6. Legal implications
On 8th July 1996 the International Court of Justice gave its advisory opinion on the legality of the threat or use of nuclear weapons. The Court said 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".76
This was followed by a phrase which has been picked up by the British government. The ICJ said: "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 the State would be at stake."77 While this leaves a theoretical potential loophole, it is important to note that the Court did not say that in these extreme circumstances the use of nuclear weapons would be legal. They failed to make any conclusion. This was a very contentious clause with strong opposition from several judges, for different reasons. It was only adopted following the casting vote of the chair, President Benaoui, who later commented: "I cannot overemphasise that the inability of the court to go further than the formal pronouncement at which it has arrived cannot in any way be interpreted as a half- open door to recognition of the legality of the threat or use of nuclear armaments."78
The Court did decide unanimously that "a threat or use of nuclear weapons should .. be compatible with the requirements of the international law applicable in armed conflict, particularly those of the principles and rules of international humanitarian law ..." 79. As Judge Weeramantry said: "The principles of humanitarian law apply to the conduct of self-defence, just as they apply to the conduct of any other aspect of military operations."80 In the extreme circumstances when the survival of the state was at stake, any threat or use of nuclear weapons would still have to comply with humanitarian law.
The basic principle of humanitarian law is that of discrimination between civilian and military objects. This is repeated as the Basic Rule in the 1949 Geneva Convention: "In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and the combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives."81 The current state of customary international law on this point is clarified in the ICJ opinion which says: "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". 82
The likely British plans for the use of Trident as detailed in the examples earlier do not comply with this Basic Rule. In the case of the groundburst explosion of one Trident warhead, fallout is dispersed over a huge area resulting in thousands of civilian fatalities. The maps show very crude projections of where the fallout would lie. The real fallout pattern would depend on the weather conditions. Even if these were known the mechanisms of dispersal are too complex to be accurately predicted. Those who plan a nuclear attack can predict that a groundburst explosion would contaminate a vast area with lethal levels of radiation, but could not anticipate the boundaries of that area. This must be one of the clearest possible examples of the indiscriminate use of a military weapon.
If we look at the specific example of the bunkers outside Moscow it is clear that the numbers of civilians at risk is very high. In setting a criteria of being able to attack facilities defended by the ABM system, the MoD has indicated that they are prepared to attack sites close to the city of Moscow. There are large towns throughout this whole area. In the case of each bunker, and whatever the wind direction, the fallout from an attack would reach urban areas. In most cases fallout from attacking a bunker would reach a town with a population of over 50,000 and in some cases fallout would affect hundreds of thousands.
It can be argued that as the primary plan will be to launch all the missiles on the submarine at once, we should look at the total effect of all 48 warheads. The map showed the effect with a South Westerly wind. If this were adjusted for all possible wind conditions, in every case there would be massive casualties both in the city of Moscow and in the surrounding towns and villages.
If we look at the example of an attack with one missile on Russian Northern Fleet bases, again there would be huge problems of radioactive contamination, this time from explosions near nuclear waste stores. Again the pattern of dispersal would be unpredictable.
Even if we put aside the issue of this nuclear waste, the case of the submarine bases shows how the destructive effect of a Trident warhead is so great that discrimination between military and civilian objects is impossible. Each "airburst" warhead would totally destroy an area 6 kms across and cause widespread damage over an area 14 kms across. When we look at real examples of the actual co-ordinates that are probably held in the computers of a Trident submarine it is clear that at these locations there are not only military facilities, but whole towns and villages which would be destroyed.
The actual configuration of most of the missiles, with around 4 warheads on each, indicates that again it is not sufficient to consider solely the effect of one warhead. The actual plans which are prepared would result in 4 warheads all landing at once. The illustration for the Murmansk area shows how some towns would be affected by the blast and heat from several explosions.
In the case of sub-strategic Trident, if the warhead has a yield in the region of 5 kiloton then this would result in significant numbers of casualties over an area of 30 square kilometres and total devastation of an area of 2.7 square kilometres. The area affected is so large that this weapon is not capable of distinguishing between civilian and military targets, as specified in the ICJ opinion.83
At the ICJ hearing the nuclear weapons states made submissions about the potential to build very low yield nuclear weapons which, while technically nuclear arms, produced effects which were not totally beyond the scale of conventional explosives.84 It is interesting to note that Malcolm Rifkind argued against very low yield nuclear weapons.85 It is reasonable to conclude that the yield of sub-strategic Trident is not so low as to fall into this category.
In addition the justification which Rifkind used for sub-strategic Trident, "to send a message" and "in defence of Britains vital interests" would be unacceptable. Even with regard to weapons of a smaller yield than sub-strategic Trident, the Court said that the nuclear weapons states had not presented any satisfactory case of when these could legally be used. 86
The legality of Trident has been questioned by Lord Murray, a retired Scottish High Court Judge and former Lord Advocate. He has considered the effects of using a sub-strategic Trident warhead against a military facility in or near a town and concludes that "such a weapon, so used, may well be considered to be inherently indiscriminate and so illegal to use." He added "the case for a lawful use of strategic Trident would be even more difficult to make. Its area of destruction would be city- sized .."87
Additional Protocol I (1977) of the Geneva Convention is the most detailed law on this issue.88 Under its provisions the threat or use of Trident would be clearly illegal. Any use of Trident would cause massive damage to the environment which would affect human health. This is explicitly outlawed in Article 55. Trident is also clearly an indiscriminate weapon as defined and prohibited by Article 51. Also Article 57 requires that - "In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects".89 This is regarded as an expression of customary law. Article 57 further requires that those who plan any attack must ensure that the objective is not a civilian object and that this plan would not result in excessive civilian casualties.
The Protocols also make references to civilian losses not being "excessive in relation to the concrete and direct military advantage anticipated". 90 The International Committee of the Red Cross (ICRC) produced the initial draft of the Protocols and has published a detailed commentary on them. This notes that "proportionality is not quite at the same level as the fundamental principles governing the matter. It appears in a secondary and subsidiary role in Article 51 ... and in Article 57 ... . It cannot therefore destroy the structure of the system, nor cast doubt upon the fundamental principles of humanitarian law. The principle of proportionality merely contributes to the clarification of matters, though it is true that this is important. Thus an attack cannot be justified only on grounds of proportionality if it contravenes the above-mentioned principles." 91
The ICRC commentary rules out any attack which causes massive civilian casualties. It says: "The idea has also been put forward that even if they are very high, civilian losses and damages may be justified if the military advantage at stake is of great importance. This idea is contrary to the fundamental rules of the Protocol ... The Protocol does not provide any justification for attacks which cause extensive civilian losses and damages. Incidental losses and damages should never be extensive." 92
Successive British governments have played fast and loose with international law when it comes to nuclear issues. For 20 years British ratification of the Additional Protocols was delayed, because of concern about nuclear weapons. When they finally were ratified in January 1998, the government added a statement to say that the new rules introduced by the Protocols did not apply to nuclear weapons. The governments approach is disreputable, but it is also largely futile. The threat or use of Trident is illegal, not only under the specific new rules introduced by the 1977 Geneva Convention Protocols, but also under the principles of customary international law, which are binding on all states.
The ICJ made it clear that if the use of a weapon was illegal, then the threat to use it was also illegal.93 The current deployment of Trident comes close to being a threat.94 There is always one submarine on patrol. That patrol is not an exercise or a trial but is a fully armed operational deployment. It is very likely that the fire control system computers on that submarine hold details of specific targets against which the missiles could be used in a relatively short period of time.
These questions about the legality of Trident are not obscure, they are fundamental. The President of the International Court of Justice described the atom bomb as a "blind weapon" and "the ultimate evil". President Bedjaoui also said "The existence of nuclear weapons is therefore a challenge to the very existence of humanitarian law."95 To justify Trident is to assert the right to attack civilians in battle and to defend nuclear weapons is to undermine the place of international law in modern society.
- Written by John Ainslie, Administrator, Scottish Campaign for Nuclear Disarmament. Printed with support from the Iona Community, 1999
Notes
76. Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice (ICJ), 8 Jul 1996, para 105 (2)
77. ibid
78. President Bedaoui, ICJ, 8 Jul 1996
79. ICJ Opinion, 8 Jul 1996, para 105 (2) D
80. Judge Weeremantry, ICJ Opinion, 8 Jul 1996
81. Geneva Convention 1949 Article 48
82. ICJ Opinion, 8 Jul 1996, para 78
83. ibid
84. ICJ Opinion, 8 Jul 1996, para 94
85. "there is sometimes speculation that more so-called useable nuclear weapons - very low-yield devices which could be used to carry out what are euphemistically called surgical strikes - would allow nuclear deterrence to be effective in circumstances where existing weapons would be self-deterring. I am thoroughly opposed to this view. The implications of such a development of a new war-fighting role for nuclear weapons would be seriously damaging to our approach to maintaining stability in the European context, quite apart from the impact it would have on our efforts to encourage non-proliferation and greater confidence outside Europe." UK Defence Strategy: A Continuing Role for Nuclear Weapons, Malcolm Rifkind, para 25.
86. ICJ Opinion, 8 Jul 1996, para 94
87. Lord Murray, speaking at Scottish Churches House, May 1998
88. "Additional Protocol I in no way replaced the general customary rules applicable to all means and methods of combat including nuclear weapons. In particular the Court recalls that all States are bound by those rules in Additional Protocol I which, when adopted, were merely the expression of the pre-existing customary law, such as the Martens Clause, reaffirmed in the first article of Additional Protocol I". ICJ Opinion, 8 Jul 1996, para 84. The British government has accepted this position.
89. Geneva Convention Additional Protocol I, 1977, Article 57, para 1
90. Geneva Convention Additional Protocol I, 1977, Article 51, para 5b and Article 57 paras 2a(iii) and 3
0 ICRC Commentary on the Additional Protocols, Geneva 1987, p 683, re Article 57 para 2a(iii)
92. ICRC Commentary, p 626, re Article 51 para 5
93. "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", ICJ Opinion, 8 Jul 1996, para 78
94. The deployment of US nuclear weapons is called a threat in the US Nuclear Policy Review - "the US will continue to threaten retaliation, including nuclear retaliation, and to deter aggression against the US"
95. Declaration of President Bedjaoui, ICJ, 8 Jul 1996.