In responding to A right to use nuclear weapons? by Achilles Skordas I should declare my interest. During twenty years in Britains Royal Navy, I navigated nuclear-armed strike jets with a target in Russia and then anti-submarine helicopters equipped with nuclear depth bombs.
In 1991, concern about possible use of nuclear weapons in the first Gulf War by Israel or the US made me speak out against them. I became UK Chair of the World Court Project, an international campaign by citizen groups, which helped persuade the United Nations (UN) General Assembly to request an advisory opinion from the International Court of Justice on the legal status of the threat or use of nuclear weapons.
On 8 July 1996, the Court delivered its opinion, which confirmed that any threat, let alone use, of nuclear weapons would generally break international humanitarian law, including the Nuremberg Principles. With even possession of other weapons of mass destruction such as chemical and biological weapons already prohibited by enforceable global treaties, this was to be expected.
After all, the uniquely indiscriminate, long-term effects of radioactivity, such as genetic damage, on top of almost unimaginable explosive violence make nuclear weapons by far the most unacceptable terror devices yet invented.
In light of the fact that five of the fourteen judges (one had died just before the case was heard) were from recognised nuclear-armed states also the five permanent members of the UN Security Council (namely the US, Russia, China, France and the UK) it was encouraging that a verdict of general illegality was handed down. Achilles Skordas is wrong to claim that the Court recognised that the survival of a state justifies its recourse to nuclear weapons: it could not decide on this.
Analysis of each judges position on use in the extreme case of self-defence reveals that seven were uncertain, four thought it would be lawful, and the remaining three concluded that the question did not arise because any use was already unlawful under the existing rules of international law applicable in armed conflict.
That adds up to ten judges for illegality or uncertain, and only four in favour of what in effect is Skordass proposal. Moreover, the Court unanimously agreed that, even in such an extreme case, any use of nuclear weapons still must comply with international law which Skordas acknowledges would be impossible.
He is wrong, therefore, to claim that the Court offered no legal guidance to nuclear states. On the contrary, the Court not only indicated that in almost any conceivable case use of nuclear weapons would be unlawful. It went further by placing the burden of proof as to legality on the nuclear states, because they had neither specified any legal circumstance for use, nor convinced it that limited use would not escalate into the all-out use of high-yield nuclear weapons.
Because the path to prohibition seems blocked, Skordas proposes that a conditional entitlement to use nuclear weapons be granted to unspecified nuclear-armed states. He stipulates that the following conditions must be met:
- an imminent attack threatens the survival of the state;
- the UN Security Council decides that the fundamental interests of the international community are also at stake.
However, he then rashly asserts that this broadly accords with the current US national strategy of pre-emption as deterrence without actual recourse to the use of force, which seems to fit perfectly to the objective of maintaining international peace and security.
In his final paragraph, he sees the west as carrying the burden to make clear that neither Kashmir nor Baghdad nor Pyongyang will be permitted to wreck the efforts for peace, human rights and prosperity of the world, and concludes that an entitlement to use nuclear weapons represents a final security net for the international community.
Who can be trusted?
Is this a kite being floated to test reaction to an outrageous new justification for retention of nuclear weapons by the US, UK and France? What would Russia and India, let alone China, think of it? Where would Achilles Skordas place Pakistan, currently a sudden expedient US ally, in his scheme? How about Israel, which is widely believed to have over 200 nuclear weapons and has flouted the will of the UN Security Council far longer than Saddam Hussein? Moreover, if the World Court has advised that the threat to use nuclear weapons would generally be unlawful, then surely any right to do this must also be unlawful?
By proposing that a right to use nuclear weapons be conferred (by whom?) on selected states sympathetic to the west, Skordas unwittingly exacerbates the existing nuclear apartheid system of the Non-Proliferation Treaty (NPT). Besides, the NPT is about to collapse following the Bush administrations decision to threaten use of nuclear weapons, even pre-emptively, against non-nuclear signatory states such as Iraq and Iran.
Along with new plans to modernise its still massive nuclear arsenal, the US clearly has no intention of honouring its unequivocal undertaking at the 2000 NPT Review Conference to get rid of it. This is an incitement to nuclear proliferation, which has been understood by North Korea and Iran.
The nature of nuclear deterrence
At the heart of Achilles Skordass proposal is the myth that threatening to use nuclear weapons guarantees security for a nuclear-armed state, let alone the international community. President Bush himself has admitted publicly that he doubts nuclear deterrence would work against what he rightly sees as the greatest threat to Americans: extremists armed with weapons of mass destruction.
That is why his administration has adopted a policy of preventive counter-proliferation by all military means, including nuclear weapons. The drawback is that, in addition to being a contradiction in terms, it greatly increases the risk of nuclear weapons use, because the most likely proliferators are least likely to be deterred.
The other problem relates to the fundamental nature of nuclear deterrence. Richard Falk, a US expert on international humanitarian law, is uncompromising: Nuclear weaponry and strategy represent terrorist logic on the grandest scale imaginable.
Nuclear deterrence is about threatening the most indiscriminate violence possible, unrestrained by morality or the law. It is therefore the antithesis of maintaining international peace and security. That is why state-sponsored nuclear terrorism must be rejected and outlawed.
Skordas does not mention the final sub-paragraph of the World Courts advisory opinion, which was unanimously supported: 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.
The planned US and UK shock and awe air bombardment against Iraq could provoke Saddam Hussein into calling the bluff of the US, UK or Israel over their threats to use nuclear weapons in reprisal for or even to pre-empt an Iraqi chemical or biological attack. If so, then the world outrage following any use of nuclear weapons could generate the political will to demand that negotiations begin on an enforceable global treaty to ban them. Whatever happens, nuclear weapons are utterly useless in countering terrorism, and nuclear deterrence must be exposed as the immoral and illegal fallacy that it is.
The new abolitionists?
With both obstructions to the emergence of a global prohibition on nuclear weapons crumbling namely, nuclear deterrence and the NPT Achilles Skordas is too pessimistic. Following the World Courts advisory opinion, a model Nuclear Weapons Convention was drafted by an international team of lawyers, scientists and disarmament experts, and circulated as a UN discussion document. It offers a plan for the elimination of nuclear weapons in a series of graduated, verifiable steps on the same lines as the widely-acclaimed Chemical Weapons Convention. All that is missing is political will.
There is an interesting historical parallel, with slavery. When the campaign to abolish slavery began in Britain in 1785, slavery was accepted in much the same way as nuclear weapons now are by the establishments of a small group of predominantly western/northern states and their allies. Three of the leading slaving states are now the leading guardians of nuclear deterrence dogma: the US, UK and France.
Pro-nuclear advocates argue that nuclear weapons are a necessary evil, cost-effective, not against the law, and anyway there is no alternative. These were the slavers arguments. They were outmanoeuvred by a small group of committed campaigners, who surprisingly focused on the illegality of slavery not just its cruelty. For the first time, the law and public opinion were harnessed on a human rights issue. This was what forced British politicians to vote against a system which underpinned their wealth.
Perhaps the moment has come to channel the massive upsurge of anti-war feeling in the US, UK and France into a new abolition campaign, where the prize this time is to free humankind and the planet from the terror of threatened nuclear annihilation?
