The Criminality of Nuclear Deterrence
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Francis A. Boyle
Professor of International Law
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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,
the International Peace Bureau, the Lawyers Committee on Nuclear Policy, the International Association of Lawyers
Against Nuclear Arms (IALANA), and others. This suggestion was formally taken up and consolidated into a Joint
Project launched 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. 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?" (Emphasis added.)
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 explain how this World Court Advisory Opinion
on nuclear weapons can be used by lawyers in order to defend anti-nuclear resisters from criminal prosecution on
the basis of international law. Furthermore, this analysis has also been written for the express purpose of providing
some guidance to pro se anti-nuclear resisters who seek to defend themselves from criminal prosecution by using
international law without the assistance of an attorney.
For these reasons, I have decided to quote verbatim and in extenso key portions of the World Court's Advisory
Opinion on the legality of the threat or use of nuclear weapons here. I am not doing this for the simplistic purpose of
filling up space and thus cutting down trees. Rather, I want anti-nuclear resisters to be able to read the exact
language of the World Court's Advisory Opinion itself. That way, at trial the anti-nuclear resister can truthfully testify
that he or she had read the relevant provisions of the Advisory Opinion by the World Court on nuclear weapons, and
then testify as to the contents as well as the meaning of the Advisory Opinion for the nuclear weapons system at
issue. In this fashion, the reading of this analysis can become yet another technique to get the international law on
nuclear weapons admitted into evidence and considered by the jury at the trial of an anti-nuclear resister.
Authority of the World Court's Advisory Opinion.
Before I analyze the substance of the World Court's Advisory Opinion on the Legality of the Threat or Use of Nuclear
Weapons, I believe it would be important here first to discuss the legal authority of this Opinion and its bearing upon
a criminal proceeding in a federal or a state court in the United States. The same principles of analysis would also
apply to any judicial or administrative proceeding of a quasi-criminal nature (e.g., deportation proceedings,
sentencing hearings, student disciplinary proceedings, etc.). Basically, these strategies have been used
successfully in a variety of criminal, quasi-criminal, and administrative proceedings around the United States and
abroad during the past decade. The same principles of analysis can also be applied--and have been successfully
applied--pari passu by lawyers and anti-nuclear resisters in criminal proceedings in other states around the world.
For the purpose of convenience, I will hereinafter refer to the above-mentioned Opinion as "the Opinion" or "the
Advisory Opinion" or "the World Court's Advisory Opinion" without further identification.
The United Nations Charter is a "Treaty" that has received the advice and consent of the United States Senate.
Therefore it is "the supreme Law of the Land" under Article VI of the United States Constitution, the so-called
Supremacy Clause:
Article VI
.... This Constitution and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made,
or which
shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State
shall
be bound thereby, anything in the Constitution or Laws of any State to the Contrary notwithstanding.....
In other words, every judge, jury, and government official in the United States of America is constitutionally obligated
to pay attention to the provisions of the United Nations Charter.
Congress has authorized the United States to participate in the United Nations Organization by means of adopting
the United Nations Participation Act of 1945, as currently amended, as well as by means of Congress's supposed
appropriations toward that end. Hence the United Nations Charter constitutes a "Treaty" that, in addition, has also
been expressly authorized and continually implemented by the "Laws of the United States" within the meaning of
those terms as used by Article VI of the United States Constitution. On both accounts, therefore, the United Nations
Charter is "the supreme Law of the Land."
Article 7 of the U.N. Charter established the International Court of Justice as one of the six "principal organs of the
United Nations." According to Article 92 of the U.N. Charter, the International Court of Justice "shall be the principal
judicial organ of the United Nations." The Statute of the International Court of Justice (ICJ) has been annexed to the
United Nations Charter. According to Article 92 of the U.N. Charter, the ICJ Statute "forms an integral part of the
present Charter."
In particular, Article 92 of the U.N. Charter expressly provides as follows:
Chapter XIV
THE INTERNATIONAL COURT OF JUSTICE
Article 92
The International Court of Justice shall be the principal judicial organ of the United Nations. It shall function in
accordance with the
annexed Statute, which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of
the
present Charter.
Since the ICJ Statute is "an integral part of" the United Nations Charter, the ICJ Statute is an integral part of a
"Treaty" that has received the advice and consent of the United States Senate, and has also been implemented by
an Act passed by both Houses of the U.S. Congress. For both of these reasons, the ICJ Statute is therefore "the
supreme Law of the Land" under Article VI of the United States Constitution.
U.N. Charter Article 93(1) makes this point very clear in the following language: "All members of the United Nations
are ipso facto parties to the Statute of the International Court of Justice." Once again, therefore, the Statute of the
International Court of Justice is a "Treaty" and therefore "the supreme Law of the Land" under Article VI of the
United States Constitution.
Thus, the International Court of Justice is not a "foreign court." Rather the World Court has been duly authorized
and established pursuant to the Constitution, a "Treaty," and the "Laws of the United States." For this reason every
judge, jury and government official subject to the jurisdiction of the United States of America is obligated to pay
attention to what the International Court of Justice says.
Article 65(1) of the ICJ Statute empowers the World Court to render an Advisory Opinion in the following words:
"The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by
or in accordance with the Charter of the United Nations to make such a request." Article 96(1) of the United Nations
Charter empowers the U.N. General Assembly to request an Advisory Opinion from the International Court of
Justice in the following language: "The General Assembly or the Security Council may request the International
Court of Justice to give an advisory opinion on any legal question."
Therefore, in rendering its Advisory Opinion on The Legality of the Threat or Use of Nuclear Weapons, the
International Court of Justice was discharging its solemn obligations under the terms of the United Nations Charter
and the Statute of the International Court of Justice, which are both "the supreme Law of the Land" under Article VI
of the United States Constitution. For this reason, every judge, jury and government official in the United States is
obligated to take into account what the World Court said in this Advisory Opinion.
Furthermore, since the United Nations Charter established the International Court of Justice as "the principal judicial
organ of the United Nations," the World Court is the chief organ for the interpretation of international law for the
entirety of the United Nations System and thus for all states of the world community itself, including therein the
United States of America. Hence, the World Court's Advisory Opinion sets forth an authoritative declaration of what
are the requirements of international law with respect to the threat and use of nuclear weapons. In other words, the
World Court's Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons constitutes the reigning
customary international law on nuclear weapons.
In this regard, customary international law is part of the common law of the United States of America as well as the
common law of all States of the Union. For this reason as well, therefore, every judge, jury, and government official
in the United States is bound to pay attention to the World Court's Advisory Opinion. The World Court's Advisory
Opinion sets forth what is the customary international law, and thus the federal common law and the state common
law, with respect to the threat and use of nuclear weapons.
At a minimum, therefore, the World Court's Advisory Opinion should be admitted into evidence at the trial of any
anti-nuclear resister so that it can be considered by the jury or finder of fact. In any event, once an anti-nuclear
resister reads the exact language taken from the World Court's Advisory Opinion on nuclear weapons set forth
below, he or she should certainly have the right to explain to a jury at a criminal trial (1) that they had read the
relevant portions of the Opinion; and (2) what the relevant portions of the Opinion said; and (3) what the Advisory
Opinion meant for the particular nuclear weapons system at issue. Such testimony would also set the stage for
calling an expert witness on nuclear weapons and international law in order to corroborate the anti-nuclear resister's
reasonable and good faith beliefs as to the requirements of international law with respect to the threat and use of
nuclear weapons. Once again, in this fashion the anti-nuclear resister can pave the way for such international law
evidence to be admitted at trial and considered by the jury.
Summary of the World Court's Advisory Opinion.
Before I begin my extended analysis of the relevant portions of the Advisory Opinion, I thought it would be helpful to
present a brief summary of the key points of the holding by the World Court taken from the Dissenting Opinions by
Judge Weeramantry and Judge Koroma, respectively. This should provide the reader with a pretty good idea of what
the Court actually held as well as its significance. Also, since Judge Koroma and Judge Weeramantry wrote
Dissenting Opinions that were appended to the Advisory Opinion by the Court, these excerpts provide an
authoritative interpretation of the meaning of the Advisory Opinion itself.
Prior to joining the World Court, Judge Christopher George Weeramantry from Sri Lanka was a member of IALANA,
had written quite extensively on nuclear weapons and international law, and was already generally considered to be
one of the world's leading experts on that subject. Let me quote from the following preliminary observations on the
Advisory Opinion made by Judge Weeramantry in his Dissenting Opinion appended thereto:
.... (b) The positive aspects of the Court's Opinion
This Opinion represents the first decision of this Court, and indeed of any international tribunal, that clearly formulates
limitations on
nuclear weapons in terms of the United Nations Charter. It is the first decision which expressly addresses the contradiction
between
nuclear weapons and the laws of armed conflict and international humanitarian law. It is the first such decision which
expresses the
view that the use of nuclear weapons is hemmed in and limited by a variety of treaty obligations.
In the environmental field, it is the first Opinion which expressly embodies, in the context of nuclear weapons, a
principle of
"prohibition of methods of warfare which not only are intended, but may also be expected to cause" widespread, long-term and
severe
environmental damage, and "the prohibition of attacks against the natural environment by way of reprisals" (para. 31).
In the field of nuclear disarmament, it also reminds all nations of their obligation to bring these negotiations to their
conclusion in all their aspects, thereby ending the continuance of this threat to the integrity of international law.
Once these propositions are established, one needs only to examine the effects of the use of nuclear weapons to
conclude that there is no possibility whatsoever of a use or threat of use that does not offend these principles. This
Opinion examines at some length the numerous unique qualities of the nuclear weapon which stand in flagrant
contradiction of the basic values underlying the United Nations Charter, international law, and international
humanitarian law. In the light of that information, it becomes demonstrably impossible for the weapon to comply with
the basic postulates laid down by the Court, thus rendering them illegal in terms of the unanimous finding of the
Court.
In particular, I would mention the requirement, in Article 2(4) of the Charter, of compliance with the Purposes of the
United Nations. Those Purposes involve respect for human rights, and the dignity and worth of the human person.
They also involve friendly relations among nations, and good neighbourliness (see Art. 1 (Purposes and Principles)
read with the Preamble). The linkage of legality with compliance with these principles has now been judicially
established. Weapons of warfare which can kill a million or a billion human beings (according to the estimates
placed before the Court) show scant regard for the dignity and worth of the human person, or for the principle of
good neighbourliness. They stand condemned upon the principles laid down by the Court.
Even though I do not agree with the entirety of the Court's Opinion, strong indicators of illegality necessarily flow
from the unanimous parts of that Opinion. Further details of the total incompatibility of the weapons with the
principles laid down by the Court appear in the body of this Opinion.
It may be that further clarification will be possible in the future.
See Dissenting Opinion of Judge Weeramantry, at pp. 1-2.
These comments by Judge Weeramantry constitute an authoritative interpretation of the meaning and significance
of the Advisory Opinion itself.
To the same effect are the following portions of Judge Koroma's Dissenting Opinion from pages 6 to 8, 11, and 17:
The Court also identified the cardinal principles constituting the fabric of international humanitarian law, the first of
which is aimed at the protection of the civilian population and civilian objects and establishes the distinction between
combatants and non-combatants. According to those principles, States are obliged not to make civilians the object of
attack and must consequently not use weapons that are incapable of distinguishing between civilian and military
targets. Secondly, it is prohibited to cause unnecessary suffering to combatants and, accordingly, it is prohibited to
use weapons causing them needless harm or that uselessly aggravate their suffering. In this regard, the Court noted
that States do not have unlimited freedom of choice in the weapons they can use.
The Court also considered applicable to the matter the Martens Clause, first enunciated in the Hague Convention of
1899 with respect to the laws and customs of war on land, a modern version of which has been codified in Article 1,
paragraph 2, of Additional Protocol I of 1977, and 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."
The Court noted that the principles embodied in the Clause are principles and rules of humanitarian law and,
together with the principle of neutrality, apply to nuclear weapons.
It was in the light of the foregoing that the Court recognized that humanitarian law does prohibit the use of certain
types of weapons either because of their indiscriminate effect on combatants and civilians or because of the
unnecessary and superfluous harm caused to combatants. The Court accordingly held that the principles and rules
of international humanitarian law are obligatory and binding on all States as they also constitute intransgressible
principles of customary international law.
With regard to the applicability of Additional Protocol I of 1977 to nuclear weapons, the Court recalled that even if not
all States are parties to the Protocol, they are nevertheless bound by those rules in the Protocol which, when
adopted, constituted an expression of the pre-existing customary law, such as, in particular, the Martens Clause,
which is enshrined in Article I of the Protocol.
The Court observed that the fact that certain types of weapons were not specifically mentioned in the Convention
does not permit the drawing of any legal conclusions relating to the substantive issues raised by the use of such
weapons. It took the view that there can be no doubt that the principles and rules of humanitarian law, which are
enshrined in the Geneva Conventions of 1949 and the Additional Protocols of 1977, are applicable to nuclear
weapons. Even when it observed that the Conferences of 1949 and 1977 did not specifically address the question of
nuclear weapons, the Court stated that it cannot be concluded from this that the established principles and rules of
humanitarian law applicable in armed conflict do not apply to nuclear weapons, as such a conclusion would be
incompatible with the intrinsically humanitarian character of the legal principles in question which permeate the entire
law of armed conflict and apply to all forms of warfare and to all kinds of weapons.
The Court agreed with the submission that:
"In general, international humanitarian law bears on the threat or use of nuclear weapons as it does of other
weapons. International humanitarian law has evolved to meet contemporary circumstances, and is not limited in its
application to weaponry of an earlier time. The fundamental principles of this law endure: to mitigate and
circumscribe the cruelty of war for humanitarian reasons." (New Zealand, Written Statement, p. 15.)
The Court also observed that 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, had indicated that the
principles of humanitarian law do not apply to nuclear weapons, noting that, for instance, the Russian Federation
had recognized that "restrictions set by the rules applicable to armed conflicts in respect of means and methods of
warfare definitely also extend to nuclear weapons"; that for the United States, "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"; while for the United Kingdom, "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 principles of the jus in bello".
With regard to the elements of fact advanced in its findings, the Court noted the definitions of nuclear weapons
contained in various treaties and instruments, including those according to which nuclear explosions are "capable of
causing massive destruction, generalized damage or massive poisoning" (Paris Accords of 1954), or the preamble
of the Tlatelolco Treaty of 1967 which described nuclear weapons "whose terrible effects are suffered,
indiscriminately and inexorably, by military forces and civilian population alike, [and which] constitute through the
persistence of the radioactivity they release, an attack on the integrity of the human species and ultimately may even
render the whole earth uninhabitable". It also took note of the fact that nuclear weapons release not only immense
quantities of heat and energy, but also powerful and prolonged radiation; that the first two causes of damage are
vastly more powerful than such causes of damage in other weapons of mass destruction, and that the phenomenon
of radiation is said to be peculiar to nuclear weapons. These characteristics, the Court concluded, render nuclear
weapons potentially catastrophic; their destructive power cannot be contained in either space or time, and they have
the potential to destroy all civilization and the entire ecosystem of the planet.
With regard to the elements of fact, the Court noted that the radiation released by a nuclear explosion would affect
health, agriculture, natural resources and demography over a wide area and that such weapons would be a serious
danger to future generations. It further noted that ionizing radiation has the potential to damage the future
environment, food and marine ecosystems, and to cause genetic defects and illness in future generations.
[See Dissenting Opinion of Judge Koroma, at pp. 6-8.]
In the light of the foregoing the Court, as well as taking cognizance of the unique characteristics of nuclear weapons when
used,
reached the following conclusions: that nuclear weapons have a destructive capacity unmatched by any conventional weapon;
that a single nuclear weapon has the capacity to kill thousands if not millions of human beings; that such weapons cause
unnecessary suffering and superfluous injury to combatants and non-combatants alike; and that they are unable to distinguish
between civilians and combatants. When recourse is had to such weapons, it can cause damage to generations unborn and
produce widespread and long-term effects on the environment, particularly in respect of resources necessary for human
survival. In this connection, it should be noted that the radioactive effects of such weapons are not only similar to the
effects
produced by the use of poison gas which would be in violation of the 1925 Geneva Gas Protocol, but are considered even more
harmful
[See Dissenting Opinion of Judge Koroma, at p. 11.]
Be that as it may, the Advisory Opinion cannot be considered as entirely without legal merit or significance. The positive
findings it contains should be regarded as a step forward in the historic process of imposing legal restraints in armed
conflicts.
Some of those restraints as they relate to nuclear weapons have now found expression in the opinion of the Court. For the
first
time in its history, indeed in the history of any tribunal of similar standing, the Court has declared and confirmed that
nuclear
weapons are subject to international law; 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 fails to meet the requirements of Article 51 is unlawful. The Court has
also held that any threat or use of nuclear weapons that is incompatible with the requirements of international law applicable
in
armed conflict, particularly those of the principles of humanitarian law as well as specific obligations under the treaties or
other
undertakings, dealing expressly with nuclear weapons, would be unlawful. Inferentially, it is because recourse to nuclear
weapons could not meet the aforementioned requirements that the Court has found "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
the rules of humanitarian law". This finding, though qualified, should be regarded as of normative importance, when taken
together with the other conclusions reached by the Court. Among other things, it is a rejection of the argument that since
humanitarian law pre-dated the invention of nuclear weapons, it could not therefore be applicable to those weapons. On the
contrary, the Court has found that given the intrinsic character of the established principles and rules of humanitarian law,
it
does apply to them.
See Dissenting Opinion of Judge Koroma, at p. 17.
Of course, I plan to offer my own interpretation of the meaning and significance of the World Court's Advisory
Opinion on the threat and use of nuclear weapons below. But the above interpretations rendered by two of the
dissenting World Court Judges stand on a different and more authoritative level. Indeed, since Judge Weeramantry
was already generally considered to be one of the world's leading experts on nuclear weapons and international law
before he joined the World Court, the reader would be well advised to read the entire text of his Dissenting Opinion
that was appended to the Advisory Opinion.
The above-quoted excerpts taken from the Dissenting Opinions by Judge Weeramantry and Judge Koroma should
also 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 found 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, this is the
basic question about nuclear weapons that the World Court set out to answer during the remainder of the Opinion:
determining their legality or illegality, not their criminality.
Nevertheless, in regard to this latter point, 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:
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 basic conclusions (1) that both the threat and use of nuclear
weapons are criminal; and (2) that nuclear deterrence itself is criminal.
Moreover, Paragraph 498 of Field Manual 27-10 (1956) makes it clear that any person, whether a member of the
armed forces or a civilian, who commits an act which constitutes a crime under international law is responsible
therefore and liable to punishment. Such offenses in connection with war comprise crimes against peace, crimes
against humanity, and war crimes. Here the Field Manual basically incorporated the triumvirate of international
crimes recognized by the Nuremberg Charter, the Nuremberg Judgment, and the Nuremberg Principles.
Furthermore, Paragraph 500 of Field Manual 27-10 (1956) explicitly recognizes the existence of inchoate crimes
with respect to such grievous international crimes. It provides that conspiracy, direct incitement, and attempts to
commit, as well as complicity in the commission of crimes against peace, crimes against humanity, and war crimes
are crimes in their own right and thus punishable. Certainly, nuclear deterrence as currently practiced by all the
world's nuclear weapons states constitutes a conspiracy to commit Nuremberg crimes against peace, Nuremberg
crimes against humanity, and Nuremberg war crimes.
Paragraph 501 of Field Manual 27-10 (1956) recognizes the existence of and standard for vicarious responsibility on
the part of commanders for acts of their subordinates. Any military commander or civilian official is responsible for
the commission of international crimes "if he has actual knowledge, or should have knowledge, through reports
received by him or through other means, that troops or other persons subject to his control are about to commit or
have committed a war crime and he fails to take the necessary and reasonable steps to insure compliance with the
law of war or to punish violators thereof." (Emphasis added.) Here Field
Manual 27-10 (1956) essentially incorporated the test of vicarious criminal responsibility enunciated by the United
States Supreme Court in its seminal decision Application of Yamashita, 327 U.S. 1 (1946).
Field Manual Paragraph 509 denies an alleged war criminal the defense of superior orders, whether miliary or civil,
unless the individual did not know and could not reasonably have been expected to know that the act ordered was
unlawful, though superior orders may be considered in mitigation of punishment. Paragraph 510 provides that the
fact that a person who committed an act which constitutes an international crime acted as head of state or as a
responsible government official does not relieve him from responsibility for his act. On these as in other matters, the
Field Manual once again generally incorporated the terms of the Nuremberg Charter, the Nuremberg Judgment, and
the Nuremberg Principles.
Hence, according to the U.S. Army Field Manual itself, all U.S. civilian government officials and military officers who
exercise any degree of "control" over U.S. nuclear forces, and know or should know that such forces are designed
for the purpose of committing Nuremberg crimes against peace, or Nuremberg crimes against humanity, or
Nuremberg war crimes, and have failed to do anything about it, are themselves responsible for the commission of
inchoate Nuremberg crimes. In the United States this category of officialdom would typically include the following
individuals and their immediate subordinates, at a minimum: the President and Vice-President; the Secretary of
Defense; Members of the Joint Chiefs of Staff; the Secretary of State; the Director of Central Intelligence; the
National Security Advisor; other Members of the National Security Council, etc. The same principles of law would
also apply to the equivalent civilian officials and military officers in the other nuclear weapons states. Certainly every
citizen of the world community has both the right and the duty under international law to prevent the commission of
inchoate Nuremberg crimes by these operative government officials--both civilian and military--in the nuclear
weapons states.
The Importance of Paragraph 104 of the Advisory Opinion.
At the outset of my commentary upon the World Court's Advisory Opinion on nuclear weapons, I thought it would be
worthwhile to reproduce here the Court's own statement as to how the text of the Opinion itself must be interpreted,
and its relationship to what is called the "dispositif," which is the ultimate holding of the Court found in Paragraph
105 of the Opinion. I will return to Paragraph 105 later on. For the time being, let me quote Paragraph 104 of the
Opinion here:
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 dispositif set forth in Paragraph 105 of the Advisory Opinion can only be read and interpreted by
reference to Paragraphs 20 to 103 of the Advisory Opinion. Therefore, it would be an incorrect interpretation of the
Opinion simply to focus upon the dispositif found in Paragraph 105. Rather, the entirety of the Advisory
Opinion--including the dispositif found in Paragraph 105--must be considered together.
Burden of Proof .
Starting with the Paragraph 20 of the Advisory Opinion mentioned above in Paragraph 104, the first substantive
issue dealt with by the World Court was the procedural question of the so-called burden of proof with respect to
establishing the legality or the illegality of the threat and use of nuclear weapons. Simply put: Was the burden of
proof upon the nuclear weapons states to establish their legality, or conversely upon the non-nuclear weapons states
to establish their illegality? To make a long story short, the Court brushed aside these intricate questions related to
the burden of proof as "...without particular significance for the disposition of the issues before the Court." (Advisory
Opinion, Paragraph 22.) In this regard, the Court offered the following factual observation:
22. The Court notes that the nuclear-weapon States appearing before it either accepted, or did not dispute, that their
independence to act was indeed restricted by the principles and rules of international law, more particularly
humanitarian law (see below, paragraph 86), as did the other States which took part in the proceedings. ....
Thus, all of the states taking part in the World Court proceedings on nuclear weapons, including and especially the
nuclear weapons states themselves, either explicitly or else implicitly operated upon the basic assumption that the
threat and use of nuclear weapons was subject to and restricted by the rules of international law. No state dared to
argue that international law simply did not apply to the threat and use of nuclear weapons. In other words, no state,
and especially no nuclear weapons state, embraced legal nihilism when it comes to the threat and use of nuclear
weapons.
Clearly, that represents a major concession by the nuclear weapons states, though it is consistent with their
historical position maintaining the legality of nuclear weapons. Generally put, the nuclear weapons states have taken
the position that although there is no formal prohibition derived from treaty or customary international law on the
threat and use of "nuclear weapons" as such by that name, nevertheless the threat and use of nuclear weapons still
remain subject to the rules of international law, and in particular to the laws of war and international humanitarian
law. Hence, in Paragraph 23 of the Opinion the Court states that it must proceed to analyze "the great corpus of
international law norms available to it."
The Right to Life.
In Paragraph 25 of the Opinion, the World Court holds 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 is now a contracting party:
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.
I might add to the Court's analysis that Article 6 was 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. Hence the United States
government is bound by UDHR Article 3, which in turn is part of U.S. federal common law and the common law of
the States of Union.
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 Court, almost all uses of nuclear weapons would
violate some provision of the laws of war, the conclusion becomes inexorable that almost all conceivable uses of
nuclear weapons would violate Covenant Article 6 and, I would add, UDHR Article 3.
Furthermore, I would also 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, to which the United States
is now a party: "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 by a treaty to which the
United States government is a party. In other words, the threat to use nuclear weapons, including therein 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 state common law.
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
is now a contracting party. 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 be 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 could 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 attempted to codify the Nuremberg "crime against humanity" into
positive treaty form.
Even the fairly conservative Judge Stephen Schwebel from the United States, who was then Vice President and
later 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 there. 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 inchoate crimes that are still taking place today. Certainly, an
anti-nuclear resister has the right under a treaty, "the supreme Law of the Land," Article VI of the U.S. Constitution,
customary international law, and the common law of the United States and of the States of the Union to take
whatever necessary and reasonable steps he or she can in order to terminate such ongoing criminal activity.
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. Certainly, an anti-nuclear resister has the right under
international law and United States domestic law to take necessary and reasonable steps in order to terminate an
ongoing criminal conspiracy by U.S. government officials to commit genocide in violation of the Genocide
Convention Implementation Act of 1987 and the Genocide Convention of 1948.
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: "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 general 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 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 formulating
their plans for the threat and use of nuclear weapons, including therein nuclear deterrence. All the nuclear weapons
states stand in breach of this fundamental requirement of customary international 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 and thus criminal.
The United States government signed Geneva Protocol I, but for reasons unrelated to nuclear weapons, the Reagan
administration formally decided not to ratify it. Nevertheless, the Reagan administration simultaneously announced
its willingness to be bound by those provisions of Geneva Protocol I that enunciate basic rules of customary
international law. Certainly, whatever their status might have been in 1977, as of today Article 35(3) and Article 55 of
Geneva Protocol I enunciate basic rules of 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 and general principles of customary international law relating to the environment. Once again, yet another
variant of ongoing criminal activity that any anti-nuclear resister has the right to prevent under international law, the
U.S. Constitution, U.S. federal common law, and state common law.
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. In this regard, the Court also makes the following findings of
fact concerning the use of nuclear weapons with respect to the environment in Paragraph 35 of the Advisory
Opinion:
...These characteristics [i.e., (1) heat, (2) energy, and (3) radiation] render the nuclear weapon potentially
catastrophic. The destructive power of nuclear weapons cannot be contained in either space or time. They have the
potential to destroy all civilization and the entire ecosystem of the planet.
The radiation released by a nuclear explosion would affect health, agriculture, natural resources and demography
over a very wide area. Further, the use of nuclear weapons would be a serious danger to future generations. Ionizing
radiation has the potential to damage the future environment, food and marine ecosystem, and to cause genetic
defects and illness in future generations.
During the course of trying an anti-nuclear resister, any judge in a domestic criminal proceeding should be able to
take judicial notice of these facts as authoritatively determined by the International Court of Justice on the basis of
exhaustive judicial proceedings with the participation of the acknowledged nuclear weapons states.
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 therein 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 of their threat
to use nuclear weapons. For this reason as well, therefore, 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 world's nuclear weapons states to fulfill all of these conditions for the legality of the threat and
use of nuclear weapons. Hence, my 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 therein 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 totally perverse sense of deliberately exploiting,
compounding, and perpetuating these "profound risks" as the very basis of nuclear deterrence. As currently
practiced by today's nuclear weapons states, nuclear deterrence is purposefully based 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 in 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 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 be
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 human beings is
clearly illegal, then the threat of mass extermination is also 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 in conformity with the Charter." But once again, the threat of mass extermination that lies at the
very heart of nuclear deterrence clearly is not 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 threaten to use force that would clearly be illegal if it were to be used. And no state argued to
the contrary despite the opportunity to do so. In essence, the World Court found that the nuclear weapons states are
effectively estopped 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 Weapons.
Paragraph 48 of the Advisory Opinion deals with the question of the legality or illegality of possessing nuclear
weapons in the following language:
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 whereby they can be launched within about a 15 minute timeframe from
when the order to do so is given. Such imminence of the threat to use nuclear weapons is yet another critical
component of the doctrine of strategic nuclear deterrence. Under these imminent and dangerous circumstances, the
possession of nuclear weapons is illegal.
It is the conclusion of the World Court, then, 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 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
victim 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, 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:
1. 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;
2. 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;
3. 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
4. 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 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 imminent 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.
In regard to the defense of anti-nuclear resisters, the next critical passage of the World Court's 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.
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.
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 agravating 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 obj ect 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.
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 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 8 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 deliberately and directly raises the specter of personal criminal responsibility
under the Nuremberg Charter, the Nuremberg Judgment, and I might add the Nuremberg 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.
Nuclear Weapons and International Humanitarian Law.
The 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 apply 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, CR 95/34, 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.
The World Court then turned 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, and Hague Convention No. XIII Respecting the Rights and Duties of Neutral Powers in Naval War of 1907.
The United States government is a contracting party to both Hague Neutrality Conventions. In addition, both of the
Hague Neutrality Conventions of 1907 constitute customary international law on the rules of neutrality in wartime.
No point would be served by reviewing the contents of these two treaties in detail. Suffice it to say here 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
Advisory 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 formulating
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. Once again, this is certainly the type of ongoing inchoate criminal activity that anti-nuclear resisters have
the right to oppose by necessary and proportionate means.
Furthermore, many states such as the United States have enacted domestic implementing legislation that is
purposefully designed to incorporate into their municipal legal systems the customary and conventional international
laws of neutrality on pain of criminal penalty for their violation. Once again, anti-nuclear resisters have the right to
oppose such ongoing inchoate criminal activities by their own government officials acting in gross violation of
customary international law, international treaties, and domestic statutes that were expressly intended to criminalize
such behavior. Papers to that effect have already been drawn up by my friend, former client, Plowshares resister,
convicted felon, fellow graduate of the Harvard Law School, fellow attorney, and co-counsel Katya Komisaruk,
Esquire, of O akland, California--a real merican Hero!
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 these 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 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 seem 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
Originally, the General Assembly had asked the World Court to answer the following question: "Is the threat or use
of nuclear weapons in any circumstances permitted under international law?" (Emphasis added.) The World Court
finally got around to answering this precise question in Paragraph 95 of the Advisory Opinion by employing 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.]
For obvious reasons, the World Court could not possibly have envisioned and considered all the circumstances in
which nuclear weapons might conceivably be used. Consequently, the Court observed in Paragraph 97 of the
Advisory 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 uncertainties surrounding this hypothetical conjecture that had been mentioned in Paragraph
95 of the Advisory Opinion as quoted above.
I will discuss the Court's non-pronouncement mentioned 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 nuclear weapons for any reason. The
Court simply refused to express "...a definitive conclusion as to the legality or illegality of the use of 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 purely hypothetical conjecture. Like any other court in the world today, the
World Court operates on two basic principles, inter alia: Never say never! And: It all depends upon the facts!
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." (Emphasis added.)
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, 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
customary international law as authoritatively determined by the World Court itself in Paragraph 99 of its Advisory
Opinion.
The Dispositif.
The Court then issued its formal rulings in Paragraph 105 of the Advisory Opinion, the so-called "dispositif." I will not
bother to repeat or analyze all of its elements here. But for the purposes of defending anti-nuclear resisters the
critical provisions of the dispositif will be discussed below. For the sake of convenience I will first examine these
"unanimous" rulings adopted by the International Court of Justice in the dispositif of this Advisory Opinion.
Unanimous Ruling on the U.N. Charter
In Paragraph 105(2)(C) of the Opinion the 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 fails to meet all the
requirements of Article 51, is unlawful;"
In his Dissenting Opinion at page 3, Judge Weeramantry interpreted Paragraph 105(2)(C) of the Advisory Opinion
as follows:
iv) Paragraph 2(C) - (Unanimous)
The positive features of this paragraph have already been noted. The Court, in this paragraph, has unanimously
endorsed Charter-based pre-conditions to the legality of nuclear weapons, which are diametrically opposed to the
results of the use of the weapon. I thus read paragraph 1(C) [sic: must read "2(C)" because there is no 1(C)] of the
dispositif as rendering the use of the nuclear weapon illegal without regard [sic: add "to"] the circumstances in which
the weapon is used - whether in aggression or in self defence, whether internationally or internally, whether by
individual decision or in concert with other nations. A unanimous endorsement of this principle by all the judges of
this Court takes the principle of illegality of use of nuclear weapons a long way forward from the stage when there
was no prior judicial consideration of legality of nuclear weapons by any international tribunal.
Those contending that the use of nuclear weapons was within the law argued strongly that what is not expressly
prohibited to a state is permitted. On this basis, the use of the nuclear weapon was said to be a matter on which the
state's freedom was not limited. I see the limitations laid down in paragraph 1(C) [sic: must read "2(C)" because
there is no 1(C)] as laying that argument to rest.
In this passage, Judge Weeramantry has provided us with an authoritative interpretation of Paragraph 105(2)(C) not
only because he is a sitting Judge of the World Court but also because he is one of the world's leading experts on
nuclear weapons and international law.
The import of this unanimous ruling by the World Court in Paragraph 105(2)(C) of the Advisory Opinion should be
crystal 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, and 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;"
In his Dissenting Opinion at page 3, Judge Weeramantry interpreted Paragraph 105(2)(D) of the Advisory Opinion
as follows:
(v) Paragraph 2(D) - (Unanimous)
This paragraph, also unanimously endorsed by the Court, lays down the further limitation of compatibility with the
requirements of international law applicable in armed conflict, and particularly with the rules of international
humanitarian law and specific treaty obligations.
There is a large array of prohibitions laid down here.
My Opinion will show what these rules and principles are, and how it is impossible, in the light of the nature and
effects of nuclear weapons, for these to be satisfied.
If the weapon is demonstrably contrary to these principles, it is unlawful in accordance with this paragraph of the
Court's Opinion.
Once again, in this passage Judge Weeramantry has provided us with an authoritative interpretation of Paragraph
105(2)(D) not only because he is a sitting Judge of the World Court, but also because he is one of the world's
leading experts on nuclear weapons and international law.
The import of this unanimous ruling by the World Court in Paragraph 105(2)(D) of the Advisory Opinion should also
be crystal 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 world's nuclear weapons states, including therein nuclear deterrence, are illegal and, I might
add, criminal.
Unanimous Ruling on Nuclear Disarmament.
Finally, in Paragraph 105(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 twin obligations of both customary and conventional international law. Consequently, all
of the world's nuclear weapons states currently stand in material breach of NPT Article VI as well as these identical
twin obligations under customary international law.
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 mportance for the interpretation of this component of the dispositif.
According to President Bedjaoui, 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. 11. In this regard, President Bedjaoui drew attention to the fact that in
Paragraph 79 of the Advisory Opinion, the Court had 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 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 recall to mind once again the text of Paragraph
104 of the Advisory Opinion, which immediately precedes the entirety of the dispositif found in Paragraph 105, as
follows:
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 Court makes it crystal clear that the dispositif, including
Paragraph 105(2)(E), does not mean to take back or call into question any of its findings 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 Paragraph 105(2)(E)
In his Dissenting Opinion Judge Weeramantry criticized the entirety of Advisory Opinion Paragraph 105(2)(E) as
follows:
(ii) Paragraph 2(E) - (7 votes to 7. Casting vote in favour by the President)
I am in fundamental disagreement with both sentences contained within this paragraph.
I strongly oppose the presence of the word "generally" in the first sentence. The word is too uncertain in content for
use in an Advisory Opinion, and I cannot assent to a proposition which, even by remotest implication, leaves open
any possibility that the use of nuclear weapons would not be contrary to law in any circumstances whatsoever. I
regret the presence of this word in a sentence which otherwise states the law correctly. It would also appear that the
word "generally" introduces an element of internal contradiction into the Court's Opinion, for in paragraphs 2(C) and
2(D) of the Court's Opinion, the Court concludes that nuclear weapons must be consistent with the United Nations
Charter, the principles of international law, and the principles of humanitarian law, and, such consistency being
impossible, the weapon becomes illegal.
The word "generally" admits of many meanings, ranging through various gradations, from "as a general rule;
commonly", to "universally; with respect to all or nearly all". [Footnote omitted.] Even with the latter meaning, the
word opens a window of permissibility, however narrow, which does not truly reflect the law. There should be no
niche in the legal principle, within which a nation may seek refuge, constituting itself the sole judge in its own cause
on so important a matter.
The main purpose of this Opinion is to show that, not generally but always, the threat or use of nuclear weapons
would be contrary to the rules of international law and, in particular, to the principles and rules of humanitarian law.
Paragraph 2(E) should have been in those terms, and the Opinion need have stated no more.
The second paragraph of 2(E) states that the current state of international law is such that the Court cannot
conclude definitely whether the threat or use of the weapon would or would not be lawful in extreme circumstances
of self defence. It seems self-evident to me that once nuclear weapons are resorted to, the laws of war (the ius in
bello) take over, and that there are many principles of the laws of war, as recounted in this Opinion, which totally
forbid the use of such a weapon. The existing law is sufficiently clear on this matter to have enabled the Court to
make a definite pronouncement without leaving this vital question, as though sufficient principles are not already in
existence to determine it. All the more should this uncertainty have been eliminated in view of the Court's very
definite findings as set out earlier.
See Dissenting Opinion of Judge Weeramantry, at pp. 2-3.
Once again, Judge Weeramantry's comments constitute an authoritative interpretation of Paragraph 105(2)(E)
because he is a sitting Judge of the World Court and also because he is one of the world's leading experts on
nuclear weapons and international law.
The First Paragraph of Paragraph 105(2)(E)
Quite obviously, there should not be any problem interpreting the meaning of 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
thus
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 the
NATO Alliance) states that nuclear deterrence has no juridical value, and observes: "On pourrait arriver à dire que
l'on est en présence d'un anti-droit, 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 the NATO Alliance)
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 consequence 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.
Indeed, I personally know many devout Christians who sincerely believe that nuclear weapons are the Anti-Christ.
Typically, anti-nuclear resisters oppose nuclear weapons because of a mixture of religious, moral, and legal
considerations. Their admixture of motivations is given legal significance by the so-called Martens Clause as set
forth, for example, in the Preamble to Hague Convention No. IV Respecting the Laws and Customs of War on Land
of 18 October 1907, to which the United States government is a contracting party:
Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to
declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain
under the protection and the rule of the principles of the law of nations, as they result from the usages established
among civilized peoples, from the laws of humanity, and the dictates of the public conscience.
Certainly the dictate of the public conscience around the world is against the threat and use of nuclear weapons. As
Judge Shahabuddeen put the matter on page 27 of his Dissenting Opinion:
In the result, on the basis of what the Court finds to be the state of the public conscience, it will be able to say
whether the Martens Clause operates to prohibit the use of nuclear weapons in all circumstances. On the available
material, it would be open to the Court to hold that the Clause operates to impose such a prohibition.
Interpreting The Second Paragraph of Paragraph 105(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 be lawful or unlawful in an extreme circumstance of
self-defence, in which the very survival of a State would be at stake;
At the very outset of his Dissenting Opinion Judge Koroma (of Sierre Leone) had the following observations to make
about the second paragraph of Paragraph 105(2)(E):
It is a matter of profound regret to me that I have been compelled to append this Dissenting Opinion to the Advisory
Opinion rendered by the Court, as I fundamentally disagree with its finding - secured by the President's casting vote
- 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".
This finding, in my considered opinion, is not only unsustainable on the basis of existing international law, but, as I
shall demonstrate later, is totally at variance with the weight and abundance of material presented to the Court. The
finding is all the more regrettable in view of the fact that the Court had itself reached a conclusion 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".
A finding with which I concur, save for the word "generally". It is my considered opinion based on the existing law
and the available evidence that the use of nuclear weapons in any circumstance would be unlawful under
international law. That use would at the very least result in the violation of the principles and rules of international
humanitarian law, and would therefore be contrary to that law.
See Dissenting Opinion of Judge Koroma, at p. 1.
Likewise, 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 right to go to war) as well as with the laws of war and
international humanitarian law (that is, the jus in bello, or 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 from both customary and conventional international law.
Likewise, 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." 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 civilians." 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).
As can be seen from the above analysis, 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 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 consistent 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 advocated by his or her state of nationality before the World Court despite
the vaunted independence of the World Court from outside political pressures. Nevertheless, 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.
In light of these three dissenting votes on Paragraph 105(2)(E) by Judges Schwebel, Higgins and Guillaime, 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, then 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. It is difficult to
imagine any circumstances where the actual use of nuclear weapons would not violate either the Hague Conventions
or the Geneva Conventions. In other words, it is difficult to imagine any circumstances where the actual use of
nuclear weapons would not violate "intransgressible principles of international customary law."
Furthermore, as already noted above, the United States government has ratified Hague Convention No. IV of 1907
and the Four Geneva Conventions of 1949 and so is bound to observe them a fortiori and without any exceptions
whatsoever. The same is true for the other acknowledged nuclear weapons states: Britain, China, France and
Russia. The non-pronouncement found in the World Court's Advisory Opinion cannot alter those undeniable facts
and the legal conclusions that flow inevitably from them.
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 I
would add criminal. Hence all that needs to be done in order to defend an anti-nuclear resister is to apply the World
Court's Advisory Opinion to the actual nuclear weapons system that was the object of the anti-nuclear resister's
action. By applying the teachings of the World Court's Advisory Opinion to the actual facts of the case, it should
become clear that the specific nuclear weapons system and its related strategy are illegal and criminal.
Hence, there is no need to deal with the question of the legality or illegality of nuclear weapons as an abstract
proposition. Rather, simply apply the language of the Advisory Opinion, together with the analysis of the Opinion as
set forth above, to the specific nuclear weapons system that was the object of the anti-nuclear resister's action: e.g.,
NAVSTAR/Trident 2/Delta 5. Once you demonstrate the mission and the capabilities of the specific nuclear
weapons system, its illegality and criminality should become blatantly obvious to the jury.
Indeed, this contextual approach to the problem coincides quite nicely with the contextual argument twice made by
the United States government in its Written Observations on the Request by the General Assembly for an Advisory
Opinion that was submitted to the International Court of Justice during the course of the World Court proceedings:
...As in the case of other weapons, the legality of use depends on the conformity of the particular use with the rules
applicable to such weapons. This would, in turn, depend on factors that can only be guessed at, including the
characteristics of the particular weapon used and its effects, the military requirements for the destruction of the
target in question, and the magnitude of the risk to civilians...
By following this contextual approach to the actual nuclear weapons system at issue, you are only taking seriously
and applying the contextual approach recommended by the United States government itself to the International Court
of Justice. Certainly a judge and a jury anywhere in the United States of America should have the exact same right
and duty to take into consideration the entire context surrounding the threat and use of the particular nuclear
weapons system that motivated any act of anti-nuclear resistance.
Basically, then, the defense strategy in all these anti-nuclear trials has been to shift the jury's focus of attention away
from the act of anti-nuclear resistance over to the specific nuclear weapons system involved. In other words, put the
nuclear weapons system on trial instead of the anti-nuclear resisters. The critical factor in all these cases has been
to get both the legal evidence and the technical evidence about the specific nuclear weapons system involved to be
considered by the jury. The precise tactics, theories and strategies whereby this has been done have never mattered
so much as whether or not the jury heard this legal evidence and the technical evidence in the first place.
Optimally, the successful defense of an anti-nuclear resister requires testimony at trial and before the jury by two
experts: one on international law, the other on the technical characteristics of the specific nuclear weapons system
involved. Of course, if you only have one expert or the judge will permit only one expert witness to testify, then that
expert will have to do double duty. In this case, it is probably better to have your international law expert bone up on
the facts surrounding the specific nuclear weapons system. You can usually get your international law expert
qualified as an expert on nuclear weapons policies as well. By comparison, you will not be able to get your technical
expert qualified as an expert on international law. So when faced with a choice, use the international law expert.
Of course, the judge might decide to strip you of all your expert witnesses, both technical and legal. If the judge does
this, there is a good chance that such a ruling will constitute reversible error on appeal. Nevertheless, even if you are
stripped of all your experts at trial, you must not despair! There have been several instances of anti-nuclear resisters
obtaining hung juries by means of their own testimony. I know of other cases where different types of protesters
have been able to obtain outright acquittals by means of their own testimony alone.
In any event, prior to trial anti-nuclear resisters and their lawyers must spend a good deal of time preparing their
testimony in chief. During the course of their direct testimony, anti-nuclear resisters must explain their basic
understanding and knowledge of the technical characteristics of the specific nuclear weapons system that they
acted against. In addition, they should also try to explain in their own words that at the time they undertook their act
of anti-nuclear resistance, this specific nuclear weapons system stood in gross violation of the United Nations
Charter; the Nuremberg Charter, the Nuremberg Judgment, and the Nuremberg Principles; the Genocide
Convention and its Implementation Act; the Hague Regulations; the Geneva Conventions and Protocol I; 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. Their act of anti-nuclear resistance was intended and designed for the express
purpose of terminating ongoing inchoate criminal activity under well recognized principles of international law that
have been fully subscribed to by the United States government itself.
Once again, I cannot over-emphasize enough that when facing any serious criminal charges, an anti-nuclear resister
is well advised to be represented by an attorney. Even with representation by counsel, it will be difficult enough as it
is to set up the defense of an anti-nuclear resister using international law, let alone to pull it off successfully. Based
upon my experience with doing anti-nuclear protest cases since 1982, anti-nuclear resisters do themselves no favor
by foregoing the services of an attorney--with all due respect to them. In some cases, they might even hurt the
anti-nuclear cause that they seek to promote by proceeding to trial without adequate counsel and representation by a
lawyer.
Quite obviously, there is a lot more I could say about defending anti-nuclear resisters under international law. But for
a variety of reasons, I believe I have said enough for the time being. Good luck to you!
F.A.B. - 14 November 1997
