JUDGEMENT DAY

On July 9th, The Independent reported that: ‘The International Court of Justice yesterday took a significant step towards eradicating the threat of nuclear weapons, declaring that their use was contrary to international law and established humanitarian standards', adding that this ‘unexpectedly robust decision delighted anti-nuclear campaigners.' Financial Times headline was, ‘Use or threat of use "unlawful,"' explaining that such had been found to be unlawful ‘under most circumstances'. Vice-President of the International Peace Bureau, lawyer Fredrik Heffermahl, commented: ‘In a historic ruling on July 8, 1996, the International Court of Justice in the Hague declared nuclear weapons illegal and that the nuclear weapons states have a legal obligation to get rid of them...The Court itself was unable to imagine any situation where use would be legal...' (July 28th)

The court found threat as well as use to be unlawful: "The threat and use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and particularly the principles and rules of humanitarian law." The Court unanimously emphasised that the nuclear five had a legal obligation under the Non-Proliferation Treaty ‘to negotiate in good faith and to achieve a precise result - nuclear disarmament in all its aspects.' The majority opinion signed by all the judges comprises 37 closely printed pages in length. In addition, the fourteen judges filed a total of 230 additional pages of separate opinions.

UK judge Dame Rosalind Higgins (formerly of the LSE) put the matter succinctly:

‘ A weapon will be unlawful per se if it is incapable of being targeted at a military objective only, even if collateral harm occurs ... To the extent that a specific nuclear weapon would be incapable of this distinction, its use would be illegal.'

It was her view that: ‘I do not ... exclude the possibility that such a weapon could be unlawful by reference to humanitarian law, if its use could never comply with its requirements'. She added: ‘It may well be asked of a judge whether, in engaging in legal analysis of such concepts as unnecessary suffering, collateral damage and entitlement to self-defence, one has not lost sight of the real human circumstances involved.'

This is the first time the ICJ has commented on the legality of a specific weapons system. It has clearly affirmed that nuclear weapons come within the same laws as other weapons of mass destruction. The Court stated categorically that ‘discrimination between civilians and noncombatants' and ‘non-causing of unnecessary suffering to combatants' were ‘cardinal' and ‘untransgressable' principles of international law (paras 78,79). As regards whether treaties involving nuclear weapons implied some sort of admission that they were thereby legal, the view strenuously argued by the UK Government over the years, the Court resolved that:

‘it cannot be concluded from this that the established principles and rules of humanitarian law applicable in armed conflict did not apply to nuclear weapons. Such a conclusion would be incompatible with the intrinsically humanitarian character of the legal principles in question which permeates the entire law of armed conflict and applies to all forms of warfare and to all kinds of weapons, those of the past, those of the present and those of the future.'

The Judgement rejected the view advanced repeatedly by the nuclear states, that the practice of deterrence over the decades had given a de facto legal sanction to possession.

The Clause E Compromise

Clause E of the Judgement affirmed that:

the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable to armed conflict and, in particular, the principles of international law,'

however it also contained a reservation, to the effect that the Court had been unable to resolve whether or not use of nuclear weapons would be legal ‘in an extreme circumstance of self-defence, in which the very survival of a state would be at stake'. Some judges were perturbed at not having been given the option of voting separately on these, eg for the first and against the second. UK Judge Rosalind Higgins voted against clause E - but, we may wonder, with which of these did she disagree? The fourteen judges split equally 7-7, leaving President Bedjaoui with a casting vote. He gave it in favour of the clause, adding the following plea:

‘There will be those who will not fail to interpret paragaraph F as envisaging the possibility of states having recourse to nuclear arms in exceptional circumstances. I cannot insist too strongly that the inability of the Court to go further than the point it actually reached cannot in any way be interpreted as itself evidence of a (loophole) for the recognition of the legal permissibility of threatening or using nuclear weapons.'

IALANA President Peter Weiss expressed the matter as follows: ‘The only exception is an extreme case, and in that case use might be illegal.' Normally there are 15 judges as would prevent any such situation from arising, however one passed away literally during the hearings leaving an even number.

Why did the Court bind itself with that Hobson's Choice? We may here quote from Keith Mothersson's reflections (written at The Hague) upon the degree of compromise necessarily involved in an event that gave expression to the conscience of the world: ‘By presiding over a degree of fudge and reticence/indecision, Bedjaoui may have secured the best vote possible in the circumstances, to allow the backward (but powerful) elements in world opinion, including global legal opinion, time to get used to compete illegality.' He pointed out that the judges on ‘our' side were largely from the South, eg Bedjaoui from Algeria. Following the Judgement, KM observed, ‘we can expect that intensifying intellectual struggles will occur on a variety of fronts in the world legal and diplomatic communities.'

The commentary of Hungarian judge Herczegh stated: ‘The fundamental principles of international humanitarian law ... categorically and without equivocation forbid the use of weapons of mass destruction, including nuclear weapons ... international humanitarian law knows no exceptions to these principles.'

Chinese judge Shi commented, ‘Deterrence has no legal significance from the standpoint of the formation of a customary rule prohibiting the use of nuclear weapons as such.' Italian judge Bravo emphasised that the concept of nuclear deterrence has ‘no legal validity whatsoever' and affirmed concerning international law: ‘the totality of the normative production over the last fifty years, particularly as concerns the humanitarian law of war, is irreconcilable with the technological development of the construction of nuclear weapons.'

(Quotes are from ‘The World Court's near-perfect Advisory Opinion in the Nuclear Weapons Case' by IALANA President Peter Weiss, July 22nd)

Rob Green commented on the Judgement: ‘NATO's insistence on the option to use nuclear weapons first is now illegal; as is the new UK-France sub-strategic deterrence doctrine of threatening "rogue" states with a low-yield warning shot if British or French "vital interests" are at risk.'

IPB Vice-President Heffermehl concluded: ‘A repetition of the bombings of Hiroshima and Nagasaki (1945), or bringing nukes to the Falkland or the Gulf Wars (1983 and 1991), or recent US threats to use against Libya's chemical weapons factories (1996) would now be manifestly illegal .... It is misleading to claim that this is a "non-binding", "only advisory" opinion. The reality is that, in response to a request from the UN General Assembly, the world's highest judicial body has rendered the most authoritative statement that can be given in questions of international law. The Court's job is to advise the UN as to what the law is. Its ruling will carry great weight in international disarmament negotiations'.