Issue No. 42, December 1999
Putting Nuclear Weapons On Trial
"One wonders whether in the light of common sense, it can be
doubted that to exterminate vast numbers of the enemy population,
to poison their atmosphere, to induce in them cancers, keloids and
leukemias, to cause congenital defects and mental retardation in
large numbers of unborn children, to devastate their territory and
render their food supply unfit for human consumption - whether such
acts as these can conceivably be compatible with 'elementary
considerations of humanity'. Unless one can in all conscience
answer such questions in the affirmative, the argument is at an end
as to whether nuclear weapons violate humanitarian law, and
therefore violate international law."
By Angie Zelter
Quoted from the Dissenting Opinion of Judge Weeramantry,
appended to the "Advisory Opinion on the Legality of the Threat or
Use of Nuclear Weapons", International Court of Justice, p. 29,
General List No. 95, July 8, 1996.
On October 21, three women accused of damaging acoustic research
equipment and computers associated with the deployment of British
Trident nuclear submarines were acquitted on the direction of
Sheriff Margaret Gimblett at Greenock, Scotland, after a four-week
In her ruling Sheriff Gimblett concluded that the women "were
justified in thinking that… the threat or use of Trident
could be construed as a threat… and as such is an
infringement of customary international law… ". She went on
to say that "the three accused took the view that if it [Trident]
was illegal, and given the horrendous nature of nuclear weapons,
that they had an obligation in terms of international law, never
mind morally to do the little they could to stop… the
deployment and use of nuclear weapons in a situation which could be
construed as a threat."
Sheriff Gimblett then directed the jury to acquit the women
because, she said, "I have heard nothing which would make it seem
to me that the accused acted with … criminal intent".
This article outlines the legal arguments that formed the basis
of the defence and argues that it is now time to hold Britain and
the other NWS accountable for breaking these laws and undermining
the international legal order. Although the focus is Britain's
deployment of the Trident nuclear weapon system, most of the
arguments are applicable to all countries that possess nuclear
The article also describes the wider body of international law
pertinent to this case. This is important because respect for
international humanitarian law is paramount to the stability and
peace of the global community. At the Nuremberg and Tokyo tribunals
many people were condemned to death for breaking this body of law.
This law is currently being applied in the ad hoc Tribunals for
Rwanda and the former Yugoslavia. Britain has taken an active role
in setting up and supporting these Tribunals and has agreed that
the international legal principles contained in the Statutes of
these Tribunals are part of customary international law. Britain
has also consistently supported the definitions of international
crimes contained in the 1998 Rome Statute of the International
Criminal Court. However, if these same laws are applied impartially
to Britain's present nuclear deterrence policy and to Britain's
current deployment of 100 kiloton yield nuclear warheads, then it
is evident that Britain is preparing to violate the cardinal
principles of international humanitarian law and its leaders and
policy makers may be legitimately suspected of committing war
crimes and crimes against peace. It is the responsibility of the
global community to enforce the law impartially and to apply it to
all states regardless of their power and status. The time has come
to take Britain to the International Court of Justice for breaking
these laws and for undermining the international legal order.
International Law and Nuclear Weapons
The July 8 1996 Advisory Opinion of the International Court of
Justice (ICJ), at para.751, outlines the sources of
international law as they relate to nuclear weapons. It is clear
that nuclear weapons would generally breach all of the
The Protocols Additional to the Geneva Conventions, 1977
because there would be massive incidental losses of civilian lives
and widespread, long-term and severe damage to the environment.
- Declaration of St. Petersburg, 1868 because unnecessary
suffering would be caused and there would be no avoidance or
minimising of incidental loss of civilian life;
- Hague Convention, 1907 because unnecessary suffering
would be caused and there would be no guarantee of the
inviolability of neutral nations;
- Universal Declaration of Human Rights, 1948 because
long-lasting radioactive contamination would interfere with
innocent people's right to life and health;
- Geneva Conventions, 1949 because protection of the
wounded, sick, the infirm, expectant mothers, civilian hospitals
and health workers would not be ensured;
Serious violations of these treaties and declarations are
defined as criminal acts under the Nuremberg Principles,
1946 in that Principle 6 defines crimes against the peace, war
crimes and crimes against humanity. Specifically, Nuremberg
Principle VI (a) defines Crimes against Peace as "Planning,
preparation, initiation or waging of ... a war in violation of
international treaties, agreements or assurances ... Participation
in a common plan or conspiracy for the accomplishment of any of the
acts mentioned". Nuremberg Principle VI (b) defines War Crimes
as "violations of the laws or customs of war" and Nuremberg
Principle VI (c) defines Crimes against Humanity as "murder,
extermination ... and other inhumane acts done against any civilian
population ... when ... carried on in execution of, or in
connection with any crime against peace or any war crime".
In addition, the NPT is being violated now, in that Britain is
not attempting to negotiate immediate and complete nuclear
The ICJ, at para.78, details two cardinal principles of
international law contained in the texts of the above "fabric of
humanitarian law". It explains that "The first is aimed at
the protection of the civilian population and civilian objects and
establishes the distinction between combatants and non-combatants.
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. According to the second
principle, 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. In
application of that second principle, States do not have unlimited
freedom of choice of means in the weapons they use".
The declarations, conventions and treaties listed above form the
core elements of modern customary international law binding on
Britain because it has not persistently objected to being bound by
them. In fact, Britain has consistently endorsed decisions by
international tribunals in which their customary status was
For example, Britain confirmed these as customary laws at the
Nuremberg International Military Tribunal, in the International
Criminal Tribunal for the former Yugoslavia and in the
International Criminal Tribunal for Rwanda.
In other words the international humanitarian principles used to
assess the legality of nuclear weapons are well established in the
international legal order. These customary laws are binding on all
states at all times.
The whole text and tenor of the ICJ make it arguable that even
in extremis, any threat or use of nuclear weapons is likely
to be unlawful.
The ICJ specified, at para.105 2E, that "the threat or use of
nuclear weapons would be generally contrary to the rules of
international law applicable in armed conflict, and in particular
the principles and rules of humanitarian law".
The ICJ also envisioned, at para.94, no circumstances under
which the use of nuclear weapons would not violate international
law saying "none of the states advocating the legality of the
use 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, would be
the precise circumstances justifying such use; nor whether such
limited use would not tend to escalate into the all-out use of high
The ICJ acknowledged, at para.36, the "unique characteristics of
nuclear weapons, and in particular their destructive capacity,
their capacity to cause untold human suffering, and their ability
to cause damage to generations to come".
The ICJ held, at para.79, that the "fundamental rules (of
humanitarian law) are to be observed by all States whether or not
they have ratified the conventions that contain them, because they
constitute intransgressible principles of international customary
In conclusion, the ICJ, as a whole, gives a presumption of
A Possible Lawful Use?
The only possible loophole that may have been left by the ICJ
was when the Court stated, at para.105 2E,
"… in view of the present state of international law
viewed as a whole ... and of the elements of fact at its disposal,
the Court is led to observe that it cannot reach a definitive
conclusion as to the legality or illegality of the use of nuclear
weapons by a State in an extreme circumstance of self-defence, in
which its very survival would be at stake".
This statement must be assessed in light of the judges' appended
statements, many of which were very detailed and closely reasoned.
Six of the 14 judges (Ranjeva, Herczegh, Ferrari Bravo,
Shahahbuddeen, Weeramantry and Koroma) all believe that any threat
or use of nuclear weapons will always be unlawful. Furthermore, two
judges (Bedjaoui and Vereschetin) argued that although the threat
or use of nuclear weapons could not be considered lawful, the
current state of international law does not enable us to
confidently assert that there is a prohibition of this nature. This
reflects a particular doctrine of international law, in which
permission and prohibition have to be established individually and
are not simply by the demise of the other; this follows from (they
believe) the incomplete nature of international law. Judge
Bedjaoui, President of the ICJ, specifically wrote his Declaration
to explain why he used his casting vote for the adoption of
paragraph 105 2E. At para.11 of his Declaration he states very
clearly, "I cannot sufficiently emphasize the fact that the
Court's inability to go beyond this statement of the situation
cannot in any way be interpreted as a half-open door to the
recognition of the legality of the threat or use of nuclear
weapons". He also stated, at para.9, that "at no time did
the Court lose sight of the fact that nuclear weapons constitute a
potential means of destruction of all mankind". At para.20 he
says, "The very nature of this blind weapon therefore has a
destabilizing effect on humanitarian law which regulates
discernment in the type of weapon used".2 In summary
8 a majority of the judges believed that any threat or use of
nuclear weapons could not be considered lawful.
Illegality of British Nuclear Weapons
The ICJ was asked to consider a general question and did not
have the "elements of facts at its disposal" to enable it to
be more specific. However, if we apply the principles of
international law to the British Trident system presently deployed,
along with the current British deterrence policy as outlined in the
Strategic Defence Review of 1998 and the NATO Strategic Concept
Document, and place this within the context of the destructive
capacity of the warheads and their likely targets then it is quite
clear that British Trident is unlawful. Trident nuclear warheads
are 100 to 120 kilotons each and have assigned to them military
targets in and around Moscow. Such use of these particular nuclear
weapons could not distinguish between civilian and military
targets, nor are they intended to do so. The reason nuclear weapons
are targeted in this way is to try to deter war by threatening mass
destruction. The tragic flaw in this logic being that if nuclear
deterrence fails and Britain's bluff is called, the threat of mass
destruction must be carried out. It follows that the purpose of
Trident is to terrorise and to create "incalculable and
unacceptable" risks.3 Indeed, the point of
"nuclear deterrence", however it is fudged, is to threaten
Many citizens and organisations have asked for examples of what
Britain would consider to be a lawful use of its Trident nuclear
weapons. They have never been given a straight answer. They believe
that Trident nuclear weapons are being used to frighten and
intimidate the 'enemy' and to threaten them with mass destruction.
This is, they contend, unlawful. There might conceivably be some
uses of a one-kiloton nuclear warhead targeted on military forces
in the middle of an ocean, or at a tank in the middle of a desert,
which might be considered lawful, but conventional weapons would
suffice for the job without carrying the unconscionable risk of
nuclear escalation. Besides which, this is not what Trident is
configured to do. Because Britain has not reduced all the warheads
on British Trident submarines to one kiloton or below, and because
most, if not all, targets are in the vicinity of towns and cities
with civilian populations, any targeting of these places with the
warheads currently deployed on Trident would lead to large-scale
loss of civilian life and thus be unlawful.
Therefore, the British Trident system is an immediate and
ongoing danger to life on Earth, a threat to international peace
and unlawful within the terms of the ICJ.
The ICJ held, at para.42, that "a use of force which 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
The main stumbling block for Britain can be found by examining
the oral presentation given by Sir Nicholas Lyell to the ICJ on
November 15, 1995. This illustrates the mind-set of a state so used
to the thinking behind nuclear deterrence that it has forgotten
what international humanitarian law is about. After admitting that
"there is no doubt that the customary law of war does prohibit
some uses of nuclear weapons, just as it prohibits some uses of all
types of weapons", he then undermines this by elaborating a
situation in which states are faced with invasion by overwhelming
enemy forces: "If all other means at their disposal are
insufficient, then how can it be said that the use of a nuclear
weapon must be disproportionate? Unless it is being suggested that
there comes a point when the victim of aggression is no longer
permitted to defend itself because of the degree of suffering which
defensive measures will inflict". 4
Yet this is the point of international humanitarian law. It is
intended to limit the terrible effects of war and to ensure that
there is a world left after a conflict ends. This means
self-restraint even in the midst of justified self-defence.
According to the President of the Court, Judge Bedjaoui,
"self-defence - if exercised in extreme circumstances in which
the very survival of a State is in question - cannot engender a
situation in which a State would exonerate itself from compliance
with 'intransgressible' norms of international humanitarian law ...
It would thus be quite foolhardy unhesitatingly to set the survival
of a State above all other considerations, in particular above the
survival of mankind itself". 5
Even Christopher Greenwood, who appeared for Britain at the ICJ
Hearings, has argued, "To allow the necessities of self-defence to
override the principles of humanitarian law would put at risk all
the progress in that law which has been made over the last hundred
years or so". 6
Moreover, present British policy statements show that Britain
does not limit its use of nuclear threats to "extreme circumstances
of self-defence". The government clearly recognises that Britain is
not in danger of a threat to "its very survival".
The Strategic Defence Review conducted by the government states,
"The end of the Cold War has transformed our security environment.
The world does not live in the Shadow of World War. There is no
longer a direct threat to Western Europe or the United Kingdom as
we used to know it, and we face no significant military threat to
any of our Overseas Territories". 7
Given that the survival of Britain is not presently in question,
the current deployment of Trident nuclear submarines is an unlawful
threat even if the government were to vouch that there is only one
nuclear warhead of below one kiloton deployed, let alone the 144
warheads of up to 120 kilotons each that could be deployed.
Defence Of Vital Interests
It is clear that British nuclear weapon deployment and policy is
not purely concerned with self-defence or even with retaliation
against a nuclear attack from another NWS, but is also "to defend
our vital interests to the utmost" as expressed in the Rifkind
The Strategic Defence Review9 specifically sees
military power as "a coercive instrument to support political
objectives" which the rest of the report explicitly identifies as
economic and oil-related. The government says in the Review that
Trident must perform a "sub-strategic role" and that they have
plans to use "low-yield" warheads against non-nuclear "rogue"
regimes in reprisal for attacks against Britain's vital interests
anywhere in the world. Yet this is unlawful.
As Lord Murray (a former Lord Advocate of Scotland) pointed out,
even a one kiloton bomb "would flatten all buildings within half a
kilometre with up to 50% fatalities up to 1 kilometre and a
prevailing wind could carry fall-out as far as 25 km downwind".
The deployment of nuclear weapons is perceived as an active
threat, especially during times of crisis. This view is
corroborated by Judge Schwebel when he reports on testimony from
Ambassador Ekeus in the Senate Hearings on the Global Proliferation
of Weapons of Mass Destruction which shows that Iraq perceived
there to be a threat to use nuclear weapons against it in
In the February 1998 Iraq Crisis there was also talk of the
possible use of nuclear weapons against Iraq. Any such use would
have been unlawful because neither Britain nor the United States
was under threat of obliteration by Iraq. To stress the words used
in the ICJ, at para.105 2E, the only possible lawful use, and thus
lawful threat of use, of nuclear weapons by a state might possibly
be "in an extreme circumstance of self-defence, in which its
very survival would be at stake". This does not include
protecting cheap oil supplies overseas or ensuring the survival of
its troops in a foreign land.
And yet in the Commons Debate of February 17, 1998, Foreign
Secretary Robin Cook said that Saddam Hussein "should be in no
doubt" that if he were to use chemical weapons against joint
British-US air strikes "there would be a proportionate response".
12 Interviewed on BBC Radio 4 on February 18 Defence
Secretary George Robertson was given an opportunity to deny the
nuclear option and he did not. All these were signals suggesting
that nuclear weapons could be considered. They were also meant to
be understood as such.
The whole purpose of nuclear deterrence is to create uncertainty
about intentions. This means that the British Government has to
persuade its 'enemies' that it might be willing to break
international law. For instance, in the 1991 NATO Strategic Concept
Document, Article 38 asserted that nuclear weapons are essential
and permanent because they "make a unique contribution in rendering
the risks of any aggression incalculable and unacceptable".
If the effect of a nuclear weapon is incalculable and
unacceptable then it also follows that it is unlawful. Nuclear
weapons are useful only in so far as they can be used to make
unlawful threats. Nuclear deterrence may be official British policy
but that does not make it lawful.
Also implicit in the ICJ statement where the wording is "its
very survival" is the view that a state cannot use its nuclear
weapons to protect another state whose survival is at stake.
British and NATO policy continues to be that nuclear weapons could
be used in collective self-defence. It follows that Britain's
reservation of its right to use nuclear weapons in defence of other
states, such as when Iraq invaded Kuwait, is a violation of
It is a general principle of law recognised by civilized nations
that a person is presumed to intend the necessary and foreseeable
consequences of their actions.
Any individual who ordered the use of the British nuclear
weapons which are currently deployed on
Trident submarines would have committed a war crime as
determined by Article 8 (2) (b) parts iv and v of the International
Criminal Court Statute. "War crimes means ... serious violations
of the laws and customs applicable in international armed conflict,
within the established framework of international law, namely, any
of the following acts; ... (iv) Intentional launching an attack in
the knowledge that such an attack will cause incidental loss of
life or injury to civilians or damage to civilian objects or
widespread, long term and severe damage to the natural environment
which would clearly be excessive in relation to the concrete and
direct overall military advantage anticipated, (v) Attacking or
bombarding, by whatever means, towns, villages, dwellings or
buildings which are undefended and which are not military
objectives".14 The 100 kiloton warheads on Trident
are each eight times more powerful than the bomb used against
Hiroshima. That destruction in Hiroshima was ruled a war crime in
the Shimoda Case.15
According to the ICJ, at para.105 2D, a threat or use of nuclear
weapons must "be compatible with the requirements of the
international law applicable in armed conflicts". It was
confirmed, at para.78, that "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 ... States do not have unlimited freedom of choice of means
in the weapons they use".
The threat to target civilians with nuclear weapons, whether as
an unprovoked attack or as a reprisal, is therefore unlawful. In
the oral statement that Britain gave to the ICJ on November 15,
1995, Sir Nicholas Lyell admitted that ".... even a military target
must not be attacked if to do so would cause collateral civilian
casualties or damage to civilian property which is excessive in
relation to the concrete and direct military advantage anticipated
from the attack".16
However, as the ICJ points out, at para.35, "By its very
nature ... nuclear weapons ... release not only immense quantities
of heat and energy, but also powerful and prolonged radiation ...
These characteristics render the nuclear weapon potentially
catastrophic. The destructive power of nuclear weapons cannot be
contained in either space or time. They have the potential to
destroy all civilisation and the entire ecosystems of the
planet". This general statement about nuclear weapons is
equally true when applied to British nuclear weapons in
Faslane in Scotland is the primary base used by Britain's four
nuclear-armed Trident submarines. There is always one Trident
submarine on 24-hour patrol at all times. Each Trident submarine
has 48 warheads of 100 to 120 kilotons each. A 100-kiloton warhead
is too powerful to distinguish between civilian and military
targets and its long lasting effects cannot be contained within
space or time and therefore violates international law.
"Today the scale of Britain's nuclear capability and the way it
is deployed suggest that it remains oriented principally against
Russia. An attack using the warheads on one submarine against
likely targets in the Moscow area would result in over 3 million
deaths ... and ... there would also be massive nuclear fallout over
urban areas. Thousands of people would die over a 4 to 12 week
period from this fallout". 17 Other potential targets
are Russian Northern Fleet submarine bases. In Britain there are
towns and villages close to every key submarine facility as is the
case with Faslane, which is near the civilian population in
Glasgow. There are also civilian populations close to Russian bases
near Murmansk. Trident warheads exploding above these bases would
cause devastation over a wide area and in each case would result in
thousands of civilian casualties in urban areas. The areas affected
would be dangerous to rescue staff and civilians who would want to
use the area in future.
Preparations for War Crimes
The preparation for war crimes is itself a war crime, as made
most explicit in the International Criminal Court Statute Article
25 (3). "In accordance with this Statute, a person shall be
criminally responsible and liable for punishment for a crime within
the jurisdiction of the Court if that person: ...(c) For the
purpose of facilitating the commission of such a crime, aids, abets
or otherwise assists in its commission or its attempted commission,
including providing the means for its commission".
This is a culmination of various precedents such as the last
paragraph of Article 6 of the Charter of the International Military
Tribunal at Nuremberg on "instigators and accomplices
participating in the formulation ... of a common plan or
Just as the use of British nuclear weapons would be illegal and
criminal so is the threat to use them, which is what Trident
deployment and the British Government's reliance on nuclear
deterrence is all about.
Para.48 of the ICJ states, "Possession of nuclear weapons may
indeed justify an inference of preparedness to use them. In order
to be effective, the policy of deterrence ... necessitates that the
intention to use nuclear weapons be credible. Whether this is a
'threat' contrary to Article 2, paragraph 4, [of the UN Charter]
depends upon whether the particular use of force ... would
necessarily violate the principles of necessity and
proportionality. In any of these circumstances the use of force,
and the threat to use it would be unlawful under the law of the
Even US Judge Schwebel explains that states have threatened to
use their nuclear weapons "by the hard facts and inexorable
implications of the possession and deployment of nuclear weapons;
by a posture of readiness to launch nuclear weapons 365 days a
year, 24 hours of every day; by the military plans, strategic and
tactical, developed and sometimes publicly revealed by them; and,
in a very few international crises, by threatening the use of
nuclear weapons. In the very doctrine and practice of deterrence,
the threat of the possible use of nuclear weapons inheres".
Para.47 of the ICJ makes it quite clear that it is illegal to
threaten something which is itself illegal, "If the envisaged
use of force is itself unlawful, the stated readiness to use it
would be a threat prohibited under Article 2, paragraph 4" of
the UN Charter. Britain possesses nuclear weapons, of a size that
cannot be used discriminately, which are constantly deployed on
submarines, ready to be used, and has made statements of
conditional willingness to use them in British policy documents.
This "stated readiness to use" its nuclear weapons is exactly the
kind of threat that is prohibited under Article 2 of the UN
British nuclear warheads of 100 kilotons could never be used in
conformity with the principles of necessity and proportionality,
therefore continuous active deployment, along with the stated
readiness to use them when necessary, is an illegal threat to use
nuclear weapons. This incurs individual criminal responsibility in
international law. Policy makers, state employees, researchers and
technicians are engaged in the planning and preparation of gross
violations of customary humanitarian law, and so committing a
further crime under international law
Crimes Against Peace
The ICJ, at para.99, appreciated "the full importance of the
recognition by Article VI of the Treaty on the Non-Proliferation of
Nuclear Weapons of an obligation to negotiate in good faith a
nuclear disarmament". It ruled unanimously, at para.105F,
"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". At
para.99 it stated, "The legal import of that obligation ... is
... to achieve a precise result - disarmament in all its
It is apparent that none of the NWS has discharged these
obligations of both customary and conventional international law.
This is in fact a Crime against Peace as defined in the Nuremberg
Principle VI (a), which says that Crimes against Peace are,
"Planning, preparation, initiation or waging of ... a war in
violation of international treaties, agreements or assurances ...
Participation in a common plan or conspiracy for the accomplishment
of any of the foregoing". 21
Britain has made clear it has no immediate intention of
eliminating its Trident system. The Strategic Defence Review
specifies plans for upgrading Trident in the medium term and
keeping options open for a replacement in the long term. Recent
press revelations and a report by Alan Simpson MP presents evidence
of the new refurbishment programme at the Atomic Weapons
Establishment at Aldermaston costing one hundred and fifty million
pounds Sterling and of a linkage with the US 'son of Trident'
programme to upgrade nuclear warheads. There is also proof of
increased scientific collaboration between Britain, France and the
US. Simpson's report concludes, "there is strong evidence that
Britain is currently involved in the development of prototype
designs to replace the current Trident nuclear warhead".
Nor has Britain been working in good faith within the UN for
nuclear disarmament resolutions. For instance, last year Britain
voted against the resolution, "Towards a Nuclear Weapon-Free World:
The Need for a New Agenda". Ian Soutar, the British Ambassador to
the UN, said that the resolution contained measures that were
"inconsistent with the maintenance of a credible minimum
deterrent". This illustrates the point.
Britain's refusal to disarm Trident flouts Article VI of the
NPT. The continuing development of new nuclear weapons is also a
breach of Article VI and constitutes a violation of international
The British Government has frequently been asked but has never
explained to the ICJ or to the British public how it could possibly
use its nuclear weapons legally. It has not even been able to
outline one hypothetical example. The government has, in fact, been
very careful to say that it could never foresee the precise
circumstances and could therefore not determine the legality until
the time came to use them. It is clear that the British Government
has to date been unable and unwilling to open itself to independent
The form of words the government usually uses is: "the legality
or otherwise of any specific use of any nuclear weapons ... can
only be determined in the light of all the circumstances applying
at the time such use is being considered. It is impossible to
anticipate in advance with any confidence the exact circumstances
which might arise, and to speculate on particular hypothetical
cases would serve no purpose". 23
It is absurd to think that, if no such legal scrutiny and
exercises had taken place before, any thorough legal scrutiny of an
actual use of nuclear weapons could take place in the heat of a war
of self-defence in which the very survival of Britain might be at
stake. According to the ICJ this is the only circumstance in which
nuclear weapons might justifiably be used. The fact that the
British Government cannot identify a single hypothetical case that
could be presented into the public domain for independent legal
scrutiny suggests there are none.
It is pertinent in this last year of the UN Decade of
International Law to remember that the first UN Resolution passed
called for nuclear weapons to be outlawed. Over five decades later
the world is at a crossroads. Research for new and deadlier nuclear
weapons continues with plans to place them in space. The
non-proliferation regime is breaking down rapidly. The world faces
formidable social and environmental crises that require
co-operative non-violent conflict resolution. The hypocrisy of the
NWS, who expect international law to be applied to others but not
to themselves, has destabilised the global community for decades
and deeply undermines the international legal order. It is time for
the majority of law-abiding states to take the first step in
implementing the ICJ Advisory Opinion by taking Britain to the
Court and putting its Trident nuclear weapons on trial.
Notes and References
1. Advisory Opinion on the Legality of the Threat or Use of
Nuclear Weapons, International Court of Justice, General List No.
95, para.75, July 8 1996. See also transcript of Sheriff Gimblett's
ruling in Documents & Sources, and the related report in News
2. President Judge Bedjaoui's Declaration, paragraphs 9, 11,
20 & 22. Appended to the Advisory Opinion on the Legality of
the Threat or Use of Nuclear Weapons, International Court of
Justice, General List No. 95, July 8, 1996.
3. 1991 NATO Strategic Concept Document, Article 38.
4. Nicholas Lyell, November 15, 1995, Oral Statement, CR
95/34, p.46 & 47. Appended to the Advisory Opinion on the
Legality of the Threat or Use of Nuclear Weapons, International
Court of Justice, General List No. 95, July 8, 1996.
5. Op Cit, Bedjaoui, ICJ, 1996.
6. Christopher Greenwood, International Committee of the Red
Cross No.316, p.65-75, January 1997.
7. UK Strategic Defence Review, Ch.2.23, July 1998.
8. "UK Defence Strategy: A Continuing Role for Nuclear
Weapons?", Malcolm Rifkind, Speech, London, November 1993.
9.Op Cit, UK Strategic Defence Review, 1998.
10. Nuclear Weapons and the Law, Lord Murray, Oxford, October
11. The Dissenting Opinion of Vice-President Judge Schwebel,
p.1 & 12, Appended to the Advisory Opinion on the Legality of
the Threat or Use of Nuclear Weapons, International Court of
Justice, General List No. 95, July 8, 1996.
12. Hansard, House of Commons Debate, February 17,
13. NATO Strategic Concept Document, 1991.
14. UN Doc. No.A/CONF.183/9 Rome Statute of the International
15. Ryuichi Shimoda et al vs. The State, Tokyo, December
16. Op Cit, Lyell, 1995, in ICJ, 1996.
17. "Trident, Britain's Weapon of Mass Destruction", John
Ainslie, p.1. March 1999.
18. Op Cit, UN Doc. No.A/CONF.183/9.
19. Charter of International Military Tribunal at Nuremberg,
20. Op Cit , Schwebel, ICJ, 1996.
21. The Nuremberg Principles, VI (a).
22. "The Next Chevaline Scandal?" Alan Simpson MP and the
Campaign for Nuclear Disarmament, August 11, 1999.
23. Letter to Angie Zelter, Hazel Finch, Ministry of Defence,
October 23, 1997.
Angie Zelter is a long time peace campaigner and the
founder of Trident Ploughshares 2000. In addition to her acquittal
for damaging Trident-related equipment, Ms Zelter was also
acquitted in 1996 of conspiring to cause criminal damage when her
"Seeds of Hope Ploughshares" group damaged a British Aerospace Hawk
jet to prevent it from being exported to Indonesia where it would
probably have been used in military attacks on East Timor. She used
similar international legal arguments in both Ploughshares cases.
More information is available about Trident Ploughshares 2000 at
their website: http://www.gn.apc.org/tp2000/
© 2000 The Acronym Institute.
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