AN INTERNATIONAL LAW PERSPECTIVE
wevigilo February 14th, 2009
By Anabel Dwyer for the Pacific Life Community, February 26 – March 1, 2009
A. Threat or use of Trident II/SLBM is unlawful (illegal and criminal) because the obligations to conform to the intransgressible rules and principles of humanitarian law cannot be reconciled with Trident’s known and understood indiscriminate and uncontrollable effects.
- The Trident II nuclear weapons systems are designed and intended to unleash vast heat, blast and radiation; the radiation will cause immediately lethal and long-term carcinogenic, mutagenic and teratogenic effects on human beings and other life forms that cannot be controlled in space or time. No one can deny the heat, blast and radiation-induced death, injury and illness caused by the
- Threat or use of Trident II is categorically and universally prohibited in any circumstance by “intransgressible” rules and principles of humanitarian law. Any such threat or use, whether in offence or defense, is a war crime going far beyond the bounds of lawful war. This body of positive law as applied to threat or use of nuclear weapons is summarized most authoritatively by the International Court of Justice in its 1996 advisory opinion (ICJ Op.).[2] The London Charter and the Nuremberg Tribunals made it clear that those rules and principles preempt contrary domestic law. Particular prohibitions of law are directly incorporated into the US criminal code as war crimes (18 USC 2441) or genocide (18 USC 1091-1093) and binding US treaties that are “the supreme law of the land” (US Constitution, Article VI, clause 2) and universally binding “intransgressible” rules of humanitarian law.
- The fundamental rules and principles of humanitarian law include: a) “States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilians and military targets” (ICJ Op., § 78). A corollary is that it is prohibited to use weapons that cause uncontrollable effects [1977 Protocol I to the Geneva Conventions, Art. 51(4)]. Use of Trident II system is unlawful per se because if targeted at military objects, the effects still are indiscriminate and uncontrollable. b) “It is prohibited to cause unnecessary suffering to combatants; it is accordingly prohibited to use weapons causing them such harm or uselessly aggravating their suffering” [ICJ Op., § 78; 1907 Hague Convention IV, Art. 23(e)].
- “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 Op., § 78). Since any use of a nuclear weapon would cause indiscriminate harm and unnecessary suffering, the threat of such use is illegal. Reprisal/retaliation is not a justification for use of any nuclear weapon system; humanitarian law applies in that circumstance as others. Thus the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia stated: “No circumstances would legitimize an attack against civilians even if it were a response proportionate to a similar violation perpetrated by the other party.”[3]
- Any use of any nuclear weapon system would also violate the international law of armed conflict by causing widespread, long-term and severe damage to our common environment and contaminating neutral states, and violate the right to life and other non-derogable human rights.
- Citizens have exercised their rights, duties, privileges to “bear witness, to speak truth to power” regarding the per se unlawfulness of particular weapons or tactics based on the principle of individual responsibility established at Nuremberg as well as the Martens Clause which states: “In cases not covered by this protocol or other international agreements civilians and combatants remain under the protection and authority of the principles of international law derived from custom, from the principles of humanity and from the dictates of the public conscience” (ICJ Op., § 78, Hague Convention II 1899; Additional Protocol I, 1977) .
- We consciously act as lawyers and citizens in the continuing struggle over “a vision of central guidance that is built around the values of human dignity and oriented toward the possibility of a planetary community joined together by contractual bonds rather than regimented by hegemonical bondage.”[4] However, military-industrial institutions continue to claim ultimate (if not quite unlimited) elite/state power in matters of national and international security. Justifications for nuclear weapons the center-piece (apex) of the war/state system are increasingly disconnected to factual, moral, legal, economic and environmental realities which demand essential changes for human continuance.
- The law (still considered effective primarily if enforced rather than implemented by agreement) tends to be rigid because methods and practice are institutionalized. The SESP II case is a glaring example of our failure to move courts which presume our nuclear weapons are legal because Congress and the President decided they are necessary to deter our enemies, the “evil” other. Thus, States possessing nuclear weapons feel the need to “justify” threat or use of nuclear weapons, as not necessarily unlawful for “defensive” purposes. The US argued before the ICJ: “If these weapons could not lawfully be used in individual or collective self-defense under any circumstances, there would be no credible threat of such use in response to aggression and deterrent policies would be futile and meaningless”[5] The recent UK White Paper (WP)[6] claims that the ICJ “rejected the argument that such use would necessarily be unlawful.” However, the ICJ held that the requirements of necessity, proportionality, and humanitarian law must be met in all circumstances. Thus “a use of force that is proportionate under the law of self-defense, must in order to be lawful, also meet the requirements of the applicable law in armed conflict which comprise in particular the principles and rules of humanitarian law” (ICJ Op., § 42).
B. Under Article VI of the Nuclear Non-Proliferation Treaty (NPT) all states are legally obligated “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” (ICJ Op., § 105(2)F; NPT Art. VI). The unequivocal undertaking to eliminate nuclear arsenals in compliance with NPT Article VI requires implementation of the practical steps agreed upon at the 2000 NPT Review Conference and cancelling upgrades or replacements of current nuclear weapons systems.
- State parties to the 2000 NPT Review Conference unanimously agreed to practical steps for systematic and progressive efforts to implement Article VI of the NPT including an unequivocal undertaking by the nuclear weapon states (NWS) to accomplish total elimination of their nuclear arsenals. Other practical steps for disarmament, affirmed in subsequent UN General Assembly resolutions, include implementing the principles of verification, transparency, and irreversibility in reducing and eliminating nuclear arsenals; the Comprehensive Test Ban Treaty; the Fissile Materials Cut-off Treaty; a diminishing role of nuclear weapons in security policies; and reduced operational status of nuclear forces.
- Failure to implement the disarmament obligation and the 2000 commitments, or attempting to deny their continued application, undermines the object and purpose of the NPT. In particular, upgrade or replacement of nuclear weapons systems by such means as the US Reliable Replacement Warhead program or upgrades in targeting capability are material breaches of obligations under Article VI of the NPT.[7] and of the general disarmament obligation stated by the Court applying to all states. In projecting the maintenance of nuclear forces for decades to come, they assume the indefinite postponement of conclusion of negotiations on nuclear disarmament and fulfillment of the unequivocal undertaking to eliminate nuclear arsenals. They further run contrary to the commitment to a diminishing role of nuclear weapons in security policies, particularly if they result in enhanced military capabilities. No country can at once adhere to its obligations under international customary and conventional law outlined above and rely on a lawless security policy employing a “credible” nuclear deterrent (WP 4-1) posing “a uniquely terrible threat” (WP 3-3) to “deter threats anywhere in the world” (WP 4-4).
C. Practical and lawful solutions:
- The Model Nuclear Weapons Convention developed by civil society and circulated as a UN document provides a template for the global prohibition and verified elimination of nuclear weapons.
- Existing Nuclear Weapon Free Zones (NWFZs) provide models for new NWFZs in Europe, the
- All debate on nuclear disarmament and weapon system replacement or upgrade must acknowledge the undeniable harms and real costs and dangers of the nuclear cycle to human life, to life itself and our ecosystem. Such evidence is well documented by civil society groups including the Hibakusha, the International Physicians for the Prevention of Nuclear War, participants in the Indigenous World Uranium Summit, Navajo Nation, 30 Nov-2 Dec. 2006, and others. Non-violent/symbolic citizen action to insist that states uphold existing law can be supplemented by claims of breach of health, safety, welfare, and fiduciary duties of local and regional governments and corporate responsibility for costs from mining, testing, contamination, and waste.
[1] Nuclear
[2] Legality of the Threat or Use of Nuclear Weapons, July 8, 1996, ICJ Reports (1996) 226.
[3] Prosecutor v. Martic, Case No IT-95-11-1 (8 Mar. 1996).
[4] “A New Paradigm for International Legal Studies: Prospects and Proposals,” Richard Falk, International Law: A Contemporary Perspective, Sudies inon a Just World Order, No.2 Richard Falk and Saul H. Mendlovitz, Eds., 1982.
[5] ICJ Hearing for the Nuclear Weapons Advisory Opinion, November 15, 1995, at 78 <http://www.icj-cij.org/>
[6] “The Future of the
[7] . “Peacerights The Maintenance and Possible Replacement of the Trident Nuclear Missile System”
UK’s Nuclear Deterrent, Current and Future Issues of Legality”, Rabinder Singh, QC, and Professor Christine Chinkin, Matrix Gray’s Inn London WC1R 5LN 19 December 2005; Lawyers’ Committee on Nuclear Policy, Nuclear Disarmament and Nonproliferation, LCNP Statement on Replacement of the UK Trident, March 2007.