For the first time since the end of the cold war the possibility of someone, whether a state or not, using nuclear weapons is real. The potential war against Iraq, fought at least officially over the possession of weapons of mass destruction (WMD); the standoff between India and Pakistan over Kashmir; the unresolved showdown on the Korean peninsula; and the efforts of transnational terrorist networks to manufacture or acquire such weapons together, these dangerous crises mark the new nuclear age that has succeeded the USSoviet Union confrontation of the post 1945 era.
The response of the United States to the new strategic environment has been formulated in two recent White House papers. The first paper, concerning the National Security Strategy of the United States of America (September 2002), marked the adoption of the pre-emptive strike doctrine: While the United States will constantly strive to enlist the support of the international community, we will not hesitate to act alone, if necessary, to exercise our right of self-defence by acting pre-emptively against such terrorists, to prevent them from doing harm against our people and our country.
The second paper, the National Strategy to Combat Weapons of Mass Destruction (December 2002), referred to the eventual recourse to a nuclear strategy: The United States will continue to make clear that it reserves the right to respond with overwhelming force including through resort to all our options to the use of WMD against the United States, our forces abroad, and friends and allies (my italics). The same report makes clear that pre-emption does not replace deterrence: As a consequence, we require new methods of deterrence. The doctrine of pre-emptive defence constitutes, in fact, the new form of deterrence against rogue states and terrorist entities.
The question is, whether recourse to nuclear strategy would be lawful under these circumstances?
At the highest level of decision, legality matters
Any decision to use nuclear weapons, at least by a state, would have to be taken at the highest level of the national political authorities after consideration of a wide range of factors. Except for those dictatorial regimes that do not recognise the foundational fairness of the contemporary international system, there are reasons to believe that international law would be among the major factors to be considered by decision makers.
At the risk of appearing callous, let us for a moment exclude any other determinant, either the catastrophic consequences of the use of these kinds of weapons or the specifics of any given crisis, and consider the normative horizon at the moment someone is called upon to decide whether to use nuclear weapons.
The leadership of a power with nuclear weapons would try to avoid, as far as possible, the high political cost of being accused of war crimes or crimes against humanity, or genocide. An illegal use, or threat of use, of nuclear weapons would, moreover, seriously destabilise at least the political structure of the international community and thus fatally undermine the legitimacy and privileged status of these states in the system.
It is hard to imagine a permanent member of the United Nations (UN) Security Council being able to effectively exercise its prerogatives under the charter for the maintenance of international peace and security (or lecturing the world about democracy and human rights) after it has made an illegal use of nuclear weapons.
But what does international law say?
The vital point here is that, even for extremely unilateralist nuclear states, legality matters though its relative weight in comparison to other factors is of course open to debate. Far trickier is the issue of which one of the possible interpretations of international law is more appropriate for preventing states having recourse to nuclear weapons?
In 1996, the International Court of Justice (ICJ) responded to two requests for advisory opinions, the first by the World Health Organisation (WHO) and the second by the UN General Assembly, concerning the legality of the threat or use of nuclear weapons. The Court decided that it had no jurisdiction to answer the first request and gave an ambiguous answer to the second.
The Courts opinion to the UN General Assembly stressed that there existed no universal rule of international law specifically authorising or prohibiting the use of nuclear weapons. It further stated that use, or threat of use, of nuclear weapons that contravenes the prohibition of the use of force and fails to meet all requirements of the right of self-defence is unlawful. The opinion also underlined that use of nuclear weapons should be compatible with international humanitarian law. So far, so predictable. The further conclusions were wholly unexpected.
In the last and fairly obscure part of the operative part of the opinion, the Court stated that the threat or use of nuclear weapons would generally be contrary to international humanitarian law; but 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. After 104 paragraphs of detailed technical legal analysis, the cardinal standpoint of the ICJ is that international law cannot guide the states conduct during a nuclear crisis. Frustrating, indeed.
The Court tried to avoid a clear answer, hoping, perhaps, to strengthen the taboo against nuclear weapons by excluding the issue from the formal legal reasoning. It miscalculated, in that the opinion is addressed not to individuals capable of moral judgement, but state bureaucracies inclined to get the best out of an opaque ruling.
If the Court refuses to formulate the response of international law to the most crucial question concerning the use of force, we can expect powerful states to fill the vacuum, opportunistically with their deeds and statements at moments of crisis. States using nuclear weapons would argue that they exercise a right of self-preservation, derived from the assessment that their survival is at stake.
Inside a gap-in-law, fears could become rights
The ICJs semantics renationalises the question of nuclear weapons in the period of globalisation, depoliticises the question of global threats the international community faces in the 21st century, and is reminiscent of an international system composed exclusively of sovereign states.
In effect, the Court recognises a single reason justifying recourse to nuclear weapons: the survival of the state. Moreover, it is unclear, whether international humanitarian law should be fully respected in the extreme circumstance of self-defence. Ruthless leaders are thus encouraged to promote victimisation syndromes and fuel nationalist fears. The gap-in-law, in fact an occult justification clause, could mislead states into believing that they can transform their fears into rights.
Filling the gap-in-law: prohibition or conditional entitlement?
But what could the alternatives be to this gap-in-law? Two are immediately apparent: a complete prohibition of these weapons, and a conditional entitlement to threaten with or use them.
Prohibition
First would be a universal norm prohibiting the threat, use or possession of nuclear weapons under any circumstances. This sounds plausible. Due to the specific nature of these weapons, the distinction between legal and illegal use appears irrelevant. In the ICJs words, whether nuclear weapons are used legally or illegally, their effects on health are the same. A general prohibition corresponds more to common sense than any other alternative.
However, a more careful look reveals the difficulties of this approach. Such a prohibition does not exist in treaty law, so it should be looked for in international custom. Nonetheless, the emergence of a customary prohibition is obstructed by the practice of deterrence and by the Non-Proliferation Treaty, which have been the twin pillars of international security during the cold war and afterwards.
Even assuming that a prohibitory norm existed at some point in time, or is revived by the Court, it is questionable whether it would be effective and capable of withstanding the pressure of a contrary state practice for long. Under the realist assumption that nuclear-weapons states would certainly refuse to disarm or abolish their nuclear defence planning and disband their nuclear defence staff, the norm would progressively lose its force and become obsolete, sooner or later. Finally, even if the norm would be valid for law-abiding states, it would certainly not deter rogue states or terrorists from acquiring or using WMD, if they had the chance to do so.
Conditional entitlement
The second possible replacement for the gap-in-law is that of conditional entitlement. A state could have recourse to nuclear strategy for self-defence, only if the fundamental interests of the international community would also be at stake. If an ongoing or imminent armed attack threatens not only the territorial integrity of a state, but also major interests of the international community, recognised as such by the UN Security Council, the threat or use of tactical nuclear weapons could be eventually justified.
For instance, if a racist fundamentalist regime invades and occupies states or strategic regions and, following that, implements a policy of ethnic cleansing and genocide; or if an aggressor destroys resources vital for the functioning of the international economy; or if state or non-state actors threaten or actually use WMD against population centres, a nuclear response could be legitimate, if no other means were available for suppressing the threat.
The principles of the US national strategy that seek to contain and suppress postmodern threats against the international system do not seem to contradict the above assumptions. In particular, the strategy of pre-emption as deterrence without actual recourse to the use of force seems to fit perfectly to the objective of maintaining international peace and stability.
However, a limited regional conflict would not justify such steps. The UN Security Council has disapproved the acquisition of nuclear weapons by India and Pakistan, because it is incompatible with the broader interests of the international community. If the mere possession of such weapons is illegal, their use following a clash over Kashmir would be illegal under any circumstances. Generally, states that manufacture nuclear weapons in blatant violation of the Non-Proliferation Treaty, including North Korea, are deprived of legitimacy to pursue a nuclear strategy by invoking an alleged right of self-preservation of the state.
But the story does not end there. Beyond this original legitimacy, nuclear strategy should be exercised in strict compliance with international humanitarian law and in accordance with the principle of proportionality. Any deviation from the law of armed conflict would transform the act of self-defence or the action for the restoration of peace into a crime against humanity or into an act of aggression.
The question, of course, arises whether, considering the nature of nuclear conflict, it is practically possible to fulfil these conditions. The answer would probably be no. Control could be expected to be lost during a nuclear conflict and, thereupon, uncertainty over the legality of specific strikes would lead to further escalation resulting in the violation of proportionality and humanitarian law. The use of nuclear weapons as a last resort would only be necessary from a legal point of view, if no other means were appropriate to suppress the threat to the foundations of the international community; even such a use, however, could be non-proportionate regarding its consequences upon civilians and the environment.
A presumed right to use is the best route to prevention
Then the original question completes a full circle: what is the point of constructing a right to use nuclear weapons in some circumstances as a balancing exercise at the edge of legality and of insisting on the legal/illegal dichotomy, if practice would dissolve the scheme?
The reason is that, paradoxically, a presumed right to use nuclear weapons will tend to deconstruct itself and thus develop a preventive effect.
When decision makers go through the different steps of a complete legaltechnical analysis, they will be able to discern the enormous legal risks they incur by the implementation of nuclear strategy. The legal system is overburdened and signals that the planning of a lawful nuclear war, from the beginning to the end, would be impossible. The existential character of the decision to use nuclear weapons disrupts the regularities of legal rationale. Contrary to the determination of a gap, the acknowledgement of a right traps decision makers into a web of reasoning leading to a normative impasse, which is, in its turn, appropriate for awakening the moment of concern and imposing a considerable degree of self-restraint.
Fear and flight, or angst and concern?
In his seminal work Sein und Zeit (Being and Time), philosopher Martin Heidegger made a fundamental distinction between fear and angst. In fear, Being flees in the face of the threatening instrumentality; we could argue respectively that states in fear lose the capacity of a complex evaluation of procedures and collective responses they have at their disposal. Fear simplifies responses, magnifies dangers and justifies overreactions.
Angst is for Heidegger the fundamental state of mind of human condition; angst is rooted in Daseins Being-in-the-world and is completely indefinite. That in the face of which one has angst is nothing and nowhere. Angst reveals itself as care and concern, not to be misinterpreted as love plus harmony and ethics, but rather as guardianship and worldliness. At the moment of concern, the Guardian has a lonely destiny refusing to surrender to the forces of evil and destruction, but also rejecting the collective suicide. It is the unique moment of preserving life and distancing oneself from it.
A security net over the nuclear precipice
Optimists believe that we are experiencing the last corrective armed conflicts of a new golden era of peace and democracy. Pessimists dismiss that assumption and fear a prolonged period of instability and recession. History will definitively take its course and shape the state of world society in the next decades.
It is certain that the potential for conflict during the present period of transition tends to increase, at least in the short term. Encouraging or imposing regime change and reforms in many parts of the world is therefore a necessary, albeit very risky and delicate, task of global politics. Any grave miscalculation, either in the form of action or in the form of inaction, by the handling of situations where WMD are involved, might unleash forces that could no longer be contained.
The ultimate rationalisation and barrier to Armageddon is that nuclear war can be lawful. The ICJ adopted a legal construct in 1996 in terms of gap and fear, instead of recognising an entitlement in angst and concern. State practice should correct this judicial misstep through effective preventive and deterrent action.
The west bears 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 in the world. Nuclear weapons are not ordinary means for national defence; rather, the entitlement to use them represents a final security net for the international community and an advance notice against the handful of fools who believe that they can force humanity to give up its freedom, its dignity and its doubts.
