still bound to adhere to their position on this matter that they formally articulated during the course of the World Court proceedings. It has been the longstanding position of the nuclear weapons states that any threat or use of nuclear weapons must comply with both the United Nations Charter (the jus ad bellum, or the right to go to war) as well as the laws of war and international humanitarian law (that is, the jus in bello, or the laws of war). The non-pronouncement found in the second paragraph of Paragraph 105(2)(E) of this Advisory Opinion did not and indeed could not alter the validity of those legal obligations which flow directly from both customary and conventional international law. Furthermore, in Paragraph 12 of her Dissenting Opinion Judge Higgins stated most emphatically: “…It is in any event absolutely prohibited to attack civilians, whether by nuclear or other weapons”. According to Judge Higgins, even when considering attacking legitimate military targets, a state must not attack “if the collateral civilian casualties would be disproportionate to the specific military gain from the attack”. See Dissenting Opinion of Judge Higgins, at para. 20. Applying this principle of proportionality to nuclear weapons, Judge Higgins opines: “One is inevitably led to the question of whether, if a target is legitimate and the use of a nuclear weapon is the only way of destroying that target, any need can ever be so necessary as to occasion massive damage upon civilian”. See id.
Finally, in Paragraph 23 of her Dissenting Opinion Judge Higgins enunciates a third principle of international humanitarian law with respect to the threat and use of nuclear weapons: “Very important also in the present context is the requirement of humanitarian law that weapons may not be used which are incapable of discriminating between civilian and military targets”. Once again, it is extremely difficult to conceive of any circumstances surrounding the current plans for the threat and use of nuclear weapons by the world’s nuclear weapons states that would not violate any one, or more, or all three of these fundamental principles of international humanitarian law that were articulated by Judge Higgins in her Dissenting Opinion The Dissenters to Paragraph 105(2)(E)
Of the seven World Court Judges registering dissenting votes to Paragraph 105(2)(E) of the dispositif of the Advisory Opinion, Judge Weeramantry and Judge Koroma dissented because it did not, in their Dissenting Opinions, go far enough to expressly condemn the threat and use of nuclear weapons in all circumstances. The same can be said for Judge Shahabuddeen in his Dissenting Opinion. The grounds for Judge Oda’s Dissenting Opinion were that he did not believe the World Court should have responded to the General Assembly’s Request for this Advisory Opinion in the first place. Therefore, of the seven dissenters to Paragraph 105(2)(E), only Judge Schwebel (from the United States), Judge Higgins (from the United Kingdom) and Judge Guillaume (from France) had any substantive problem with its general condemnation of the threat and use of nuclear weapons. Notice that these three dissenters were all from the three nuclear weapons states that are allied with each other by means of the NATO Pact. Thus, it is not surprising that these three Judges voted on Paragraph 105(2)(E) in a manner that would not be inconsistent with the fact that their respective states of nationality possess nuclear weapons. In the practice of the International Court of Justice and its predecessor, the Permanent Court of International Justice, there has always been a high degree of correlation between a Judge’s vote and the position of his or her state of nationality despite the aunted independence of the World Court from outside political pressures. By comparison, Judge Vereschetin from Russia and Judge Shi from China did not dissent from Paragraph 105(2)(E) despite the fact that their respective states of nationality were indeed nuclear weapons states. Conclusion
It is obvious from reading the World Court’s Advisory Opinion that any currently contemplated threat or use of nuclear weapons by the United States government is illegal under international humanitarian law, and therefore criminal. Hence, there is no need to deal with the question of the legality or illegality of nuclear weapons and nuclear deterrence as an abstract proposition. Rather, the reader can simply apply the language of the Advisory Opinion, together with the analysis of the Opinion set forth above, to any specific nuclear weapons system and the related strategy for its intended use: e.g., ELF/Trident 2/Delta 5/NAVSTAR. Once you consider the mission and the capabilities of the specific nuclear weapons system, its illegality and criminality should become clear. A specific nuclear weapons system would typically stand in gross violation of the United Nations Charter; the Nuremberg Charter, Judgment, and Principles; the Genocide Convention and its Implementation Act; the Hague Regulations; the Geneva Conventions and Protocol; the Hague Neutrality Conventions; U.S. Army Field Manual 27-10 (1956); the 1996 World Court Advisory Opinion; as well as basic principles of international humanitarian, the laws of war, and international environmental law. Consequently, here in the United States every person has the right under several treaties – “the supreme law of the Land” -under Article VI of the U.S. Constitution, customary international law, and the common law of the United States and the States of the Union to take whatever necessary and reasonable steps he or she can in order to terminate such ongoing criminal activity under well recognized principles of international law that have been fully subscribed to by the United States government itself. Furthermore, every person around the world possesses the basic human right to be free from this criminal practice of nuclear deterrence and its concomitant specter of nuclear extinction as currently inflicted upon humanity by the world’s nuclear weapons states. All human beings possess the basic human right under international law to engage in non-violent civil resistance activities designed for the express purpose of preventing, impeding or terminating the ongoing commission of these international crimes by the concerned government officials in the world’s nuclear weapons states. Every citizen of the world community has both the right and the duty to oppose the existence of nuclear deterrence and nuclear weapons systems by whatever non-violent means are at his or her disposal. Both the future and the past of our species is at stake. The time for preventive action is now! Francis A. Boyle. Professor of International Law,
Law Building, Illinois 61820.
©COPYRIGHT 1996 BY FRANCIS A. BOYLE. ALL RIGHTS RESERVED.
REFERENCES
1. Boyle, Francis Anthony. 1989. The Future of International Law and American Foreign Policy 368,469-77 (hereinafter cited as Boyle).
2. See, 1992. The World Court Project on Nuclear Weapons and International Law, Aletheia Press.
3. The International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, entered into force, Mar.23, 1976, for the U.S. Sept.8, 1992.
4. Restatement (Third) of Foreign Relations Law of the United States, pt. VII 149-50, 1987; J. Paust, International Law as Law of the United States 199-200, 228, n.182, 245-46 n.372, 1966, (hereinafter cited as Paust).
5. The Paquete Habana, 175 U.S. 677,700(1900); PAUST, supra, at 1-9.
6. The Convention on the Prevention and Punishment of the Crime of Genocide, 78 U.N.T.S. 277, entered into force Jan.12, 1951, for the U.S. Feb.23, 1989.
7. Who’s Who in America, 3748. (Marquis Who’s Who ed., 50th ed. 1995).
8. Judith, Miller. Reagan Shelving Treaty to Review Law on Captives, N.Y. Times, Feb.16, 1987, at A1; Message from the President of the United States Transmitting Protocol II Additional to the Geneva Conventions of August 12,1949, and Relating to the Protection of Victims of International Armed Conflicts. Concluded al Geneva on June 10, 1977, S. Treaty Doc. No.2, 100th Cong. 1st Sess 111-V (1987), reprinted in 26 I.L.M. 561 (1987). See also Boyle, supra, at 79-134.
9. See, e.g., Michio Kako & Daniel Axelrod, To Win a Nuclear War (1987). See also Robert C. Aldridge, Nuclear Empire (1989). See generally Michael Parenti, Against Empire (1995).
10. Convention Concerning the Laws and Customs of War on Land (Hague IV), Oct. 18, 1907,36 Stat. 2277, T.S. No.539, 1 Bevans 631, reprinted in 2 Am.J.Int’l. L 90(1908).
11. See, eg., The Lessons of Hiroshima and Nagasaki in Boyle supra at 317-68.
12. Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), Aug.12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287; Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention), Aug.12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Convention for the Amelioration of the Condition of Wounded Sick, and Shipwrecked Members of Armed Forces at Sea (Second Geneva Convention), Aug.12, 1949, 6 U.S.T. 3217,75 U.N.T.S. 85; Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention), Aug. 12,1949,6 U.S.T. 34,75 U.N.T.S. 31.
13. See Francis A. Boyle, The Relevance of International Law to the “Paradox” of Nuclear Deterrence, 80 Nw. U.L Rev. 1407(1986).
14. Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land (Hague V), October 18, 1907, 36 Stat 2310, T.S. No.540, 1 Bevans 654.
15. Concerning the Rights and Duties of Neutral Powers in Naval War (Hague XIII), October 18, 1907,36 Stat 2415, T.S. No.545, 1 Bevans 723.
16. Serge Schmemann, Gorbachev Offers To Scrap A-Arms Within 15 Years, N.Y. Times, Jan.16, 1986, at A1. See Richard Falk, Explorations at the Edge of Time 17-19 (1992); Boyle, supra, at 401.