THE INTERNATIONAL COURT OF
JUSTICE AND THE SCOTTISH HIGH COURT
Two Views of the Illegality of Nuclear Weapons
Peter Weiss, July 31, 2001
I consider it a singular honor to be invited to give this lecture at one
of Japan’s most distinguished universities (Waseda University). As a survivor of the
World War II Holocaust, in which part of my family perished, I have long felt a kinship
with the Japanese people who are committed to rid the world of nuclear weapons and
particularly with the hibakusha, who are dedicating their lives to the noble task of
ensuring that what happened to them will never happen to another human being. My topic
today will be based on the actions of three European women who, although not victims of
nuclear devastation themselves, are entitled, by virtue of their unceasing devotion to
nuclear abolition, to be regarded as soul sisters to the hibakusha.
On July 8, 1996, the International Court of Justice rendered its
momentous decision in the Nuclear Weapons Case 1.
In 270 pages of text, including separate opinions by each of the fourteen judges, it
answered the following question put to it by the General Assembly of the United Nations:
Is the threat or use of nuclear weapons in any circumstance
permitted under international law?
By thirteen votes to one, that of Judge Oda of Japan, it
held the question to be admissible.
Then, preceded by 105 paragraphs of closely reasoned
discussion, it made the following holding, or dispositif, as the conclusions of the
World Court are called:
A.. Unanimously, There is in neither customary nor
conventional international law any
specific authorization of the threat or use of nuclear
weapons.
B. By eleven votes to three, There is in neither customary nor
international law any comprehensive and universal prohibition of the threat and use of
nuclear weapons as such.
C. Unanimously, A threat or use of force by means of nuclear weapons that
is contrary to Article 2 of, paragraph 4, of the United Nations Charter and that fails to
meet all the requirements of Article 51 is unlawful.
D. Unanimously, 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.
E. By seven votes to seven, 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.
F. 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.
On June 8, 1999, three courageous women, Angela Zelter, Bodil Roder and
Ellen Moxley, managed to board a British Royal Navy vessel, the "Maytime",
moored in a Scottish lake, and to throw overboard certain computer equipment used to track
the movements and communicate with submarines armed with nuclear Trident missiles. The
Trident nuclear warheads have a force of 100 to 120 tons each, eight to ten times those of
the bombs dropped on Hiroshima and Nagasaki. They are among the deadliest weapons in the
current nuclear arsenals, each able to kill millions of people and to condemn millions
more to a slow lingering death. The damage their use would cause to the environment and to
future generations is unimaginable.
The women were arrested, charged with malicious damage to Her
Majesty’s property, and came to trial before a jury on September 27, 1999 in Greenock
Sheriff Court. First instance judges in Scotland are called Sheriffs and the judge
assigned to the case was a woman, Sheriff Gimblett.
There have been many trials of this kind in the last half century in the
United Kingdom, the United States and certain other countries, arising from the action of
nuclear resisters in trespassing on government property or causing minor damage to nuclear
weapons related government property. The normal defense in such cases, as it was in the
Greenock case, is to offer factual evidence of the nature and effect of nuclear weapons
and the nuclear weapons policy of the government involved, and legal evidence and
arguments as to the illegality of such policy under customary international law. Taken
together, this factual and legal evidence is intended to show that the defendants can
avail themselves of the defense of necessity; that is, the principle recognized by
virtually all legal systems that a minor breach of the law is justified if it leads to the
prevention of a greater one and if there is no likelihood of preventing by legal means the
greater one which will or may occur in the immediate or near future. In the great majority
of the cases involving resistance to nuclear weapons, the courts will refuse to hear such
evidence and will treat the proceedings as simply involving trespass upon or damage to
government property Therefore, these cases normally last from a few hours to at most two
or three days and end in the conviction of the defendants and the imposition of small
fines or prison sentences. .
The Greenock case was an exception. Sheriff Gimblett considered it her
duty to hear the evidence offered by the defendants, and to hear it both from them and
from four expert witnesses: Professor Paul Rogers and Rebecca Johnston, highly qualified
nuclear weapons researchers from the United Kingdom; Francis Boyle, a law professor and
long-time anti-nuclear activist from the United States; and Ulf Panzer, a German judge who
had himself, some fifteen years earlier, participated in actions protesting the siting of
nuclear cruise missiles in Germany. As a result, the trial lasted over three weeks. At its
conclusion the judge, who, under Anglo-American legal procedure, decides questions of law,
leaving questions of fact to the jury, told the jury that, as a matter of law, the
defendants had proved their case and therefore instructed the jury to acquit them. In
doing so, she relied to a large extent on the ICJ Opinion.
In Scotland, as in many other jurisdictions, a conviction can be
appealed, but an acquittal cannot. However, there exists in Scotland, whose judicial
system differs considerably from that of England, a rather unique procedure called The
Lord Advocate’s Reference. This enables the Crown, i.e. the prosecution, to in effect
appeal the ratio decidendi, the principles on which a decision was based, by
putting a number of questions to the Appeal Court of the High Court of Justiciary of
Scotland. In the Greenock case the Crown, which evidently had not expected Sheriff
Gimblett’s decision, put the following questions to the Appeal Court:
In a trial under Scottish procedure, is it competent to lead evidence
as to the content of customary international law as it applies to the United Kingdom?
Does any rule of customary international law justify a private
individual in Scotland in damaging or destroying property in pursuit of his or her
objection to the United Kingdom’s possession of nuclear weapons, its action in
placing such weapons at locations within Scotland or its policies in relation to such
weapons?
Does the belief of an accused person that his or her actions are
justified in law constitute a defence to a charge of malicious mischief or theft?
Is it a general defence to a criminal charge
that the offence was committed in order to prevent or bring to an end the commission of an
offence by another person?
The High Court’s extremely disappointing 33 page decision, answering
all four questions in the negative, was rendered on March 30, 2001 2.
As it constitutes the first detailed analysis of the ICJ Opinion by another judicial body,
I propose to discuss at some length its tortured interpretation of the Opinion. First,
however, a political point needs to be noted: Had the High Court in essence agreed with
Sheriff Gimblett’s courageous decision, this would have opened the way for further
actions of the type involved in the Greenock case to be undertaken with impunity from
judicial prosecution; in other words, it would have meant, ultimately, the end of the
United Kingdom as a nuclear power. Thus, it is perhaps no more than an example of what
Vice-President Schwebel, in his dissenting opinion in the ICJ case, called the
"titanic tension between State practice and legal principle."
Indeed, the Scottish court gave away its sympathy with Judge
Schwebel’s "titanic tension" by repeated references 3
to a 1964 British case, Chandler v. Director of Public Prosecutions, in which one
of the judges, Lord Reid, held as follows:
It is in my opinion clear that the disposition and armament of the armed
forces are and for centuries have been within the exclusive discretion of the Crown and
that no one can seek a legal remedy on the ground that such discretion has been wrongly
exercised … Anyone is entitled, in or out of Parliament, to urge that policy
regarding the armed forces should be changed; but until it is changed … no one is
entitled to challenge it in court.
That case, as I understand it, involved a legal challenge to certain
budgetary dispositions concerning the armed forces of the United Kingdom. In that sense,
the rationale for the holding in Chandler was similar to the political question
doctrine in American law, which is often used by American courts to avoid ruling on issues
which they consider to be within the prerogative of the legislature, even if they involve
questions of law. But to suggest, as the Scottish court did, that a military policy which
violates customary international law can be "within the exclusive discretion of the
Crown" is to betray a grievous misunderstanding of one of the basic principles of
international law.
In fact, the Court did treat the issue as justiciable, but only because
the issue of justiciability was not raised by the Crown in the trial below or in the Lord
Avocate’s Reference. But the very fact that the Court referred to the doctrine of the
Chandler case suggests that what was in the judges’ minds was that the very
notion of citizens challenging the government’s choice of weapons and tactics was
still unacceptable in the nuclear age, as it had been for centuries before the invention
of the atom bomb. The modern incarnation of this mindset is the doctrine of national
security, which lurks in the shadows behind every political and legal attempt to justify
the continuing reliance of the nuclear weapon states on these monstrous weapons, no matter
in what technical and superficially rational terms such justification may be phrased.
In order to arrive at its dissection of the ICJ Opinion, the Appeal Court
had to take a number of preliminary steps. It had to reformulate the defense as consisting
of two separate arguments: First, that the deployment of Trident submarines by the
government was illegal or criminal and that this justified the defendants’ actions
which otherwise would have been criminal. Second, that the defendants acted out of
necessity, which is a defense under Scots law 4. As to the
first point, which relates to the fourth question put to it by the Crown, the Court
categorically stated that "Apart from the defence of necessity, it is not a defence
to a criminal charge that the actions complained of were carried out to prevent another
person committing a crime."5 This may be true as a
general proposition, but it leaves open the question of the magnitude of the crime to be
prevented and its proportion to the crime committed in the attempt at prevention. One can
easily agree that seeing a person picking someone’s pocket in the subway does not
justify killing that person or even assaulting him (although it may justify restraining
him until the arrival of the police, which otherwise would be an offense). But what of the
point raised by the defendants that, as was stated at Nuremberg, citizens have a right, if
not an obligation, to take action to prevent crimes against humanity? The Court dismissed
this as being restricted to the particular facts of the Nuremberg trials and not having
risen to the level of a general principle of customary law ….6
There is, clearly, a symbiotic relationship between the defense of
necessity and the defense of crime prevention. But, while it may be difficult to sustain
the latter without a showing of necessity, the element of crime prevention is not
inherently necessary to sustain the defense of necessity. This is illustrated by the
example given by the Court in paragraph 34:
A vehicle rolling out of control towards a crowd might be intercepted by
someone other than the owner or driver as the only way of preventing death or injury, even
if the actions carried out caused damage to the vehicle. The contingency giving rise to
the danger … appears to be immaterial.
But the Court then goes on to draw a distinction between dangers caused
with and without the intervention of human actors:
… the Government’s actions in relation to Trident must be
regarded as entirely lawful unless the breach of customary international law is
established. If the Government’s actions were thus entirely lawful, notwithstanding
any danger they might create, it is difficult to see how the defence of necessity could be
invoked in relation to the otherwise criminal act of a third party.7
This raises two interesting questions: One, what if, before the ICJ
Opinion, before the Geneva Conventions, before the Hague Conventions, before the
Declaration of St. Petersburg, before, in other words, customary law had crystallized
around the principles violated by nuclear weapons, some government or group or individual
stood poised to use a devilish new method of killing millions of persons, inflicting
genetic damage on untold future generations and destroying the environment of a good part
of the earth’s surface? Would such an action be "entirely lawful"?
And two, if the necessity alleged to justify an otherwise illegal action
is due to human action, what difference does it make whether such action is lawful or
criminal? Take the example of the vehicle rolling toward a crowd. Suppose this is due to
the fact that the driver, upon parking the vehicle on an incline, had failed to engage the
emergency brake. A negligent action, surely, but hardly a criminal one. Thus, while there
are good grounds to accuse the United Kingdom and other nuclear weapon states of illegal
and perhaps criminal action in maintaining and threatening to use nuclear weapons, the
horrendous potential or likely consequences of such conduct should be sufficient in
themselves to justify action to prevent their occurrence.
Be that as it may, the Appeal Court rose, perhaps somewhat too eagerly,
to what it perceived to be the challenge of the defendants to declare Trident a criminal
enterprise, a challenge that was not contained as such in the four questions of the Lord
Advocate’s Reference. In this respect, the Court said it was its "function to
reach its own conclusion as to the rules of customary international law, taking full
account but not being bound by, the conclusions reached by the International Court of
Justice." In fact, however, the Court failed to conduct its own review of customary
law, except as it was discussed in the ICJ Opinion. It also failed to take into account
developments subsequent to the date of the Opinion, such as the "unequivocal
undertaking to accomplish the total elimination of their nuclear arsenals", given by
the nuclear weapon states on May 20, 2000 at the United Nations, all of which reinforce
what the ICJ called the emerging opinio juris of illegality.
At the outset of its analysis, the Court echoes the position of all the
nuclear weapon states that the Opinion is "an advisory opinion, not a judicial
determination of customary international law." But in the same paragraph, the Court
states that "the advisory opinion may be regarded as confirmatory of the then rules
of customary international law."8 It is difficult to
perceive the distinction between a confirmation and a determination of customary
international law. It is a distinction without a difference. Therefore the attempt to
diminish the importance of the ICJ Opinion by emphasizing its advisory nature is bound to
fail.
The Court then proceeds to give a lengthy and reasonably fair account of
the ICJ Opinion, section by section. Many of the Court’s interpretations of the
Opinion, however, are open to challenge:
In Par. 69, the Court states that the ICJ
"distinguished" the right to life in Art. 6 of the International Covenant on
Civil and Political Rights and the genocide convention and that various environmental laws
do not specifically prohibit the use of nuclear weapons. But what the ICJ actually said
was that Article 6 could be relevant by reference to the law of armed conflict, that the
Genocide Convention could be relevant if intent was shown and that there are
"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.
In par. 71, the Court says that pars. 35 and
36 of the ICJ Opinion make it clear that what the ICJ had in mind were weapons of mass
destruction and that, if it had considered that there was a distinct class of "small
scale or tactical nuclear weapons which could be regarded as different … it would no
doubt have made that clear." It is always risky for one court to speculate about what
another court might or might not have done. At any rate, the ICJ’s reference to the
inadequacy of "the elements of fact at its disposal", in the crucial second
subsection of Section E of the dispositif, suggests that the Opinion may have come
out differently had the ICJ been provided with "elements of fact" concerning
small scale or tactical nuclear weapons. Note, in this connection, the ICJ’s
complaint, in par. 94 of its Opinion, that "none of the States advocating the
legality of nuclear weapons under certain circumstances, including the ‘clean’
use of smaller, low yield tactical nuclear weapons, has indicated what, supposing such
limited use were feasible, were the precise circumstances justifying such use."
In par. 72, the Court states that at par. 42 of its opinion the ICJ
acknowledges that the use of nuclear weapons in self-defense cannot be excluded in all
circumstances , but fails to recognize that in the same paragraph the ICJ cautions that
"a use of force that is proportionate under the law of self-defence, 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." The Court does
not explain how the Trident nuclear warheads, which it has described earlier 9
as having an explosive force of "100 to 120 kilotons each, approximately eight or ten
times larger than the weapons used at Hiroshima and Nagasaki", could possibly, under
any conceivable circumstance, be used in accordance with the requirements of humanitarian
law.
In par. 72, the Court avers that the ICJ did not see deployment as a
deterrent as necessarily constituting a threat within the meaning of Art. 2(4) of the
United Nations Charter. What the ICJ actually said was that this would depend on
"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." Here
again, the Court accepts as determinative for the present case the universe considered by
the ICJ – all nuclear weapons, possessed by any state under any circumstance –
rather than the much more limited universe of the Trident weapons, possessing certain
characteristics and deployed by the United Kingdom under certain policies of the UK and
NATO.
Following its parsing of the ICJ opinion leading up to the dispositif,
the Court quotes and analyzes the dispositif itself. It expresses its
puzzlement at the words "should" and "particularly" in Section D
("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.") The choice of
"should" is indeed somewhat puzzling, but the discussion preceding the dispositif
makes it crystal clear that "should" is to be given the same meaning as
"must". There is, however, nothing strange about "particularly". It
could simply mean that ius in bello is more relevant to the illegality of nuclear
weapons than ius ad bellum, both being branches of the law of armed conflict.
Having concluded that no illegality attaches to the deployment of
Trident, the Court then proceeds to deliver itself of the somewhat astounding proposition
that humanitarian law does not apply in time of peace. 10
Presumably this is advanced by way of dictum, since it is not responsive to any of
the four questions addressed to the Court. But for at least two reasons, the proposition
seems to be a case of literalness stretched to absurd limits. First, it ignores the well
known criminal law principles of conspiracy to commit a crime, as well as preparation to
commit a crime, accompanied by some overt act, as being themselves criminal.
"Threatening" and "menacing" are also crimes, at least in
Anglo-American law. The Court cites the ICJ’s reference to "the rules of
international law applicable in armed conflict" to support its view that
"in" literally means that these principles do not apply until armed conflict has
broken out. But the ICJ Opinion is replete with references to the fact that the threat to
use an illegal weapon, or to use a weapon in an illegal manner, is itself illegal. Surely
this rule is not limited to threats made, directly or indirectly, once armed conflict has
started, but must be seen as applying to any period preceding the outbreak of hostilities
.
Second, while the Court disclaims an intent to draw fine distinctions
between war and armed conflict, it seems oblivious to the difficulty of drawing a fine
line between armed conflict and peace. Modern technology is in the process of substituting
the computer for the musket, the laser for the bomb, the disabling of a command and
control center for a siege laid to a town. At any given time, two less than friendly
states may be engaged in any number of covert operations against each other, long before
the shooting starts. We know what "conflict" is, but what is "armed",
in the 21st century?"
Finally, the Court returns to the question of necessity, to say "we
cannot see any substance at all in the suggestion that what the respondents did was
justified by necessity."11 In support of this view, the
Court points out that the action of the respondents – as the defendants are referred
to at the level of the Appeal Court - was planned over a period of months, that what they
did was not a natural or instinctive reaction to some immediate perception of danger, that
there was no likelihood that Trident was about to be used and that what they did could not
have had any conceivable impact upon the supposedly immediate risk.
This is the weakest part of the decision. It contrasts the action of the
defendants to "a youngster brandishing a knife at another a foot away from him, and
perhaps indicating by word and action that he intends to stab him then and there."12 In doing so, it demonstrates how far removed from reality
judges can be and what an uphill battle nuclear resisters face in getting courts to
understand what the ICJ called the unique nature of nuclear weapons, which President
Bedjaoui, who is about to retire from the World Court, called "the ultimate
evil."
Consider what lies behind those four points made by the Appeal Court to
demonstrate that the defendants had not met the test of necessity under Scots law:
They had prepared their action for months What they did was not a natural or instinctive reaction to a perception
of immediate danger There was no likelihood that Trident was about to be used.
What they did could not have had any conceivable impact upon the
supposedly immediate risk. Trident arsenal by seizing a knife about to be used to stab someone. It
would also be utterly foolish to think that it could be done in so simple and direct a
way. "What they did", after years of fruitless peaceful protest, was the most
effective way to express the necessity of doing something.
What lessons can we draw from this unfortunate decision? Let me suggest a
few.
There is no doubt that the importance of the ICJ Opinion has been
diminished by this frontal assault on it by a respected and influential court. The
Scottish decision has exposed its weaknesses and ambiguities and provided ammunition to
those in the legal departments of the nuclear weapons states and their allies who see it
as merely a restatement of humanitarian law principles without conclusive effect on the
question of the illegality of threat and use of nuclear weapons under international law.
On the other hand, we must strive to emphasize the points in the ICJ
Opinion which the Scottish decision sought to minimize or gloss over:
That the threat and use of nuclear weapons must in any circumstance comply
with the requirements of humanitarian law, which makes their legal use as weapons of mass
destruction an impossibility..
That the threat and use of nuclear weapons is and remains generally illegal
under international law and that the so-called exception for an extreme circumstance in
which the survival of a state is at stake is no exception at all, but merely a non
liquet, a decision not to decide.
That, in any case, the declared policy of the nuclear weapon states
does not limit their use to such an extreme circumstance and is therefore inherently
illegal.
The decision illustrates the limits of legal action in resistance to
state crimes, but in no way diminishes the need for such resistance. On the contrary, the
fact that courts are reluctant to do their duty in holding no one above the law should
encourage civil society to redouble its efforts to hold policy makers, even those who
consider "national security" a shield from prosecution, accept the restraints
placed upon them by legal and moral principles.
We are, indeed, in a time of titanic tension between practice and
principle and the course of history is moving, slowly but surely, in the direction of
principle. Great strides are being made in the area of human rights: Witness the progress
toward an international criminal court and the cases brought in the last two years against
three former Presidents, Hissene Sabre of Chad, Milosevic of Yugoslavia and Pinochet of
Chile. The fact that only one of these, the case against Milosevic, is going forward, is
less important than the fact that indictments against them were returned for crimes
against humanity.
There is much work for lawyers to be done. I hope many of you, in your
varied careers, will play a part in doing it.
Peter Weiss
President, IALANA
Tokyo, July 31, 2001
1 The Opinion, some of the judges’
separate statements and a record of the written and oral proceedings can be seen at the
Court’s website, www.icj-cji.org
2 The full text of the decision, as well as a number of
comments, including one by this author, can be seen at the Trident Ploughshares website, www.gn.apc.org. Trident Ploughshares is the organization
which carries on the civil resistance campaign against Trident.
3 Par. 56
4 Par. 33
5 Par. 111
6 Par. 89
7 Par. 35
8 Par. 66
9 Par. 63
10 Par. 95
11 Par. 100
12 Par. 97
|
