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Trident and genocide

The 70th anniversary of the liberation of Auschwitz has focused attention on genocide and the need to avoid any further atrocities in future. The issue of whether the term genocide can be applied to the use of nuclear weapons was considered by the International Court of Justice in its 1996 Advisory Opinion on the threat or use of nuclear weapons.  The Court concluded that it would depend on the circumstances whether or not a nuclear attack constituted genocide - 

"It was maintained before the Court that the number of deaths occasioned by the use of nuclear weapons would be enormous; that the victims could, in certain cases, include persons of a particular national, ethnic, racial or religious group; and that the intention to destroy such groups could be inferred from the fact that the user of the nuclear weapon would have omitted to take account of the well-known effects of the use of such weapons. 

"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."

Two of the judges went further in their individual opinions.

Judge Weeramantry said:

"The Court's treatment of the relevance of genocide to the nuclear weapon is, in my view, inadequate (paragraph 26 of the Opinion). Nuclear weapons used in response to a nuclear attack, especially in the event of an all-out nuclear response, would be likely to cause genocide by triggering off an all-out nuclear exchange, as visualized in Section IV below. Even a single "small" nuclear weapon, such as those used in Japan, could be instruments of genocide, judging from the number of deaths they are known to have caused. If cities are targeted, a single bomb could cause a death toll exceeding a million. If the retaliatory weapons are more numerous, on WHO'S estimates of the effects of nuclear war, even a billion people, both of the attacking State and of others, could be killed. This is plainly genocide and, whatever the circumstances, cannot be within the law. 

"When a nuclear weapon is used, those using it must know that it will have the effect of causing deaths on a scale so massive as to wipe out entire populations. Genocide, as defined in the Genocide Convention (Art. II), means any act committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such. Acts included in the definition are killing members of the group, causing serious bodily or mental harm to members of the group, and deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part. 

"In discussions on the definition of genocide in the Genocide Convention, much play is made upon the words "as such". The argument offered is that there must be an intention to target a particular national, ethnical, racial or religious group qua such group, and not incidentally to some other act. 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." 

 Judge Koroma said,

"[The Genocide Convention] further emphasized the Co-operation required in order "to liberate mankind from such an odious scourge" and, given the humanitarian and civilizing purpose of the Convention, it referred to it as intended "to safeguard the very existence of certain human groups", and "to confirm and endorse the most elementary principles of morality". The Court cannot therefore view with equanimity the killing of thousands, if not millions, of innocent civilians which the use of nuclear weapons would make inevitable, and conclude that genocide has not been committed because the State using such weapons has not manifested any intent to kill so many thousands or millions of people. Indeed, under the Convention, the quantum of the people killed is comprehended as well. It does not appear to me that judicial detachment requires the Court from expressing itself on the abhorrent shocking consequences that a whole population could be wiped out by the use of nuclear weapons during an armed conflict, and the fact that this could tantamount to genocide, if the consequences of the act could have been foreseen. Such expression of concern may even have a preventive effect on the weapons being used at all."

Regardless of whether or not the use of nuclear weapons in all circumstances falls within the legal definition of genocide, it is clear that the indiscriminate slaughter of millions of people in a nuclear attack invokes a similar revulsion to the genocide carried out by Nazi Germany and in subsequent atrocities.

The main finding of the ICJ was

"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;"

Judge Bedjaoui, who chaired the Court, later gave his personal opinion on the legality of the British Trident system -  

"I have been asked to give a personal opinion on the legality of a nuclear weapons system that deploys over 100 nuclear warheads with an approximate yield of 100 kt per warhead. Bearing in mind that warheads of this size constitute around eight times the explosive power of the bomb that flattened Hiroshima in 1945 and killed over 100,000 civilians, it follows that the use of even a single such warhead in any circumstance, whether a first or second use and whether intended to be targeted against civilian populations or military objectives, would inevitably violate the prohibitions on the infliction of unnecessary suffering and indiscriminate harm as well as the rule of proportionality including with respect to the environment. In my opinion, such a system deployed and ready for action would be unlawful.

"In accordance with evidence heard by the Court, it is clear that an explosion caused by the detonation of just one 100 kt warhead would release powerful and prolonged ionising radiation, which could not be contained in space or time, and which would harmfully affect civilians as well as combatants, neutral as well as belligerent states, and future generations as well as people targeted in the present time.  In view of these extraordinarily powerful characteristics and effects, any use of such a warhead would contravene international and humanitarian laws and precepts. In other words,  even in an extreme circumstance of self-defence, in which the very survival of a State would be at stake, the use of a 100 kt nuclear warhead—regardless of whether it was targeted to land accurately on or above a military target—would always fail the tests of controllability, discrimination, civilian immunity, and neutral rights and would thus be unlawful.

"In my opinion, any state that aids and abets another country, in the deployment and maintenance of nuclear warheads of 100 kt or comparable explosive power would also be acting unlawfully.

"The modernisation, updating or renewal of such a nuclear weapon system would also be a material breach of NPT obligations, particularly the unequivocal undertaking by the nuclear-weapon states to “accomplish the total elimination of their nuclear arsenals leading to nuclear disarmament” and the fundamental Article VI obligation to negotiate in good faith on cessation of the arms race and on nuclear disarmament, with the understanding that these negotiations must be pursued in good faith and brought to conclusion in a timely manner.”

It should be noted that Bedjaoui's statement was about the legality of a single 100 kiloton warhead. The Trident system is designed to launch an attack with all of the missiles on a submarine within a few minutes, this would result in 40 nuclear explosions. With three armed submarines the force at Faslane can launch an attack which would cause 120 nuclear explosions. The scale of destruction would be such that the attack would undoubtably be illegal and would result in devastation on such a scale that it should be considered as genocide. 

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