The best authority is the International Court of Justice, the World Court. It rules on what the law says and governments take notice of it. In the 1990s the World Court Project, an international citizen group, landed the Court with a politically taxing question: could it ever be lawful to use, or even threaten to use, nuclear weapons?
The Court measured nuclear weapons against the strict rules of the Laws of War. In 1996 published its long-awaited Advisory Opinion. It was lengthy and complicated but some basic points can be teased out.
- “Methods and means of warfare, which would preclude any distinction between civilian and military targets … are prohibited.” Nuclear weapons must show that they are not indiscriminate.
- Hard as they searched, the Court could find no circumstance in which nuclear weapons could be threatened or used lawfully.
- The judges were unable to pronounce on whether the threat or use of nuclear weapons would always be unlawful. This was because they said they did not have enough information about particular nuclear weapons systems.
- However, they also said that the use of nuclear weapons seemed scarcely reconcilable with the rules of International Humanitarian law.
Closing the Eye of the Needle
It is the word “scarcely” which brings us to the camel and the needle. The small minority of nuclear-armed states try to wriggle through it. Closing the eye of this needle lies in the Court’s pronouncement that the use of nuclear weapons is uncontrollable in space or time.
Of course, anything not bound by the laws of logic is possible. Theoretically you could imagine a tiny camel just slipping through a huge darning needle.
So could nuclear weapons be used lawfully? Consider the restrictions of the Law:
How many strikes?
Just one? But would it stop there? More than a few would become uncontrollable.
At the World Court the UK brought up an example of a very small bomb in a desert. Civilian casualties would be minimal, it was claimed. But many nuclear warheads are designed to obliterate cities.
Modern nuclear weapons are very accurate indeed. But this fails to take into account the conditions at the time. Plumes of earth and dust thrown up by the detonation would carry deadly radiation, which could travel anywhere.
Whoever decided to fire must carefully assess the variables, including the prevailing weather conditions. Otherwise it would be matter of criminal recklessness.
Moreover, he or she must be pretty well controlled – inhumanly so. Emotion and panic must play no part. An assessment of the options is needed. The requirements of International Humanitarian Law must be carefully analysed. All this in a crisis with probably a few minutes to make the decision. Would this be possible?
Could the legality of a proposed nuclear strike ever be predicted if it actually came to it? We have never been provided with an answer to this. It is not dealt with in the UK submissions to the ICJ for the 1996 case and anyway the Advisory Opinion only dealt with nuclear weapons in general, not with specific nuclear weapons systems.
You can just about imagine a particular nuclear strike on a troop concentration in the desert which detonated on a hard surface on a still day with no civilians around. This might just about be legal. But it like repeatedly overtaking
on a blind corner and getting away with it? … until. Wouldn’t it still be criminally reckless?
The World Court said, and even nuclear-armed states agree, that nuclear weapons can only be used in self-defence. The circumstances must be extreme; and the very existence of the country must be in imminent peril.
All these boxes must be ticked. Some camel! Some needle!
Realistically, how could nuclear weapons possibly be used without breaking international law? Even if they are very low yield and detonated in the desert? Yet nine countries are still building and deploying new nuclear weapon systems and are prepared to to use them. They claim that they want nuclear weapons to be banished - but one day in the distant future. This is not good enough when we are talking about weapons which they have never made a convincing case for using legally, and which can cause catastrophic consequences for all humanity.