429

DISSENTING OPINION OF JUDGE WEERAMANTRY

TABLE OF CONTENTS

Pages
PRELIMINARY OBSERVATIONS ON THE OPINION OF THE COURT 433
(a) Reasons for dissent ~ 433
(b) The positive aspects of the Court’s Opinion 433
(c) Particular comments on the final paragraph 435
G) Paragraph 2B — (11 votes to 3) 435
(ii) Paragraph 2E — (7 votes to 7. Casting vote in favour by
the President) 435
(iii) Paragraph 2 A — (Unanimous) 436
(iv) Paragraph 2C — (Unanimous) 436
(v) Paragraph 2D — (Unanimous) 436
(vi) Paragraph 2 F — (Unanimous) 437
(vii) Paragraph 1 — (13 votes to 1) 437
I. INTRODUCTION 438
1. Fundamental importance of issue before the Court 438
2. Submissions to the Court 440
3. Some preliminary observations on the United Nations
Charter 441
4. The law relevant to nuclear weapons 443
5. Introductory observations on humanitarian law 443
6. Linkage between humanitarian law and the realities of war 445
7. The limit situation created by nuclear weapons 447
8. Possession and use 448
9. Differing attitudes of States supporting legality 448
10. The importance of a clarification of the law 449
JI. NATURE AND EFFECTS OF NUCLEAR WEAPONS 450
1. The nature of the nuclear weapon 450
2. Euphemisms concealing the realities of nuclear war 451
3. The effects of the nuclear weapon 452
(a) Damage to the environment and the ecosystem 454
(b) Damage to future generations 454
(c) Damage to civilian populations 456
(d) The nuclear winter ~ 456
(e) Loss of life 458
(f) Medical effects of radiation 458
(g) Heat and blast 461
(h) Congenital deformities 461
(i) Transnational damage 463

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as

(j) Potential to destroy all civilization

G) Social institutions
(ii) Economic structures
(ii) Cultural treasures

(k) The electromagnetic pulse
(1) Damage to nuclear reactors
(m) Damage to food productivity
(n) Multiple nuclear explosions resulting from self-defence

(o) “The shadow of the mushroom cloud”

The uniqueness of nuclear weapons

The differences in scientific knowledge between the present
time and 1945

Do Hiroshima and Nagasaki show that nuclear war is sur-
vivable?

7. A perspective from the past

TI. HUMANITARIAN LAw

11.

13.

1. “Elementary considerations of humanity”

2. Multicultural background to the humanitarian laws of war
3. Outline of humanitarian law

4.
5
6

Acceptance by States of the Martens Clause

. “The dictates of public conscience”
. Impact of the United Nations Charter and human rights on

“considerations of humanity” and “dictates of public con-
science”
The argument that “collateral damage” is unintended

Illegality exists independently of specific prohibitions
The “Lotus” decision

. Specific rules of the humanitarian law of war

(a) The prohibition against causing unnecessary suffering
(b) The principle of proportionality
(c) The principle of discrimination
(d) Respect for non-belligerent States
(e) The prohibition against genocide
(f) The prohibition against environmental damage
(g) Human rights law
Juristic opinion
The 1925 Geneva Gas Protocol
(i) Is radiation poisonous?
(ii) Does radiation involve contact of the body with
“materials”?

Article 23 (a) of the Hague Regulations

TV. Sev_r-DEFENCE

1.
2.
3.
4.

208

Unnecessary suffering
Proportionality/error
Discrimination
Non-belligerent States
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5. Genocide 517

6. Environmental damage 517
7. Human rights 517
V. SOME GENERAL CONSIDERATIONS 520
1. Two philosophical perspectives 520
2. The aims of war 523
3. The concept of a “threat of force” under the United Nations
Charter 525
4. Equality in the texture of the laws of war 526
5. The logical contradiction of a dual régime in the laws of war 528

6. Nuclear decision-making 529

VI. THE ATTITUDE OF THE INTERNATIONAL COMMUNITY TOWARDS
NUCLEAR WEAPONS 530

1. The universality of the ultimate goal of complete elimination 530

2. Overwhelming majorities in support of total abolition 531

3. World public opinion 533

4. Current prohibitions 534

5. Partial bans 534

6. Who are the States most specially concerned? 535
7. Have States, by participating in regional treaties, recognized

nuclear weapons as lawful? 536

VII. Some SPECIAL ASPECTS 536

1. The Non-Proliferation Treaty 536

2. Deterrence 538

(i) Meaning of deterrence 538

(ii) Deterrence — from what? 538

(iii) The degrees of deterrence 539

(iv) Minimum deterrence 539

(v) The problem of credibility 540

(vi) Deterrence distinguished from possession 540

(vii) The legal problem of intention 540
(viii) The temptation to use the weapons maintained for deter-

rence 541

(ix) Deterrence and sovereign equality 541

(x). Conflict with the St. Petersburg principle 542

3. Reprisals 542

4. Internal wars 544

5. The doctrine of necessity 545

6. Limited or tactical or battlefield nuclear weapons 546

VIE. Some ARGUMENTS AGAINST THE GRANT OF AN ADVISORY OPINION 550

1. The Advisory Opinion would be devoid of practical effects 550
2. Nuclear weapons have preserved world peace 551

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IX. CoNCLUSION

1. The task before the Court
2. The alternatives before humanity

APPENDIX (demonstrating danger to neutral States) Comparison of the
effects of bombs

210

552

552
553

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PRELIMINARY OBSERVATIONS ON THE OPINION OF THE COURT

(a) Reasons for Dissent

My considered opinion is that the use or threat of use of nuclear weap-
ons is illegal in any circumstances whatsoever. It violates the fundamental
principles of international law, and represents the very negation of the
humanitarian concerns which underlie the structure of humanitarian law.
It offends conventional law and, in particular, the Geneva Gas Protocol
of 1925, and Article 23 (a) of the Hague Regulations of 1907. It contra-
dicts the fundamentai principle of the dignity and worth of the human
person on which all law depends. It endangers the human environment.in
a manner which threatens the entirety of life on the planet.

I regret that the Court has not held directly and categorically that the
use or threat of use of the weapon is unlawful in all circumstances with-
out exception. The Court should have so stated in a vigorous and forth-
right manner which would have settled this legal question now and for
ever.

Instead, the Court has moved in the direction of illegality with some
far-reaching pronouncements that strongly point in that direction, while
making other pronouncements that are both less than clear and clearly
wrong.

I have therefore been obliged to title this a dissenting opinion, although
there are some parts of the Court’s Opinion with which I agree, and
which may still afford a substantial basis for a conclusion of illegality.
Those aspects of the Court’s Opinion are discussed below. They do take
the law far on the road towards total prohibition. In this sense, the
Court’s Opinion contains positive pronouncements of significant value.

There are two of the six operative sections of the second part of the
Opinion with which J profoundly disagree. I believe those two para-
graphs state the law wrongly and incompletely, and I have felt compelled
to vote against them.

However, I have voted in favour of paragraph 1 of the dispositif, and
in favour of four out of the six items in paragraph 2.

(b) The Positive Aspects of the Court’s Opinion

This Opinion represents the first decision of this Court, and indeed of
any international tribunal, that clearly formulates limitations on nuclear
weapons in terms of the United Nations Charter. It is the first such
decision which expressly addresses the contradiction between nuclear
weapons and the laws of armed conflict and international humanitarian
law. It is the first such decision which expresses the view that the use of

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nuclear weapons is hemmed in and limited by a variety of treaty obli-
gations.

In the environmental field, it is the first Opinion which expressly
embodies, in the context of nuclear weapons, a principle of “prohibition
of methods and means of warfare which are intended, or may be expected,
to cause” widespread, long-term and severe environmental damage, and
“the prohibition of attacks against the natural environment by way of
reprisals” (para. 31).

In the field of nuclear disarmament, it also reminds all nations of their
obligation to bring these negotiations to their conclusion in all their
aspects, thereby ending the coninuance of this threat to the integrity of
international law.

Once these propositions are established, one needs only to examine the
effects of the use of nuclear weapons to conclude that there is no possi-
bility whatsoever of a use or threat of use that does not offend these prin-
ciples. This Opinion examines at some length the numerous unique quali-
ties of the nuclear weapon which stand in flagrant contradiction of the
basic values underlying the United Nations Charter, international law,
and international humanitarian law. In the light of that information, it
becomes demonstrably impossible for the weapon to comply with the
basic postulates laid down by the Court, thus rendering them illegal in
terms of the unanimous finding of the Court.

In particular, I would mention the requirement, in Article 2 (4) of the
Charter, of compliance with the Purposes of the United Nations. Those
Purposes involve respect for human rights, and the dignity and worth of
the human person. They also involve friendly relations among nations,
and good neighbourliness (see Article 1 (Purposes and. Principles) read
with the Preamble). The linkage of legality with compliance with these
principles has now been judicially established. Weapons of warfare which
can kill a million or a billion human beings (according to the estimates
placed before the Court) show scant regard for the dignity and worth of
the human person, or for the principle of good neighbourliness. They
stand condemned upon the principles laid down by the Court.

Even though I do not agree with the entirety of the Court’s Opinion,
strong indicators of illegality necessarily flow from the unanimous parts
of that Opinion. Further details of the total incompatibility of the
weapons with the principles laid down by the Court appear in the body
of this Opinion.

It may be that further clarification will be possible in the future.

I proceed now to make some comments on the individual para-
graphs of part 2 of the dispositif. I shall deal first with the two para-
graphs with which I disagree.

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(c) Particular Comments on the Final Paragraph

(i) Paragraph 2B — (11 votes to 3)

Regarding paragraph 2B, I am of the view that there are comprehen-
sive and universal limitations imposed by treaty upon the use of nuclear
weapons. Environmental treaties and, in particular, the Geneva Gas Pro-
tocol and Article 23 (a) of the Hague Regulations, are among these.
These are dealt with in my opinion. I do not think it is correct to say that
there are no conventional prohibitions upon the use of the weapon.

(i) Paragraph 2E — (7 votes to 7. Casting vote in favour by the
President)

Iam in fundamental disagreement with both sentences contained within
this paragraph.

I strongly oppose the presence of the word “generally” in the first sen-
tence. The word is too uncertain in content for use in an Advisory Opin-
ion, and I cannot assent to a proposition which, even by remotest impli-
cation, leaves open any possibility that the use of nuclear weapons would
not be contrary to law in any circumstances whatsoever. I regret the pres-
ence of this word in a sentence which otherwise states the law correctly. It
would also appear that the word “generally” introduces an element of
internal contradiction into the Court’s Opinion, for in paragraphs 2C
and 2D of the Court’s Opinion, the Court concludes that nuclear
weapons must be consistent with the United Nations Charter, the prin-
ciples of international law, and the principles of humanitarian law, and,
such consistency being impossible, the weapon becomes illegal.

The word “generally” admits of many meanings, ranging through vari-
ous gradations, from “as a general rule; commonly”, to “universally;
with respect to all or nearly all”!. Even with the latter meaning, the word
opens a window of permissibility, however narrow, which does not truly
reflect the law. There should be no niche in the legal principle, within
which a nation may seek refuge, constituting itself the sole judge in its
own cause on so important a matter.

The main purpose of this opinion is to show that, not generally but
always, the threat or use of nuclear weapons would be contrary to the
rules of international law and, in particular, to the principles and rules of
humanitarian law. Paragraph 2E should have been in those terms, and
the Opinion need have stated no more.

The second paragraph of 2E states that the current state of interna-

tional law is such that the Court cannot conclude definitely whether the
threat or use of the weapon would or would not be lawful in extreme

! The Shorter Oxford English Dictionary, 3rd ed., 1987, Vol. I, p. 840.

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circumstances of self-defence. It seems self-evident to me that once nuclear
weapons are resorted to, the laws of war (the jus in bello) take over, and
that there are many principles of the laws of war, as recounted in this
opinion, which totally forbid the use of such a weapon. The existing law
is sufficiently clear on this matter to have enabled the Court to make a
definite pronouncement without leaving this vital question, as though
sufficient principles are not already in existence to determine it. All the
more should this uncertainty have been eliminated in view of the Court’s
very definite findings as set out earlier.

(ili) Paragraph 2 A — (Unanimous)

Speaking for myself, I would have viewed this unquestionable proposi-
tion as a preliminary recital, rather than as part of the dispositif.

(iv) Paragraph 2 C — (Unanimous)

The positive features of this paragraph have already been noted. The
Court, in this paragraph, has unanimously endorsed Charter-based pre-
conditions to the legality of nuclear weapons, which are diametrically
opposed to the results of the use of the weapon. I thus read para-
graph 2C of the dispositif as rendering the use of the nuclear weapon
illegal without regard to the circumstances in which the weapon is
used — whether in aggression or in self-defence, whether internationally
or internally, whether by individual decision or in concert with other
nations. A unanimous endorsement of this principle by all the judges
of this Court takes the principle of illegality of use of nuclear weapons
a long way forward from the stage when there was no prior judicial
consideration of legality of nuclear weapons by any international
tribunal.

Those contending that the use of nuclear weapons was within the law
argued strongly that what is not expressly prohibited to a State is
permitted. On this basis, the use of the nuclear weapon was said to be a
matter on which the State’s freedom was not limited. I see the limitations
laid down in paragraph 2C as laying that argument to rest.

(v) Paragraph 2D — (Unanimous)

This paragraph, also unanimously endorsed by the Court, lays down
the further limitation of compatibility with the requirements of interna-
tional law applicable in armed conflict, and particularly with the rules of
international humanitarian law and specific treaty obligations.

There is a large array of prohibitions laid down here.
My opinion will show what these rules and principles are, and how it is

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impossible, in the light of the nature and effects of nuclear weapons, for
these to be satisfied.

If the weapon is demonstrably contrary to these principles, it is unlaw-
ful in accordance with this paragraph of the Court’s Opinion.

(vi) Paragraph 2 F — (Unanimous)

This paragraph is strictly outside the terms of reference of the question.
Yet, in the overall context of the nuclear weapons problem, it is a useful
reminder of State obligations, and I have accordingly voted in favour
of it.

The ensuing opinion sets out my views on the question before the
Court. Since the question posed to the Court relates only to use and
threat of use, this opinion does not deal with the legality of other impor-
tant aspects of nuclear weapons, such as possession, vertical or horizon-
tal proliferation, assembling or testing.

I should also add that I have some reservations in regard to some of
the reasoning in the body of the Court’s Opinion. Those reservations will
appear in the course of this opinion. In particular, while agreeing with
the Court in the reasoning by which it rejects the various objections
raised to admissibility and jurisdiction, I would register my disagreement
with the statement in paragraph 14 of the Opinion that the refusal to
give the World Health Organization the advisory opinion requested by it
was justified by the Court’s lack of jurisdiction in that case. My disagree-
ment with that proposition is the subject of my dissenting opinion in that
case.

I am of the view that in dealing with the question of reprisals
(para. 46), the Court should have affirmatively pronounced on the ques-
tion of the unlawfulness of belligerent reprisals. I do not agree also with
its treatment of the question of intent towards a group as such in relation
to genocide, and with its treatment of nuclear deterrence. These aspects
are considered in this opinion.

(vil) Paragraph 1 — (13 votes to 1)

One other matter needs to be mentioned before I commence the sub-
stantive part of this dissenting opinion. I have voted in favour of the first
finding of the Court, recorded in item 1 of the dispositif, which follows
from the Court’s rejection of the various objections to admissibility and
jurisdiction which were taken by the States arguing in favour of the legal-
ity of nuclear weapons. I strongly support the views expressed by the
Court in the course of its reasoning on these matters, but I have some
further thoughts upon these objections, which I have set out in my dis-
senting opinion in relation to the WHO request, where also similar objec-
tions were taken. There is no need to repeat those observations in this
opinion, in view of the Court’s conclusions. However, what I have stated

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on these matters in that dissenting opinion should be read as supplemen-
tary to this opinion as well.

J. INTRODUCTION

1. Fundamental Importance of Issue before the Court

I now begin the substantive part of this opinion.

This case has from its commencement been the subject of a wave of
global interest unparalleled in the annals of this Court. Thirty-five States
have filed written statements before the Court and 24 have made oral
submissions. A multitude of organizations, including several NGOs, have
also sent communications to the Court and submitted materials to it; and
nearly two million signatures have been actually received by the Court
from various organizations and individuals from around 25 countries. In
addition, there have been other shipments of signatures so voluminous
that the Court could not physically receive them and they have been
lodged in various other depositories. If these are also taken into account,
the total number of signatures has been estimated by the Court’s archi-
vist at over three million. The overall number of signatures, all of which
could not be deposited in the Court, is well in excess of this figure. The
largest number of signatures has been received from Japan, the only
nation that has suffered a nuclear attack?. Though these organizations
and individuals have not made formal submissions to the Court, they evi-
dence a groundswell of global public opinion which is not without legal
relevance, as indicated later in this opinion.

The notion that nuclear weapons are inherently illegal, and that a
knowledge of such illegality is of great practical value in obtaining a
nuclear-free world, is not new. Albert Schweitzer referred to it, in a letter
to Pablo Casals, as early as 1958 in terms of:

“the most elementary and most obvious argument: namely, that
international law prohibits weapons with an unlimitable effect, which
cause unlimited damage to people outside the battle zone. This is the

2In a memorandum responding to an enquiry regarding the number of signatures
received, the archivist observes that: “To be precise in this matter is to count the stars in
the sky.” ‘

3 The sponsors of a Declaration of Public Conscience from Japan have stated, in a
communication to the Registrar, that they have stored in a warehouse in The Hague,
1,757,757 signatures, which the Court had no space to accommodate, in addition to
the 1,564,954 actually deposited with the Court. Another source, based in Europe, has
reckoned the declarations it has received, in connection with the current applications
to the Court, at 3,691,899, of which 3,338,408 have been received from Japan.

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case with atomic and nuclear weapons . . . The argument that these
weapons are contrary to international law contains everything that
we can reproach them with. It has the advantage of being a legal
argument ... No government can deny that these weapons violate
international law . . . and international law cannot be swept aside!” *

Though lay opinion has thus long expressed itself on the need for
attention to the legal aspects, the matter has not thus far been the subject
of any authoritative judicial pronouncement by an international tribunal.
It was considered by the courts in Japan in the Shimoda case* but, until
the two current requests for advisory opinions from this Court, there has
been no international judicial consideration of the question. The respon-
sibility placed upon the Court is thus of an extraordinarily onerous
nature, and its pronouncements must carry extraordinary significance.

This matter has been strenuously argued before the Court from oppos-
ing points of view. The Court has had the advantage of being addressed
by a number of the most distinguished practitioners in the field of inter-
national law. In their submissions before the Court, they have referred to
the historic nature of this request by the General Assembly and the
request of the World Health Organization, which has been heard along
with it. In the words of one of them, these requests:

“will constitute milestones in the history of the Court, if not in
history per se. It is probable that these requests concern the most
important legal issue which has ever been submitted to the Court.”
(Salmon, Solomon Islands, CR 95/32, p. 38.)

In the words of another, “It is not every day that the opportunity of
pleading for the survival of humanity in such an august forum is offered.”
(David, Solomon Islands, CR 95/32, p. 49.)

It is thus the gravest of possible issues which confronts the Court in
this Advisory Opinion. It requires the Court to scrutinize every available
source of international law, quarrying deep, if necessary, into its very
bedrock. Seams of untold strength and richness lie therein, waiting to be
quarried. Do these sources contain principles mightier than might alone,
wherewith to govern the mightiest weapon of destruction yet devised?

It needs no emphasis that the function of the Court is to state the law
as it now is, and not as it is envisaged in the future. Is the use or threat of

4 Albert Schweitzer, Letters 1905-1965, H. W. Baher (ed.), J. Neugroschel (trans.),
1992, p. 280, letter to Pablo Casals dated 3 October 1958; emphasis added.

5 Shimoda v. The Japanese State, The Japanese Annual of International Law, 1964,
pp. 212-252.

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use of nuclear weapons illegal under presently existing principles of law,
rather than under aspirational expectations of what the law should be?
The Court’s concern in answering this request for an opinion is with /ex
lata not with lex ferenda.

At the most basic level, three alternative possibilities could offer them-
selves to the Court as it reaches its decision amidst the clash of opposing
arguments. If indeed the principles of international law decree that the
use of the nuclear weapon is legal, it must so pronounce. The anti-nuclear
forces in the world are immensely influential, but that circumstance does
not swerve the Court from its duty of pronouncing the use of the
weapons legal if that indeed be the law. A second alternative conclusion is
that the law gives no definite indication one way or the other. If so, that
neutral fact needs to be declared, and a new stimulus may then emerge
for the development of the law. Thirdly, if legal rules or principles dictate
that the nuclear weapon is illegal, the Court will so pronounce, un-
deterred again by the immense forces ranged on the side of the legality of
the weapon. As stated at the very commencement, this last represents my
considered view. The forces ranged against the view of illegality are truly
colossal. However, collisions with the colossal have not deterred the law
on its upward course towards the concept of the rule of law. It has not
flinched from the task of imposing constraints upon physical power when
legal principle so demands. It has been by a determined stand against
forces that seemed colossal or irresistible that the rule of law has been
won. Once the Court determines what the law is, and ploughs its furrow
in that direction, it cannot pause to look over its shoulder at the immense
global forces ranged on either side of the debate.

2. Submissions to the Court

Apart from submissions relating to the competence of the General
Assembly to request this opinion, a large number of submissions on the
substantive law have been made on both sides by the numerous States
who have appeared before the Court or tendered written submissions.

Though there is necessarily an element of overlap among some of these
submissions, they constitute in their totality a vast mass of material,
probing the laws of war to their conceptual foundations. Extensive fac-
tual material has also been placed before the Court in regard to the many
ways in which the nuclear weapon stands alone, even among weapons of
mass destruction, for its unique potential of damaging humanity and its
environment for generations to come.

On the other hand, those opposing the submission of illegality have
argued that, despite a large number of treaties dealing with nuclear weap-

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ons, no single clause in any treaty declares nuclear weapons to be illegal
in specific terms. They submit that, on the contrary, the various treaties
on nuclear weapons entered into by the international community, includ-
ing the Nuclear Non-Proliferation Treaty (NPT) in particular, carry a
clear implication of the current legality of nuclear weapons in so far as
concerns the nuclear powers. Their position is that the principle of the
illegality of the use or threat of use of nuclear weapons still lies in the
future, although considerable progress has been made along the road
leading to that result. It is {ex ferenda in their submission, and not yet of
the status of lex lata. Much to be desired, but not yet achieved, it is a
principle waiting to be born.

This opinion cannot possibly do justice to all of the formal submissions
made to the Court, but will attempt to deal with some of the more impor-
tant among them.

3. Some Preliminary Observations on the United Nations Charter

It was only a few weeks before the world was plunged into the age of
the atom that the United Nations Charter was signed. The subscribing
nations adopted this document at San Francisco on 26 June 1945. The
bomb was dropped on Hiroshima on 6 August 1945. Only 40 days inter-
vened between the two events, each so pregnant with meaning for the
human future. The United Nations Charter opened a new vista of hope.
The bomb opened new vistas of destruction.

Accustomed as it was to the destructiveness of traditional war, the
world was shaken and awe-struck at the power of the nuclear bomb — a
small bomb by modern standards. The horrors of war, such as were
known to those who drafted the Charter, were thus only the compara-
tively milder horrors of World War II, as they had been experienced thus
far. Yet these horrors, seared into the conscience of humanity by the
most devastating conflict thus far m human history, were sufficient to
galvanize the world community into action, for, in the words of the
United Nations Charter, they had “brought untold sorrow to mankind”.
The potential to bring untold sorrow to mankind was within weeks to be
multiplied several-fold by the bomb. Did that document, drafted in total
unawareness of this escalation in the weaponry of war, have anything to
say of relevance to the nuclear age which lay round the corner?

There are six keynote concepts in the opening words of the Charter
which have intense relevance to the matter before the Court.

The Charter’s very first words are “We, the peoples of the United
Nations” — thereby showing that all that ensues is the will of the peoples
of the world. Their collective will and desire is the very source of the
United Nations Charter and that truth should never be permitted to
recede from view. In the matter before the Court, the peoples of the world
have a vital interest, and global public opinion has an important influ-

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ence on the development of the principles of public international law. As
will be observed later in this opinion, the law applicable depends heavily
upon “the principles of humanity” and “the dictates of public con-
science”, in relation to the means and methods of warfare that are per-
missible.

The Charter’s next words refer to the determination of those peoples to
save succeeding generations from the scourge of war. The only war they
knew was war with non-nuclear weapons. That resolve would presum-
ably have been steeled even further had the destructiveness and the inter-
generational effects of nuclear war been known.

The Charter immediately follows those two key concepts with a third
— the dignity and worth of the human person. This is recognized as the
cardinal unit of value in the global society of the future. A means was
about to reveal itself of snuffing it out by the million with the use of a
single nuclear weapon.

The fourth observation in the Charter, succeeding hard on the heels of
the first three, is the equal rights of nations large and small. This is an
ideal which is heavily eroded by the concept of nuclear power.

The next observation refers to the maintenance of obligations arising
from treaties and “other sources of international law” (emphasis added).
The argument against the legality of nuclear weapons rests principally
not upon treaties, but upon such “other sources of international law”
(mainly humanitarian law), whose principles are universally accepted.

The sixth relevant observation in the preamble to the Charter is its
object of promoting social progress and better standards of life in larger
freedom. Far from moving towards this Charter ideal, the weapon we are
considering is one which has the potential to send humanity back to the
stone age if it survives at all.

It is indeed as though, with remarkable prescience, the founding fathers
had picked out the principal areas of relevance to human progress and
welfare which could be shattered by the appearance only six weeks away
of a weapon which for ever would alter the contours of war — a weapon
which was to be described by one of its creators, in the words of ancient
oriental wisdom, as a “shatterer of worlds” ®.

The Court is now faced with the duty of rendering an opinion in regard
to the legality of this weapon. The six cardinal considerations set out at
the very commencement of the Charter need to be kept in constant view,
for each of them offers guidelines not to be lightly ignored.

6 Robert Oppenheimer, quoting The Bhagvadgita. See Peter Goodchild, Robert Oppen-
heimer : Shatterer of Worlds, 1980.

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4. The Law Relevant to Nuclear Weapons

As Oscar Schachter observes, the law relevant to nuclear weapons is
“much more comprehensive than one might infer from the discussions of
nuclear strategists and political scientists”’, and the range of applicable
law could be considered in the following five categories:

1. The international law applicable generally to armed conflicts — the
jus in bello, sometimes referred to as the “humanitarian law of war”.

2. The jus ad bellum — the law governing the right of States to go to
war. This law is expressed in the United Nations Charter and related
customary law.

3. The lex specialis — the international legal obligations that relate spe-
cifically to nuclear arms and weapons of mass destruction.

4. The whole corpus of international law that governs State obligations
and rights generally, which may affect nuclear weapons policy in par-
ticular circumstances.

5. National law, constitutional and statutory, that may apply to deci-
sions on nuclear weapons by national authorities.

All of these will be touched upon in the ensuing opinion, but the main
focus of attention will be on the first category mentioned above.

This examination will also show that each one of the sources of inter-
national law, as set out in Article 38 (1) of the Court’s Statute, supports
the conclusion that the use of nuclear weapons in any circumstances is
illegal.

5. Introductory Observations on Humanitarian Law

It is in the department of humanitarian law that the most specific and
relevant rules relating to this problem can be found.

Humanitarian law and custom have a very ancient lineage. They reach
back thousands of years. They were worked out in many civilizations —
Chinese, Indian, Greek, Roman, Japanese, Islamic, modern European,
among others. Through the ages many religious and philosophical ideas
have been poured into the mould in which modern humanitarian law has
been formed. They represented the effort of the human conscience to
mitigate in some measure the brutalities and dreadful sufferings of war.

7 Proceedings of the Canadian Conference on Nuclear Weapons and the Law, pub-
lished as Lawyers and the Nuclear Debate, Maxwell Cohen and Margaret Gouin (eds.),
1988, p. 29.

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In the language of a notable declaration in this regard (the St. Petersburg
Declaration of 1868), international humanitarian law is designed to “con-
ciliate the necessities of war with the laws of humanity”. In recent times,
with the increasing slaughter and devastation made possible by modern
weaponry, the dictates of conscience have prompted ever more compre-
hensive formulations.

It is today a substantial body of law, consisting of general principles
flexible enough to accommodate unprecedented developments in weap-
onry, and firm enough to command the allegiance of all members of the
community of nations. This body of general principles exists in addition
to over 600 special provisions in the Geneva Conventions and their Addi-
tional Protocols, apart from numerous other conventions on special mat-
ters such as chemical and bacteriological weapons. It is thus an important
body of law in its own right, and this case in a sense puts it to the test.

Humanitarian law is ever in continuous development. It has a vitality
of its own. As observed by the 1945 Nuremberg Tribunal, which dealt
with undefined “crimes against humanity” and other crimes, “[the law of
war] is not static, but by continual adaptation follows the needs of a
changing world” ®. Humanitarian law grows as the sufferings of war keep
escalating. With the nuclear weapon, those sufferings reach a limit situa-
tion, beyond which all else is academic. Humanitarian law, as a living
discipline, must respond sensitively, appropriately and meaningfully.

By their very nature, problems in humanitarian law are not abstract,
intellectual enquiries which can be pursued in ivory-tower detachment
from the sad realities which are their stuff and substance. Not being mere
exercises in logic and black-letter law, they cannot be logically or intel-
lectually disentangled from their terrible context. Distasteful though it be
to contemplate the brutalities surrounding these legal questions, the legal
questions can only be squarely addressed when those brutalities are
brought into vivid focus.

The brutalities tend often to be hidden behind a veil of generalities and
platitudes — such as that all war is brutal or that nuclear weapons are
the most devastating weapons of mass destruction yet devised. It is
necessary to examine more closely what this means in all its stark reality. A
close and unvarnished picture is required of the actual human sufferings
involved, and of the multifarious threats to the human condition posed
by these weapons. Then only can humanitarian law respond appropri-
ately. Indeed, it is by turning the spotlight on the agonies of the battle-

8 Trial of the Major War Criminals before the International Military Tribunal, 1948,
Vol. 22, p. 464.

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field that modern humanitarian law began. This opinion will therefore
examine the factual effects of nuclear weapons in that degree of minimum
detail which is necessary to attract to these considerations the matching
principles of humanitarian law.

6. Linkage between Humanitarian Law and the Realities of War

The nineteenth century tended to view war emotionally, as a glorious
enterprise, and practically, as a natural extension of diplomacy. Legiti-
mized by some philosophers, respected by nearly all statesmen, and
glorified by many a poet and artist, its brutalities tended to be concealed
behind screens of legitimacy, respectability and honour.

Henri Dunant’s Memory of Solferino, written after a visit to the
battlefield of Solferino in 1859, dragged the brutalities of war into public
view in a manner which shook contemporary civilization out of its com-
placency and triggered off the development of modern humanitarian law.
That spirit of realism needs to be constantly rekindled if the law is not to
stray too far from its subject matter, and thus become sterile.

Dunant’s historic account touched the conscience of his age to the
extent that a legal response seemed imperative. Here is his description of
the raw realities of war as practised in his time:

“Here is a hand-to-hand struggle in all its horror and frightful-
ness: Austrians and Allies trampling each other under foot, killing
one another on piles of bleeding corpses, felling their enemies with
their rifle butts, crushing skulls, ripping bellies open with sabre and
bayonet. No quarter is given. It is a sheer butchery. . .

A little further on, it is the same picture, only made the more
ghastly by the approach of a squadron of cavalry, which gallops by,
crushing dead and dying beneath its horses’ hoofs. One poor man
has his jaw carried away; another his head shattered; a third, who
could have been saved, has his chest beaten in.

Here comes the artillery, following the cavalry and going at full
gallop. The guns crash over the dead and wounded, strewn pell-mell
on the ground. Brains spurt under the wheels, limbs are broken and
torn, bodies mutilated past recognition — the soil is literally puddled
with blood, and the plain littered with human remains.”

His description of the aftermath is no less powerful:

“The stillness of the night was broken by groans, by stifled sighs
of anguish and suffering. Heart-rending voices kept calling for help.
Who could ever describe the agonies of that fearful night?

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When the sun came up on the twenty-fifth, it disclosed the most
dreadful sights imaginable. Bodies of men and horses covered the
battlefield: corpses were strewn over roads, ditches, ravines, thickets
and fields: the approaches of Solferino were literally thick with
dead.”

Such were the realities of war, to which humanitarian law was the
response of the legal conscience of the time. The nuclear weapon has
increased the savagery a thousandfold since Dunant wrote his famous
words. The conscience of our time has accordingly responded in appro-
priate measure, as amply demonstrated by the global protests, the Gen-
eral Assembly resolutions, and the universal desire to eliminate nuclear
weapons altogether. It does not sit back in a spirit of scholarly detach-
ment, drawing its conclusions from refined exercises in legal logic.

Just as it is through close contact with the raw facts of artillery and
cavalry warfare that modern humanitarian law emerged, it is through a
consideration of the raw facts of nuclear war that an appropriate legal
response can emerge.

While we have moved from the cruelties of cavalry and artillery to the
exponentially greater cruelties of the atom, we now enjoy a dual advan-
tage, not present in Dunant’s time — the established discipline of humani-
tarian law and ample documentation of the human suffering involved.
Realities infinitely more awful than those which confronted Dunant’s age
of simpler warfare cannot fail to touch the legal conscience of our age.

Here is an eyewitness description from the first use of the weapon in
the nuclear age — one of hundreds of such scenes which no doubt
occurred simultaneously, and many of which have been recorded in con-
temporary documentation. The victims were not combatants, as was the
case at Solferino:

“It was a horrible sight. Hundreds of injured people who were try-
ing to escape to the hills passed our house. The sight of them was
almost unbearable. Their faces and hands were burnt and swollen;
and great sheets of skin had peeled away from their tissues to hang
down like rags on a scarecrow. They moved like a line of ants. All
through the night they went past our house, but this morning they
had stopped. I found them lying on both sides of the road, so thick
that it was impossible to pass without stepping on them.

And they had no faces! Their eyes, noses and mouths had been
burned away, and it looked like their ears had been melted off. It
was hard to tell front from back. One soldier, whose features had
been destroyed and was left with his white teeth sticking out, asked
me for some water but I didn’t have any. (I clasped my hands and

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prayed for him. He didn’t say anything more.) His plea for water
must have been his last words.”?

Multiply this a thousand-fold or even a million-fold and we have a pic-
ture of just one of the many possible effects of nuclear war.

Massive documentation details the sufferings caused by nuclear
weapons — from the immediate charring and mutilation for miles from
the site of the explosion, to the lingering after-effects — the cancers and
the leukaemias which imperil human health, the genetic mutations
which threaten human integrity, the environmental devastation which
endangers the human habitat, the disruption of all organization, which
undermines human society.

The Hiroshima and Nagasaki experience were two isolated incidents
three days apart. They tell us very little of the effects of multiple explo-
sions that would almost inevitably follow in quick succession in the event
of a nuclear war today (see Section IL.6 below). Moreover, 50 years of
development have intervened, with bombs being available now which
carry 70 or even 700 times the explosive power of the Hiroshima and
Nagasaki bombs. The devastation of Hiroshima and Nagasaki could be
magnified several-fold by just one bomb today, let alone a succession of
bombs.

7. The Limit Situation Created by Nuclear Weapons

Apart from human suffering, nuclear weapons, as observed earlier,
take us into a limit situation. They have the potential to destroy all civi-
lization — all that thousands of years of effort in all cultures have pro-
duced. It is true “the dreary story of sickened survivors lapsing into
stone-age brutality is not an assignment that any sensitive person under-
takes willingly”, but it is necessary to “contemplate the likely outcome of
mankind’s present course clearsightedly”!°. Since nuclear weapons can
destroy all life on the planet, they imperil all that humanity has ever
stood for, and humanity itself.

9 Hiroshima Diary: The Journal of a Japanese Physician August 6-September 30, 1945,
by Michihiko Hachiya, M.D., translated and edited by Warner Wells, M.D., University
of North Carolina Press, 1955, pp. 14-15.

10 “The Medical and Ecological Effects of Nuclear War”, by Don G. Bates, Professor
of the History of Medicine, McGill University, in McGill Law Journal, 1983, Vol. 28,
p. 717.

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An analogy may here be drawn between the law relating to the envi-
ronment and the law relating to war.

At one time it was thought that the atmosphere, the seas and the land
surface of the planet were vast enough to absorb any degree of pollution
and yet rehabilitate themselves. The law was consequently very lax in its
attitude towards pollution. However, with the realization that a limit
situation would soon be reached, beyond which the environment could
absorb no further pollution without danger of collapse, the law found
itself compelled to reorientate its attitude towards the environment.

With the law of war, it is no different. Until the advent of nuclear war,
it was thought that however massive the scale of a war, humanity could
survive and reorder its affairs. With the nuclear weapon, a limit situation
was reached, in that the grim prospect opened out that humanity may
well fail to survive the next nuclear war, or that all civilization may be
destroyed. That limit situation has compelled the law of war to reorien-
tate its attitudes and face this new reality.

8. Possession and Use

Although it is the use of nuclear weapons, and not possession, that is
the subject of this reference, many arguments have been addressed to the
Court which deal with possession and which therefore are not pertinent
to the issues before the Court.

For example, the Court was referred, in support of the position that
nuclear weapons are a matter within the sovereign authority of each
State, to the following passage in Military and Paramilitary Activities in
and against Nicaragua (Nicaragua v. United States of America):

“in international law there are no rules, other than such rules as may
be accepted by the State concerned, by treaty or otherwise, whereby
the level of armaments of a sovereign State can be limited’ (CJ.
Reports 1986, p. 135)” (CR 95/23, p. 79, France; emphasis added).

This passage clearly relates to possession, not use.

Much was made also of the Nuclear Non-Proliferation Treaty, as per-
mitting nuclear weapons to the nuclear weapons States. Here again such
permission, if any, as may be inferred from that treaty relates to posses-
sion and not use, for nowhere does the NPT contemplate or deal with the
use or threat of use of nuclear weapons. On questions of use or threat of
use, the NPT is irrelevant.

9. Differing Attitudes of States Supporting Legality

There are some significant differences between the positions adopted
by States supporting the legality of the use of nuclear weapons. Indeed, in

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relation to some very basic matters, there are divergent approaches
among the nuclear States themselves.
Thus the French position is that

“This criterion of proportionality does not itself rule out in prin-
ciple the utilization, whether in response or as a matter of first use,
of any particular weapon whatsoever, including a nuclear weapon,
provided that such use is intended to withstand an attack and appears
to be the most appropriate means of doing so.” (French Written
Statement, p. 29, emphasis added.)

According to this view, the factors referred to could, in a given case,
even outweigh the principle of proportionality. It suggests that the gov-
erning criterion determining the permissibility of the weapon is whether it
is the most appropriate means of withstanding the attack. The United
States position is that:

“Whether an attack with nuclear weapons would be dispropor-
tionate depends entirely on the circumstances, including the nature
of the enemy threat, the importance of destroying the objective, the
character, size and likely effects of the device, and the magnitude of
therisk to civilians.” (United States Written Statement, p. 23.)

The United States position thus carefully takes into account such circum-
stances as the character, size and effects of the device and the magnitude
of risk to civilians.

The position of the Russian Federation is that the “Martens Clause”
(see Section IIL.4) is not working at all and that today the Martens
Clause may formally be considered inapplicable (Written Statement,
p. 13).

The United Kingdom, on the other hand, while accepting the applica-
bility of the Martens Clause, submits that the clause does not on its own
establish the illegality of nuclear weapons (United Kingdom Written
Statement, p. 48, para. 3.58). The United Kingdom argues that the terms
of the Martens Clause make it necessary to point to a rule of customary
law outlawing the use of nuclear weapons.

These different perceptions of the scope, and indeed of the very basis
of the claim of legality on the part of the nuclear powers themselves, call
for careful examination in the context of the question addressed to the
Court.

10. The Importance of a Clarification of the Law

The importance of a clarification of the law upon the legality of
nuclear weapons cannot be overemphasized.

On 6 June 1899, Mr. Martens (presiding over the Second Subcommis-
sion of the Second Commission of the Hague Conference), after whom
the Martens Clause has been named (which will be referred to at some

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length in this opinion), made the following observations in reply to the
contention that it was preferable to leave the laws of war in a vague state.
He said:

“But is this opinion quite just? Is this uncertainty advantageous to
the weak? Do the weak become stronger because the duties of the
strong are not determined? Do the strong become weaker because
their rights are specifically defined and consequently limited? I do
not think so. I am fully convinced that it is particularly in the inter-
est of the weak that these rights and duties be defined. . . .

Twice, in 1874 and 1899, two great international Conferences
have gathered together the most competent and eminent men of the
civilized world on the subject. They have not succeeded in determin-
ing the laws and customs of war. They have separated, leaving utter
vagueness for all these questions. . ..

To leave uncertainty hovering over these questions would neces-
sarily be to allow the interests of force to triumph over those of
humanity . . .”!

It is in this quest for clarity that the General Assembly has asked the
Court to render an opinion on the use of nuclear weapons. The nations
who control these weapons have opposed this application, and so have
some others. It is in the interests of all nations that this matter be clarified
which, for one reason or another, has not been specifically addressed for
the past 50 years. It has remained unresolved and has hung over the
future of humanity, like a great question mark, raising even issues so pro-
found as the future of human life upon the planet.

The law needs to be clearly stated in the light of State rights and obli-
gations under the new world dispensation brought about by the United
Nations Charter which, for the first time in human history, outlawed war
by the consensus of the community of nations. Fifty years have passed
since that epoch-making document which yet lay in the distant future
when Martens spoke. Those 50 years have been years of inaction, in so
far as concerns the clarification of this most important of legal issues ever
to face the global community.

II. NATURE AND EFFECTS OF NUCLEAR WEAPONS

I. The Nature of the Nuclear Weapon

The matter before the Court involves the application of humanitarian
law to questions of fact, not the construction of humanitarian law as an
abstract body of knowledge.

1 J. B. Scott, “The Conference of 1899”, The Proceedings of the Hague Peace Confer-
ences, 1920, pp. 506-507; emphasis added.

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The Court is enquiring into the question whether the use of nuclear
weapons produces factual consequences of such an inhumane nature as
to clash with the basic principles of humanitarian law. Both in regard to
this Advisory Opinion and in regard to that sought by the World Health
Organization, a vast mass of factual material has been placed before the
Court as an aid to its appreciation of the many ways in which the effects
of nuclear weapons attract the application of various principles of
humanitarian law. It is necessary to examine these specific facts, at least
in outline, for they illustrate, more than any generalities can, the unique
features of the nuclear weapon.

Moreover, the contention that nuclear war is in some way containable
renders essential a detailed consideration of the unique and irreversible
nature of the effects of nuclear weapons.

2. Euphemisms Concealing the Realities of Nuclear War

It would be a paradox if international law, a system intended to pro-
mote world peace and order, should have a place within it for an entity
that can cause total destruction of the world system, the millennia of civi-
lization which have produced it, and humanity itself. A factor which
powerfully conceals that contradiction, even to the extent of keeping
humanitarian law at bay, is the use of euphemistic language — the dis-
embodied language of military operations and the polite language of
diplomacy. They conceal the horror of nuclear war, diverting attention to
intellectual concepts such as self-defence, reprisals, and proportionate
damage which can have little relevance to a situation of total destruction.

Horrendous damage to civilians and neutrals is described as collateral
damage, because it was not directly intended; incineration of cities
becomes “considerable thermal damage”. One speaks of “acceptable
levels of casualties”, even if megadeaths are involved. Maintaining the
balance of terror is described as “nuclear preparedness”; assured destruc-
tion as “deterrence”, total devastation of the environment as “environ-
mental damage”. Clinically detached from their human context, such
expressions bypass the world of human suffering, out of which humani-
tarian law has sprung.

As observed at the commencement of this opinion, humanitarian law
needs to be brought into juxtaposition with the raw realities of war if it is
to respond adequately. Such language is a hindrance to this process!?.

Both ancient philosophy and modern linguistics have clearly identified
the problem of the obscuring of great issues through language which con-

12 This aspect is addressed in a volume of contemporary philosophical explorations of
the problem of war, The Critique of War, Robert Ginsberg (ed.), 1969. See, in particular,
Chap. 6, “War and the Crisis of Language”, by Thomas Merton.

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ceals their key content. Confucius, when asked how he thought order and
morality could be created in the State, answered, “By correcting names.”
By this he meant calling each thing by its correct name".

Modern semantics has likewise exposed the confusion caused by words
of euphemism, which conceal the true meanings of concepts #. The lan-
guage of nuclear war, rich in these euphemisms, tends to sidetrack the
real issues of extermination by the million, incineration of the popula-
tions of cities, genetic deformities, inducement of cancers, destruction of
the food chain, and the imperilling of civilization. The mass extinction of
human lives is treated with the detachment of entries in a ledger which
can somehow be reconciled. If humanitarian law is to address its tasks
with clarity, it needs to strip away these verbal dressings and come to
grips with its real subject-matter. Bland and disembodied language should
not be permitted to conceal the basic contradictions between the nuclear
weapon and the fundamentals of international law.

3. The Effects of the Nuclear Weapon

Before 1945 “the highest explosive effect of bombs was produced by
TNT devices of about 20 tons”!°. The nuclear weapons exploded in
Hiroshima and Nagasaki were more or less of the explosive power of 15
and 12 kilotons respectively, that is, 15,000 and 12,000 tons of TNT
(trinitrotoluene) respectively. Many of the weapons existing today and in
process of being tested represent several multiples of the explosive power
of these bombs. Bombs in the megaton (equivalent to a million tons of
TNT) and multiple megaton range are in the world’s nuclear arsenals,
some being even in excess of 20 megatons (equivalent to 20 million tons
of TNT). A one-megaton bomb, representing the explosive power of a
million tons of TNT, would be around 70 times the explosive power of
the bombs used on Japan, and a 20-megaton bomb well over a thousand
times that explosive power.

Since the mind is numbed by such abstract figures and cannot compre-
hend them, they have been graphically concretized in various ways. One
of them is to picture the quantity of TNT represented by a single one-
megaton bomb, in terms of its transport by rail. It has been estimated
that this would require a train 200 miles long'!$. When one is carrying
death and destruction to an enemy in war through the use of a single one-
megaton bomb, it assists the comprehension of this phenomenon to think

13 Cited in Robert S. Hartman, “The Revolution against War”, in The Critique of War,
p. 324.

14 “They serve to build these figments of hell into the system of power politics, and to
dim the minds of the nuclear citizens.” (Jbid., p. 325.)

15 N. Singh and E. McWhinney, Nuclear Weapons and Contemporary International
Law, 1989, p. 29.

16 Bates, op. cit., p. 719.

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in terms of a 200-mile train loaded with TNT being driven into enemy
territory, to be exploded there. It cannot be said that international law
would consider this legal. Nor does it make any difference if the train is
not 200 miles long, but 100 miles, 50 miles, 10 miles, or only 1 mile. Nor,
again, could it matter if the train is 1,000 miles long, as would be the case
with a 5-megaton bomb, or 4,000 miles long, as would be the case with a
20-megaton bomb.

Such is the power of the weapon upon which the Court is deliberating
— power which dwarfs all historical precedents, even if they are consid-
ered cumulatively. A 5-megaton weapon would represent more explosive
power than ail of the bombs used in World War IJ and a 20-megaton
bomb “more than all of the explosives used in all of the wars in the his-
tory of mankind” !”.

The weapons used at Hiroshima and Nagasaki are “small” weapons
compared with those available today and, as observed earlier, a one-
megaton bomb would represent around 70 Hiroshimas and a 15-megaton
bomb around 1,000 Hiroshimas. Yet the unprecedented magnitude of its
destructive power is only one of the unique features of the bomb. It is
unique in its uncontainability in both space and time. It is unique as a
source of peril to the human future. It is unique as a source of continuing
danger to human health, even long after its use. Its infringement of
humanitarian law goes beyond its being a weapon of mass destruction!$;
to reasons which penetrate far deeper into the core of humanitarian law.

Atomic weapons have certain special characteristics distinguishing them
from conventional weapons, which were summarized by the United
States Atomic Energy Commission in terms that:

“it differs from other bombs in three important respects: first, the
amount of energy released by an atomic bomb is a thousand or more
times as great as that produced by the most powerful TNT bombs;
secondly, the explosion of the bomb is accompanied by highly
penetrating and deleterious invisible rays, in addition to intense
heat and light; and, thirdly, the substances which remain after the
explosion are radio-active, emitting radiations capable of producing
harmful consequences in living organisms” !.

'7 Bates, op. cit., p. 719.

18 The Final Document of the First Special Session of the United Nations General
Assembly devoted to Disarmament (1978) unanimously categorized nuclear weapons as
weapons of mass destruction, a conclusion which was adopted by consensus (CR 95/25,
p. 17).

19 Effects of Atomic Weapons, prepared by the United States Atomic Energy Commis-
sion in co-operation the Department of Defense, 1950, cited in Singh and McWhinney,
op. cit., p. 30.

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The following more detailed analysis is based on materials presented to
the Court, which have not been contradicted at the hearings, even by the
States contending that the use of nuclear weapons is not illegal. They
constitute the essential factual foundation on which the legal arguments
rest, and without which the legal argument is in danger of being reduced
to mere academic disputation.

(a) Damage to the environment and the ecosystem”

The extent of damage to the environment, which no other weapon is
capable of causing, has been summarized in 1987 by the World Commis-
sion on the Environment and Development in the following terms:

“The likely consequences of nuclear war make other threats to the
environment pale into insignificance. Nuclear weapons represent a
qualitatively new step in the development of warfare. One thermo-
nuclear bomb can have an explosive power greater than all the
explosives used in wars since the invention of gunpowder. In addi-
tion to the destructive effects of blast and heat, immensely magnified
by these weapons, they introduce a new lethal agent — ionising
radiation — that extends lethal effects over both space and time.”??

Nuclear weapons have the potential to destroy the entire ecosystem of
the planet. Those already in the world’s arsenals have the potential of
destroying life on the planet several times over.

Another special feature of the nuclear weapon, referred to at the hear-
ings, is the damage caused by ionizing radiation to coniferous forests,
crops, the food chain, livestock and the marine ecosystem.

(b) Damage to future generations

The effects upon the ecosystem extend, for practical purposes, beyond
the limits of all foreseeable historical time. The half-life of one of the by-
products of a nuclear explosion — plutonium 239 — is over 20,000 years.
With a major nuclear exchange it would require several of these “half-
life” periods before the residuary radioactivity becomes minimal. Half-
life is “the period in which the rate of radioactive emission by a pure

20 On environmental law, see further Section III.10 (f) below.

21 World Commission on Environment and Development (“the Brundtland Commis-
sion”), Our Common Future, 1987, p. 295, cited in CR 95/22, p. 55.

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sample falls by a factor of two. Among known radioactive isotopes, half-
lives range from about 1077 seconds to 10! years” 2”.

The following table gives the half-lives of the principal radioactive
elements that result from a nuclear test:

Nucleid Half-life
Cesium 137 30.2 years
Strontium 90 28.6 years
Plutonium 239 24,100 years
Plutonium 240 6,570 years
Plutonium 241 14.4 years
Americium 241 432 years?

Theoretically, this could run to tens of thousands of years. At any level
of discourse, it would be safe to pronounce that no one generation is
entitled, for whatever purpose, to inflict such damage on succeeding
generations.

This Court, as the principal judicial organ of the United Nations,
empowered to state and apply international law with an authority
matched by no other tribunal must, in its jurisprudence, pay due recogni-
tion to the rights of future generations. If there is any tribunal that can
recognize and protect their interests under the law, it is this Court.

It is to be noted in this context that the rights of future generations
have passed the stage when they were merely an embryonic right
struggling for recognition. They have woven themselves into interna-
tional law through major treaties, through juristic opinion and through
general principles of law recognized by civilized nations.

Among treaties may be mentioned, the 1979 London Ocean Dumping
Convention, the 1973 Convention on International Trade in Endangered
Species, and the 1972 Convention Concerning the Protection of the
World Cultural and Natural Heritage. All of these expressly incor-
porate the principle of protecting the natural environment for future
generations, and elevate the concept to the level of binding State obli-
gation.

Juristic opinion is now abundant, with several major treatises appear-
ing upon the subject and with such concepts as intergenerational equity
and the common heritage of mankind being academically well estab-
lished?*, Moreover, there is a growing awareness of the ways in which a
multiplicity of traditional legal systems across the globe protect the envi-
ronment for future generations. To these must be added a series of major

22 Encyclopaedia Britannica Micropaedia, 1992 ed., Vol. 9, p. 893.

23 Source: Radioecology, Holm ed., 1995, World Scientific Publishing Co.

24 For further references, see Edith Brown Weiss, In Fairness to Future Generations:
International Law, Common Patrimony and Intergenerational Equity, 1989.

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international declarations commencing with the 1972 Stockholm Decla-
ration on the Human Environment.

When incontrovertible scientific evidence speaks of pollution of the
environment on a scale that spans hundreds of generations, this Court
would fail in its trust if it did not take serious note of the ways in which
the distant future is protected by present law. The ideals of the United
Nations Charter do not limit themselves to the present, for they look for-
ward to the promotion of social progress and better standards of life, and
they fix their vision, not only on the present, but on “succeeding genera-
tions”. This one factor of impairment of the environment over such a
seemingly infinite time span would by itself be sufficient to call into
operation the protective principles of international law which the Court,
as the pre-eminent authority empowered to state them, must necessarily

apply.

(c) Damage to civilian populations

This needs no elaboration, for nuclear weapons surpass all other
weapons of mass destruction in this respect. In the words of a well-known
study of the development of international law:

“A characteristic of the weapons of mass destruction — the ABC
weapons — is that their destructive effect cannot be limited in space
and time to military objectives. Consequently their use would imply the
extinction of unforeseeable and indeterminable masses of the civilian
population. This means also that their actual employment would be —
even in the absence of explicit treaty provisions — contrary to interna-
tional law, but it is also true that the problem of the weapons of mass
destruction has grown out of the sphere of humanitarian law taken in
the narrow sense and has become one of the fundamental issues of the
peaceful coexistence of States with different social systems.” 2°

(d) The nuclear winter

One of the possible after-effects of an exchange of nuclear weapons is

- the nuclear winter, a condition caused by the accumulation of hundreds
of millions of tons of soot in the atmosphere, in consequence of fires in
cities, in forests and the countryside, caused by nuclear weapons. The
smoke cloud and the debris from multiple explosions blots out sunlight,
resulting in crop failures throughout the world and global starvation.
Starting with the paper by Turco, Toon, Ackerman, Pollack and Sagan
(known as the TTAPS study after the names of its authors) on “Nuclear

25 Géza Herczegh, Development of International Humanitarian Law, 1984, p. 93. “ABC
weapons” refer to atomic, biological and chemical weapons.

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Winter: Global Consequences of Multiple Nuclear Explosions”2, an
enormous volume of detailed scientific work has been done on the effect
of the dust and smoke clouds generated in nuclear war. The TTAPS
study showed that smoke clouds in one hemisphere could within weeks
move into the other hemisphere?’. TTAPS and other studies show that a
small temperature drop of a few degrees during the ripening season,
caused by the nuclear winter, can result in extensive crop failure even on
a hemispherical scale. Such consequences are therefore ominous for non-
combatant countries also.

“There is now a consensus that the climatic effects of a nuclear
winter and the resulting lack of food aggravated by the destroyed

26 Science, 23 December 1983, Vol. 222, p. 1283.

27 The movement of a cloud of dust particles from one hemisphere to another, with the
resultant effects resembling those of a nuclear winter, are not futuristic scenarios un-
related to past experience. In 1815, the eruption of the Indonesian volcano, Tambora,
injected dust and smoke into the atmosphere on a scale so great as to result in worldwide
crop failure and darkness in 1816. The Scientific American, March 1984, p. 58, repro-
duced a poem, “Darkness”, written by Lord Byron, thought to have been inspired by this
year without a summer. At a hearing of the United States Senate on the effects of nuclear
war, in December 1983, the Russian physicist, Kapitza, drew attention to this poem, in
the context of the effects of nuclear war, referring to it as one well known to Russians
through its translation by the novelist Ivan Turgenev. Here are some extracts, capturing
with poetic vision the human despair and the environmental desolation of the post-
nuclear scene:

“A fearful hope was all the world contain’d;
Forests were set on fire — but hour by hour
They fell and faded — and the crackling trunks
Extinguish’d with a crash — and all was black.
The brows of men by the despairing light
Wore an unearthly aspect, as by fits
The flashes fell upon them; some lay down
And hid their eyes and wept; . . .

... The world was void,

The populous and the powerful was a lump,
Seasonless, herbless, treeless, manless, lifeless —
A lump of death — a chaos of hard clay.

The rivers, lakes, and ocean all stood still,

And nothing stirr’d within their silent depths;

n

Ships sailorless lay rotting on the sea . . .”.

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infrastructure could have a greater overall impact on the global
population than the immediate effects of the nuclear explosions. The
evidence is growing that in a post-war nuclear world Homo Sapiens
will not have an ecological niche to which he could flee. It is appar-
ent that life everywhere on this planet would be threatened.” 28

(e) Loss of life

The WHO estimate of the number of dead in the event of the use of a
single bomb, a limited war and a total war varies from one million to one
billion, with, in addition, a similar number of injured in each case.

Deaths resulting from the only two uses of nuclear weapons in war —
Hiroshima and Nagasaki — were 140,000 and 74,000 respectively, accord-
ing to the representative of Japan, out of total populations of 350,000
and 240,000 respectively. Had these same bombs been exploded in cities
with densely packed populations of millions, such as Tokyo, New York,
Paris, London or Moscow, the loss of life would have been incalculably
more.

An interesting statistic given to the Court by the Mayor of Nagasaki is
that the bombing of Dresden by 773 British aircraft followed by a shower
of 650,000 incendiary bombs by 450 American aircraft caused 135,000
deaths — a similar result to a single nuclear bomb on Hiroshima — a
“small” bomb by today’s standards.

(f) Medical effects of radiation

Nuclear weapons produce instantaneous radiation, in addition to which
there is also radioactive fallout.

“It is well established that residual nuclear radiation is a feature of
the fission or Atomic bomb as much as the thermo-nuclear weapon
known as the ‘fusion bomb’ or H-bomb.” ”?

Over and above the immediate effects just set out, there are longer
term effects caused by ionizing radiation acting on human beings and on

28 Wilfrid Bach, “Climatic Consequences of Nuclear War”, in Proceedings of the Sixth
World Congress of the International Physicians for the Prevention of Nuclear War
(IPPNW), Cologne, 1986, published as Maintain Life on Earth!, 1987, p. 154.

2 Singh and McWhinney, op. cit., p. 123.

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the environment. Such ionization causes cell damage and the changes
that occur may destroy the cell or diminish its capacity to function*?.

After a nuclear attack the victim population suffers from heat, blast
and radiation, and separate studies of the effects of radiation are com-
plicated by injuries from blast and heat. Chernobyl has however given an
opportunity for study of the effects of radiation alone, for:

“Chernobyl represents the largest experience in recorded time of
the effects of whole body radiation on human subjects, uncompli-
cated by blast and/or burn.” 3!

Apart from the long-term effects such as keloids and cancers, these
effects include in the short-term anorexia, diarrhoea, cessation of produc-
tion of new blood cells, haemorrhage, bone marrow damage, damage to
the central nervous system, convulsions, vascular damage, and cardio-
vascular collapse *?.

Chernobyl, involving radiation damage alone, in a comparatively
lightly populated area, strained the medical resources of a powerful
nation and necessitated the pouring in of medical personnel, supplies and
equipment from across the Soviet Union — 5,000 trucks, 800 buses,
240 ambulances, helicopters and special trains. Yet the Chernobyl explo-
sion was thought to be approximately that of a half-kiloton bomb** —
about one twenty-fifth of the comparatively “small” Hiroshima bomb,
which was only one seventieth the size of a one-megaton bomb. As
observed already, the nuclear arsenals contain multi-megaton bombs
today.

The effects of radiation are not only agonizing, but are spread out over
an entire lifetime. Deaths after a long life of suffering have occurred in
Hiroshima and Nagasaki, decades after the nuclear weapon hit those
cities. The Mayor of Hiroshima has given the Court some glimpses of the
lingering agonies of the survivors — all of which is amply documented in
a vast literature that has grown up around the subject. Indonesia made
reference to Antonio Cassese’s Violence and Law in the Modern Age
(1988), which draws attention to the fact that “the quality of human suf-

30 Herbert Abrams, “Chernobyl and the Short-Term Medical Effects of Nuclear War”,
in Proceedings of the IPPNW Congress, op. cit., p. 122.

31 Jbid., p. 120.

32 Jbid., pp. 122-125.

33 Ibid., p. 121.

34 Jbid., p. 127.

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fering . . . does not emerge from the figures and statistics only . . . but
from the account of survivors”. These records of harrowing suffering are
numerous and well known“.

Reference should also be made to the many documents received by the
Registry in this regard, including materials from the International Sym-
posium: Fifty Years since the Atomic Bombing of Hiroshima and Naga-
saki. It is not possible in this opinion even to attempt the briefest sum-
mary of the details of these sufferings.

The death toll from lingering death by radiation is still adding to the
numbers. Over 320,000 people who survived but were affected by radia-
tion suffer from various malignant tumours caused by radiation, includ-
ing leukaemia, thyroid cancer, breast cancer, lung cancer, gastric cancer,
cataracts and a variety of other after-effects more than half a century
later, according to statistics given to the Court by the representative of
Japan. With nuclear weapons presently in the world’s arsenals of several
multiples of the power of those explosions, the scale of damage expands
exponentially.

As stated by WHO (CR 95/22, pp. 23-24), overexposure to radiation
suppresses the body’s immune systems and increases victims’ vulnerabil-
ity to infection and cancers.

Apart from an increase in genetic effects and the disfiguring keloid
tumours already referred to, radiation injuries have also given rise to
psychological traumas which continue to be noted among the survivors
of Hiroshima and Nagasaki. Radiation injuries result from direct expo-
sure, from radiation emitted from the ground, from buildings charged
with radioactivity, and from radioactive fallout back to the ground
several months later from soot or dust which had been whirled up into
the stratosphere by the force of the explosion*®.

In addition to these factors, there is an immense volume of specific
material relating to the medical effects of nuclear war. A fuller account of
this medical material appears in my dissenting opinion on the WHO
request (C.J. Reports 1996, pp. 115-127). That medical material should
also be considered as incorporated in this account of the unique effects of
the nuclear weapon.

35 Among the internationally known contemporary accounts are John Hersey, Hiro-
shima (to which The New Yorker devoted its whole issue of 31 August 1946, and which
has since appeared as a Penguin Classic, 1946); Hiroshima Diary: The Journal of a Japa-
nese Physician August 6-September 30, 1945, by Michihiko Hachiya, M.D., University of
North Carolina Press, 1955; and The Day Man Lost: Hiroshima, 6 August 1945, Kodan-
sha, 1972. They are all part of a voluminous documentation.

36 Over the effects of radiation, see, generally, Nuclear Radiation in Warfare, 1981, by
Professor Joseph Rotblat, the Nobel Laureate.

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‘(g) Heat and blast

Nuclear weapons cause damage in three ways — through heat, blast
and radiation. As stated by the WHO representative, while the first two
differ quantitatively from those resulting from the explosion of conven-
tional bombs, the third is peculiar to nuclear weapons. In addition to
instantaneous radiation, there is also radioactive fallout.

The distinctiveness of the nuclear weapon can also be seen from sta- -
tistics of the magnitude of the heat and blast it produces. The representa-
tive of Japan drew our attention to estimates that the bomb blasts in
Hiroshima and Nagasaki produced temperatures of several million
degrees centigrade and pressures of several hundred thousand atmo-
spheres. In the bright fireball of the nuclear explosion, the temperature
and pressure are said indeed to be the same as those at the centre of the
sun’. Whirlwinds and firestorms were created approximately 30 minutes
after the explosion. From these causes 70,147 houses in Hiroshima and
18,400 in Nagasaki were destroyed. The blastwind set up by the initial
shockwave had a speed of nearly 1,000 miles per hour, according to
figures given to the Court by the Mayor of Hiroshima. The blast

“turns people and debris into projectiles that hurl into stationary
objects and into each other. Multiple fractures, puncture wounds
and the smashing of skulls, limbs and internal organs makes the list
of possible injuries endless.” 38

(h) Congenital deformities

The intergenerational effects of nuclear weapons mark them out from
other classes of weapons. As the delegation of the Solomon Islands put it,
the adverse effects of the bomb are

“virtually permanent — reaching into the distant future of the
human race — if it will have a future, which a nuclear conflict would
put in doubt” (CR 95/32, p. 36).

Apart from damage to the environment which successive generations will
inherit far into the future, radiation also causes genetic damage and will

37 Bates, op. cit., p. 722. Cf. the reference in The Bhagvadgita, “brighter than a thou-
sand suns”, which was widely used by nuclear scientists — as in Robert Jungk, Brighter
than a Thousand Suns: A Personal History of the Atomic Scientist, Penguin, 1982, and
Oppenheimer’s famous quote from the same source.

38 Ibid, p. 723.

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result in a crop of deformed and defective offspring, as proved in Hiro-
shima and Nagasaki (where those who were in the vicinity of the explo-
sion — the hibakusha — have complained for years of social discrimina-
tion against them on this account), and in the Marshall Islands and
elsewhere in the Pacific. According to the Mayor of Nagasaki:

“the descendants of the atomic bomb survivors will have to be moni-
tored for several generations to clarify the genetic impact, which
means that the descendants will be forced to live in anxiety for gen-
erations to come” (CR 95/27, p. 43).

The Mayor of Hiroshima told the Court that children “exposed in
their mothers’ womb were often born with microcephalia, a syndrome
involving mental retardation and incomplete growth” (ibid., p. 29). In
the Mayor’s words:

“For these children, no hope remains of becoming normal indi-
viduals. Nothing can be done for them medically. The atomic bomb
stamped its indelible mark on the lives of these utterly innocent
unborn babies.” (Jbid., p. 30.)

In Japan the social problem of hibakusha covers not only persons with
hideous keloid growths, but also deformed children and those exposed to
the nuclear explosions, who are thought to have defective genes which
transmit deformities to their children. This is a considerable human rights
problem, appearing long after the bomb and destined to span the
generations.

Mrs. Lijon Eknilang, from the Marshall Islands, told the Court of
genetic abnormalities never before seen on that island until the atmo-
spheric testing of nuclear weapons. She gave the Court a moving descrip-
tion of the various birth abnormalities seen on that island after the expo-
sure of its population to radiation. She said that Marshallese women

“give birth, not to children as we like to think of them, but to things

we could only describe as ‘octopuses’, ‘apples’, ‘turtles’, and other

things in our experience. We do not have Marshallese words for

these kinds of babies because they were never born before the radia-
| tion came.

Women on Rongelap, Likiep, Ailuk and other atolls in the Mar-

shall Islands have given birth to these ‘monster babies’. . . . One
woman on Likiep gave birth to a child with two heads. . . . There is

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a young girl on Ailuk today with no knees, three toes on each foot
and a missing arm...

The most common birth defects on Rongelap and nearby islands
have been ‘jellyfish’ babies. These babies are born with no bones in
their bodies and with transparent skin. We can see their brains and
hearts beating. . . . Many women die from abnormal pregnancies
and those who survive give birth to what looks like purple grapes
which we quickly hide away and bury. ...

My purpose for travelling such a great distance to appear before
the Court today, is to plead with you to do what you can not to
allow the suffering that we Marshallese have experienced to be
repeated in any other community in the world.” (CR 95/32, pp. 30-
31.)

From another country which has had experience of deformed births,
Vanuatu, there was a similar moving reference before the World Health
Assembly, when that body was debating a reference to this Court on
nuclear weapons. The Vanuatu delegate spoke of the birth, after nine
months, of “a substance that breathes but does not have a face, legs or
arms” *.

(i) Transnational damage

Once a nuclear explosion takes place, the fallout from even a single
local detonation cannot be confined within national boundaries.
According to WHO studies, it would extend hundreds of kilometres
downwind and the gamma ray exposure from the fallout could reach the
human body, even outside national boundaries, through radioactivity
deposited in the ground, through inhalation from the air, through con-
sumption of contaminated food, and through inhalation of suspended
radioactivity. The diagram appended to this opinion, extracted from the
WHO Study, comparing the areas affected by conventional bombs and
nuclear weapons, demonstrates this convincingly. Such is the danger to
which neutral populations would be exposed.

All nations, including those carrying out underground tests, are in
agreement that extremely elaborate protections are necessary in the case
of underground nuclear explosions in order to prevent contamination of
the environment. Such precautions are manifestly quite impossible in the

39 Record of the 13th Plenary Meeting, Forty-Sixth World Health Assembly, 14 May
1993, doc. A46/VR/13, p. 11, furnished to the Court by WHO.

40 See diagram appended from Effects of Nuclear War on Health and Health Services,
World Health Organization, 2nd ed., 1987, p. 16.

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case of the use of nuclear weapons in war — when they will necessarily be
exploded in the atmosphere or on the ground. The explosion of nuclear
weapons in the atmosphere creates such acknowledgedly deleterious
effects that it has already been banned by the Partial Nuclear Test Ban
Treaty, and considerable progress has already been made towards a
Total Test Ban Treaty. If the nuclear powers now accept that explosions
below ground, in the carefully controlled conditions of a test, are so
deleterious to health and the environment that they should be banned,
this ill accords with the position that above ground explosions in uncon-
trolled conditions are acceptable.

The transboundary effects of radiation are illustrated by the nuclear
meltdown in Chernobyl which had devastating effects over a vast area, as
the by-products of that nuclear reaction could not be contained. Human
health, agricultural and dairy produce and the demography of thousands
of square miles were affected in a manner never known before. On
30 November 1995, the United Nation’s Under-Secretary-General for
Humanitarian Affairs announced that thyroid cancers, many of them
being diagnosed in children, are 285 times more prevalent in Belarus than
before the accident, that about 375,000 people in Belarus, Russia and
Ukraine remain displaced and often homeless ——- equivalent to numbers
displaced in Rwanda by the fighting there — and that about 9 million
people have been affected in some way*!. Ten years after Chernobyl, the
tragedy still reverberates over large areas of territory, not merely in
Russia alone, but also in other countries such as Sweden. Such results,
stemming from a mere accident rather than a deliberate attempt to
cause damage by nuclear weapons, followed without the heat or the blast
injuries attendant on a nuclear weapon. They represented radiation
damage alone — only one of the three lethal aspects of nuclear weapons.
They stemmed from an event considerably smaller in size than the explo-
sions of Hiroshima and Nagasaki.

() Potential to destroy all civilization

Nuclear war has the potential to destroy all civilization. Such a result
could be achieved through the use of a minute fraction of the weapons
already in existence in the arsenals of the nuclear powers.

As Former Secretary of State, Dr. Henry Kissinger, once observed, in
relation to strategic assurances in Europe:

41 New York Times Service, reported in International Herald Tribune, 30 November
1995.

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“The European allies should not keep asking us to multiply stra-
tegic assurances that we cannot possibly mean, or if we do mean, we
should not want to execute because if we execute, we risk the
destruction of civilization.” ”

So, also, Robert McNamara, United States Secretary of Defense from
1961 to 1968, has written:

“Ts it realistic to expect that a nuclear war could be limited to the
detonation of tens or even hundreds of nuclear weapons, even though
each side would have tens of thousands of weapons remaining avail-
able for use? The answer is clearly no.”

Stocks of weapons may be on the decline, but one scarcely needs to
think in terms of thousands or even hundreds of weapons. Tens of weap-
ons are enough to wreak all the destructions that have been outlined at
the commencement of this opinion.

Such is the risk attendant on the use of nuclear weapons — a risk
which no single nation is entitled to take, whatever the dangers to itself.
An individual’s right to defend his own interests is a right he enjoys”
against his opponents. In exercising that right, he cannot be considered
entitled to destroy the village in which he lives.

(i) Social institutions

Ail the institutions of ordered society — judiciaries, legislatures, police,
medical services, education, transport, communications, postal and tele-
phone services, and newspapers — would disappear together in the
immediate aftermath of a nuclear attack. The country’s command centres
and higher echelons of administrative services would be paralysed. There
would be “social chaos on a scale unprecedented in human history” #.

(ai) Economic structures

Economically, society would need to regress even beyond that of the
Middle Ages to the levels of man’s most primitive past. One of the best
known studies examining this scenario summarizes the situation in this
way:

42 Henry A. Kissinger, “NATO Defense and the Soviet Threat”, Survival, November-
December 1979, p. 266 (address in Brussels), cited by Robert S. McNamara in “The Mili-
tary Role of Nuclear Weapons: Perceptions and Misperceptions”, Foreign Affairs, 1983-
1984, No. 62, Vol. 1, p. 59; emphasis added.

* Robert S. McNamara, op. cit., p. 71.

44 Bates, op. cit., p. 726.

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“The task .. . would be not to restore the old economy but to
invent a new one, on a far more primitive level. . . . The economy of
the Middle Ages, for example, was far less productive than our own,
but it was exceedingly complex, and it would not be within the
capacity of people in our time suddenly to establish a medieval eco-
nomic system in the ruins of their twentieth-century one. . . . Sitting
among the debris of the Space Age, they would find that the pieces
of a shattered modern economy around them — here an automobile,
there a washing machine — were mismatched to their elemental
needs... . [T]hey would not be worrying about rebuilding the auto-
mobile industry or the electronics industry: they would be worrying
about how to find nonradioactive berries in the woods, or how to
tell which trees had edible bark.”*

(iti) Cultural treasures

Another casualty to be mentioned in this regard is the destruction of
the cultural treasures representing the progress of civilization through the
ages. The importance of the protection of this aspect of civilization was
recognized by the Hague Convention of 14 May 1954, for the protection
of cultural property in the case of armed conflict, which decreed that cul-
tural property is entitled to special protection. Historical monuments,
works of art or places of worship which constitute the cultural or spirit-
ual heritage of peoples must not be the objects of any acts of hostility.

Additional Protocol II provides that cultural property and places of
worship which constitute the cultural and spiritual heritage of peoples
must not be attacked. Such attacks are grave breaches of humanitarian
law under the Conventions and the Protocol. The protection of culture in
wartime is considered so important by the world community that Unesco
has devised a special Programme for the Protection of Culture in War-
time. Whenever any cultural monuments were destroyed, there has been
a public outcry and an accusation that the laws of war had been violated.

Yet it is manifest that the nuclear bomb is no respecter of such cultural
treasures $, It will incinerate and flatten every object within its radius of
destruction, cultural monument or otherwise.

Despite the blitz on many great cities during World War II, many a
cultural monument in those cities stood through the war. That will not be
the case after nuclear war.

45 Jonathan Schell, The Fate of the Earth, 1982, pp. 69-70, cited in Bates, op. cit.,
p. 727.

46 On State responsibility to protect the cultural heritage, see Article 5 of the World
Heritage Convention, 1972 (The Convention for the Protection of the World Cultural and
Natural Heritage).

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That this is a feature of considerable importance in all countries can be
illustrated from the statistics in regard to one. The number of listed
monuments in the Federal Republic of Germany alone, in 1986, was
around 1 million, of which Cologne alone had around 9,000 listed build-
ings*’”. A nuclear attack on a city such as Cologne would thus deprive
Germany, in particular, and the world community in general, of a con-
siderable segment of their cultural inheritance, for a single bomb would
easily dispose of all 9,000 monuments, leaving none standing — a result
which no wartime bombing in World War II could achieve.

Together with all other structures, they will be part of the desert of
radioactive rubble left in the aftermath of the nuclear bomb. If the pres-
ervation of humanity’s cultural inheritance is of any value to civilization,
it is important to note that it will be an inevitable casualty of the nuclear
weapon.

(k) The electromagnetic pulse

Another feature distinctive to nuclear weapons is the electromagnetic
pulse. The literature indicates that this has the effect of displacing elec-
trons out of air molecules in the upper atmosphere and these electrons
are then displaced by the earth’s magnetic field. As they spin down and
around the lines of magnetic force, they transmit a very sudden and
intensive burst of energy — the electromagnetic pulse — which throws all
electronic devices out of action. As these systems go haywire, all commu-
nication lines are cut, health services (among other essential services) dis-
rupted and organized modern life collapses. Even the command and con-
trol systems geared for responses to nuclear attack can be thrown out
of gear, thus creating a fresh danger of unintended release of nuclear
weapons.

A standard scientific dictionary, Dictionnaire encyclopédique d’électro-
nique, describes the effects of the electromagnetic pulse in the following
terms:

“Electromagnetic pulse, nuclear pulse; strong pulse of electro-
magnetic energy radiated by a nuclear explosion in the atmosphere;
caused by collisions between the gamma rays emitted during the first
nanoseconds of the explosion and the electrons in the molecules in
the atmosphere; the electromagnetic pulse produced by a nuclear
explosion of an average force at around 400 km altitude can instantly
put out of service the greater part of semiconductor electronic equip-
ment in a large country, such as the United States, as well as a large

47 See Hiltrud Kier, “UNESCO Programme for the Protection of Culture in Wartime”,
in Documents of the Sixth World Congress of IPPNW, op. cit., p. 199.

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part of its energy distribution networks, without other effects being
felt on the ground, with military consequences easy to imagine.” *8

An important aspect of the electromagnetic pulse is that it travels at
immense speeds, so that the disruption of communication systems caused
by the radioactive contamination immediately can spread beyond national
boundaries and disrupt communication lines and essential services in
neutral countries as well. Having regard to the dominance of electronic
communication in the functioning of modern society at every level, this
would be an unwarranted interference with such neutral States.

Another important effect of the electromagnetic pulse is the damage to
electrical power and control systems from nuclear weapons — indeed
electromagnetic pulse could lead to a core melt accident in the event of
nuclear power facilities being in the affected area #.

(1) Damage to nuclear reactors

The enormous area of devastation and the enormous heat released
would endanger all nuclear power stations within the area, releasing dan-
gerous levels of radioactivity apart from that released by the bomb itself.
Europe alone has over 200 atomic power stations dotted across the con-
tinent, some of them close to populated areas. In addition, there are 150
devices for uranium enrichment*°. A damaged nuclear reactor could give
rise to:

“lethal doses of radiation to exposed persons 150 miles downwind
and would produce significant levels of radioactive contamination of
the environment more than 600 miles away” *!.

The nuclear weapon used upon any country in which the world’s current
total of 450 nuclear reactors is situated could leave in its wake a series of
Chernobyls. .

48 Michel Fleutry, Dictionnaire encyclopédique d'électronique (anglais-frangais), 1995,
p. 250. {Translation by the Registry. ]

49 Gordon Thompson, “Nuclear Power and the Threat of Nuclear War”, in Documents
of the Sixth World Congress of IPPNW, op. cit., p. 240.

50 William E. Butler (ed.), Control over Compliance with International Law, 1991, p. 24.

>! Bates, op. cit., p. 720.

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The effects of such radiation could include anorexia, cessation of pro-
duction of new blood cells, diarrhoea, haemorrhage, damage to. the bone
marrow, convulsions, vascular damage and cardiovascular collapse’.

(m) Damage to food productivity

Unlike other weapons, whose direct impact is the most devastating part of
the damage they cause, nuclear weapons can cause far greater damage by
their delayed after-effects than by their direct effects. The detailed technical
study, Environmental Consequences of Nuclear War, while referring to some
uncertainties regarding the indirect effects of nuclear war, states:

“What can be said with assurance, however, is that the Earth’s
human population has a much greater vulnerability to the indirect
effects of nuclear war, especially mediated through impacts on food
productivity and food availability, than to the direct effects of nuclear
war itself.” 53

The nuclear winter, should it occur in consequence of multiple nuclear
exchanges, could disrupt all global food supplies.

After the United States tests in the Pacific in 1954, fish caught in vari-
ous parts of the Pacific, as long as eight months after the explosions, were
contaminated and unfit for human consumption, while crops in various
parts of Japan were affected by radioactive rain. These were among the
findings of an international Commission of medical specialists appointed
by the Japanese Association of Doctors against A- and H-bombs™.
Further:

“The use of nuclear weapons contaminates water and food, as
well as the soil and the plants that may grow on it. This is not only
in the area covered by immediate nuclear radiation, but also a much
larger unpredictable zone which is affected by the radio-active fall-
out.”

(n) Multiple nuclear explosions resulting from self-defence

If the weapon is used in self-defence after an initial nuclear attack, the
ecosystem, which had already sustained the impact of the first nuclear
attack, would have to absorb on top of this the effect of the retaliatory

52 See Herbert Abrams, op. cit., pp. 122-125.

53 SCOPE publication 28, released at the Royal Society, London, on 6 January 1986,
Vol. I, p. 481.

$4 As referred to in Singh and McWhinney, op. cit., p. 124.

55 Jbid., p. 122.

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attack, which may or may not consist of a single weapon, for the stricken
nation will be so ravaged that it will not be able to make fine evaluations
of the exact amount of retaliatory force required. In such event, the ten-
dency to release as strong a retaliation as is available must enter into any
realistic evaluation of the situation. The ecosystem would in that event be
placed under the pressure of multiple nuclear explosions, which it would
not be able to absorb without permanent and irreversible damage.
Capital cities with densely packed populations could be targeted. The
fabric of civilization could be destroyed.

It is said of some of the most ruthless conquerors of the past that, after
they dealt with a rebellious town, they ensured that it was razed to the
ground with no sound or sign of life left in it — not even the bark of a
dog or the purr of a kitten. If any student of international law were asked
whether such conduct was contrary to the laws of war, the answer would
surely be “Of course!” There would indeed be some surprise that the
” question even needed to be asked. In this age of higher development, the
nuclear weapon goes much further, leaving behind it nothing but a total
devastation, wrapped in eerie silence.

(0) “The shadow of the mushroom cloud”

As pointed out in the Australian submissions (CR 95/22, p. 49), the
entire post-war generation lies under a cloud of fear — sometimes
described as the “shadow of the mushroom cloud”, which pervades all
thoughts about the human future. This fear, which has hung like a blan-
ket of doom over the thoughts of children in particular, is an evil in itself
and will last so long as nuclear weapons remain. The younger generation
needs to grow up in a climate of hope, not one of despair that at some
point in their life, there is a possibility of their life being snuffed out in an
instant, or their health destroyed, along with all they cherish, in a war to
which their nation may not even be a party.

*
* *

This body of information shows that, even among weapons of mass
destruction, many of which are already banned under international law,
the nuclear weapon stands alone, unmatched for its potential to damage
all that humanity has built over the centuries and all that humanity relies
upon for its continued existence.

I close this section by citing the statement placed before the Court by
Professor Joseph Rotblat, a member of the British team on the Manhat-
tan Project in Los Alamos, a Rapporteur for the 1983 WHO investiga-
tion into the Effects of Nuclear War on Health and Health Services, and
a Nobel Laureate. Professor Rotblat was a member of one of the delega-
tions, but was prevented by ill health from attending the Court.

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THREAT OR USE OF NUCLEAR WEAPONS (DISS. OP. WEERAMANTRY)

Here is a passage from his statement to the Court:

“T have read the written pleadings prepared by the United King-
dom and the United States. Their view of the legality of the use of
nuclear weapons is premised on three assumptions: (a) that they
would not necessarily cause unnecessary suffering; (b) that they
would not necessarily have indiscriminate effects on civilians;
(c) that they would not necessarily have effects on territories of
third States. It is my professional opinion — set out above and
in the WHO reports referred to — that on any reasonable set of
assumptions their argument is unsustainable on all three points.”
(CR 95/32, Annex, p. 2.)

4. The Uniqueness of Nuclear Weapons

After this factual review, legal argument becomes almost superfluous,
for it can scarcely be contended that any legal system can contain within
itself a principle which permits the entire society which it serves to be
thus decimated and destroyed — along with the natural environment
which has sustained it from time immemorial*. The dangers are so com-
pelling that a range of legal principles surges through to meet them.

It suffices at the present stage of this opinion to outline the reasons for
considering the nuclear weapon unique, even among weapons of mass
destruction. Nuclear weapons

(1)
(2)

(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)

(13)
(14)

cause death and destruction;
induce cancers, leukaemia, keloids and related afflictions;

cause gastro-intestinal, cardiovascular and related afflictions;

continue for decades after their use to induce the health-related
problems mentioned above;
damage the environmental rights of future generations;

cause congenital deformities, mental retardation and genetic dam-
age;

carry the potential to cause a nuclear winter;

contaminate and destroy the food chain;

imperil the ecosystem;

produce lethal levels of heat and blast;

produce radiation and radioactive fallout;

produce a disruptive electromagnetic pulse;

produce social disintegration;
imperil all civilization;

56 See further, on this aspect, Section V.1 below.

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(15) threaten human survival;

(16) wreak cultural devastation;

(17) span a time range of thousands of years;

(18) threaten all life on the planet;

(19) irreversibly damage the rights of future generations;

(20) exterminate civilian populations;
(21) damage neighbouring States;
(22) produce psychological stress and fear syndromes

as no other weapons do.

Any one of these would cause concern serious enough to place these
weapons in a category of their own, attracting with special intensity the
principles of humanitarian law. In combination they make the case for
their application irrefutable. This list is by no means complete. However,
to quote the words of a recent study:

“Once it becomes clear that all hope for twentieth century man is
lost if a nuclear war is started, it hardly adds any meaningful know-
ledge to learn of additional effects.” >’

The words of the General Assembly, in its “Declaration on the Preven-
tion of Nuclear Catastrophe” (1981), aptly summarize the entirety of the
foregoing facts:

“all the horrors of past wars and other calamities that have befallen
people would pale in comparison with what is inherent in the use of
nuclear weapons, capable of destroying civilization on earth” **.

Here then is the background to the consideration of the legal question
with which the Court is faced. Apart from this background of hard and
sordid fact, the legal question cannot be meaningfully addressed. Juxta-
pose against these consequences — so massively destructive of all the
principles of humanity — the accepted principles of humanitarian law,
and the result can scarcely be in doubt. As the ensuing discussion will
point out, humanitarian principles are grotesquely violated by the conse-
quences of nuclear weapons. This discussion will show that these effects
of the nuclear weapon and the humanitarian principles of the laws of war
are a contradiction in terms.

5. The Differences in Scientific Knowledge between the Present Time
and 1945

On 17 July 1945, United States Secretary of War, Stimson, informed
Prime Minister Churchill of the successful detonation of the experimental

57 Bates, op. cit., p. 721.
58 Resolution 36/100 of 9 December 1981.

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nuclear bomb in the New Mexican desert, with the cryptic message
“Babies satisfactorily born.” * A universe of knowledge has grown up
regarding the effects of the bomb since that fateful day when the advent
of this unknown weapon could, even cryptically, be so described.

True, much knowledge regarding the power of the bomb was available
then, but the volume of knowledge now available on the effects of
nuclear weapons is exponentially greater. In addition to numerous mili-
tary studies, there have been detailed studies by WHO and other con-
cerned organizations such as International Physicians for the Prevention
of Nuclear War (IPPNW); the TTAPS studies on the nuclear winter; the
studies of the Scientific Committee on Problems of the Environment
(SCOPE); the International Council of Scientific Unions (ICSU); the
United Nations Institute of Disarmament Research (UNIDIR); and
literally hundreds of others. Much of this material has been placed
before the Court or deposited in the library by WHO and various States
that have appeared before the Court in this matter.

Questions of knowledge, morality and legality in the use of nuclear
weapons, considered in the context of 1995, are thus vastly different from
those questions considered in the context of 1945, and need a totally fresh
approach in the light of this immense quantity of information. This addi-
tional information has a deep impact upon the question of the legality
now before the Court.

Action with full knowledge of the consequences of one’s act is totally
different in law from the same action taken in ignorance of its conse-
quences. Any nation using the nuclear weapon today cannot be heard to
say that it does not know its consequences. It is only in the context of this
knowledge that the question of legality of the use of nuclear weapons can
be considered in 1996.

6. Do Hiroshima and Nagasaki Show that Nuclear War Is Survivable ?

Over and above all these specific aspects of the rules of humani-
tarian law, and in a sense welding them together in one overall consid-
eration, is the question of survivability of the target population —
indeed, of the human race. Survivability is the limit situation of each
individual danger underlying each particular principle of humanitarian
law. The extreme situation that is reached if each danger is pressed to
the limit of its potential is the situation of non-survivability. We reach
that situation with nuclear war. In the fact that nuclear war could spell

°° Winston Churchill, The Second World War, Vol. 6, “Triumph and Tragedy”, 1953,
p. 63.

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the end of the human race and of all civilization, all these principles thus
coalesce.

A fact that obscures perception of the danger that nuclear war may
well be unsurvivable is the experience of Hiroshima and Nagasaki. The
fact that nuclear weapons were used in Japan and that that nation
emerged from the war resilient and resurgent may lull the observer into a
sense of false security that nuclear war is indeed survivable. International
law itself has registered this complacency, for there is what may be
described as an underlying subliminal assumption that nuclear war has
been proved to be survivable.

It is necessary therefore to examine briefly some clear differences
between that elementary scenario of a nuclear attack half a century ago
and the likely characteristics of a nuclear war today. The following dif-
ferences may be noted:

1. The bombs used in Hiroshima and Nagasaki were of not more than
15 kilotons explosive power. The bombs available for a future nuclear
war will be many multiples of this explosive power.

2. Hiroshima and Nagasaki ended the war. The limit of that nuclear war
was the use of two “small” nuclear weapons. The next nuclear war,
should it come, cannot be assumed to be so restricted, for multiple
exchanges must be visualized.

3. The target country in Hiroshima and Nagasaki was not a nuclear
power. Nor were there any other nuclear powers to come to its assis-
tance. A future nuclear war, if it occurs, will be in a world bristling
with nuclear weapons which exist, not for display, but for a purpose.
The possibility of even a minute fraction of those weapons being
called into service is therefore an ever present danger to be reckoned
with in a future nuclear war.

4. Hiroshima and Nagasaki, important though they were, were not the
nerve centres of Japanese government and administration. Major
cities and capitals of the warring States are likely to be targeted in a
future nuclear war.

5. Major environmental consequences such as the nuclear winter —
which could result from a multiple exchange of nuclear weapons —
could not result from the “small” bombs used in Hiroshima and
Nagasaki.

Hiroshima and Nagasaki thus do not prove the survivability of nuclear
war. They are, rather, a forewarning on a minuscule scale of the dangers
to be expected in a future nuclear war. They remove any doubt that
might have existed, had the question of the legality of nuclear weapons
been argued on the basis of scientific data alone, without a practical
demonstration of their effect on human populations.

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Every one of the evils which the rules of humanitarian law are designed
to prevent thus comes together in the questions of survival attendant on
the future use of nuclear weapons in war.

7. A Perspective from the Past

This section of the present opinion has surveyed in the broadest outline
the effects of the bomb in the light of the known results of its use and in
the light of scientific information available today. The non-conformity of
the bomb with the norms of humanitarian law and, indeed, with the basic
principles of international law seems upon this evidence to be self-
evident, as more fully discussed later in this opinion.

It adds a sense of perspective to this discussion to note that even before
the evidence of actual use, and even before the wealth of scientific
material now available, a percipient observer was able, while the invention
of the nuclear bomb still lay far in the distance, to detect the antithesis
between the nuclear bomb and every form of social order — which would
of course include international law. H. G. Wells, in The World Set Free,
visualized the creation of the bomb on the basis of information already
known in 1913 resulting from the work of Einstein and others on the cor-
relation of matter and energy. Projecting his mind into the future with
remarkable prescience, he wrote in 1913:

“The atomic bombs had dwarfed the international issues to
complete insignificance . . . we speculated upon the possibility of
stopping the use of these frightful explosives before the world was
utterly destroyed. For to us it seemed quite plain these bombs, and
the still greater power of destruction of which they were the pre-
cursors, might quite easily shatter every relationship and institution
of mankind.” ©

The power that would be unleashed by the atom was known theoreti-
cally in 1913. That theoretical knowledge was enough, even without prac-
tical confirmation, to foresee that the bomb could shatter every human
relationship and institution, International law is one of the most delicate
of those relationships and institutions.

It seems remarkable that the permissibility of the weapon under inter-
national law is still the subject of serious discussion, considering that the
power of the bomb was awesomely demonstrated 40 years after its con-
sequences were thus seen as “quite plain”, and that the world has had a
further 50 years of time for reflection after that event.

60 H. G. Wells, The First Men in the Moon and The World Set Free, Literary Press,
London, undated reprint of 1913 ed., p. 237. See, also, the reference to Wells in R. J.
Lifton and Richard Falk, Indefensible Weapons, 1982, p. 59.

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WI. HUMANITARIAN LAW

It could indeed be said that the principal question before the Court is
whether the nuclear weapon can in any way be reconciled with the basic
principles of humanitarian law. |

The governance of nuclear weapons by the principles of humanitarian
law has not been in doubt at any stage of these proceedings, and has now
been endorsed by the unanimous opinion of the Court (para. 105 (2) D).
Indeed, most of the States contending that the use of nuclear weapons is
lawful have acknowledged that their use is subject to international
humanitarian law.

Thus the Russian Federation has stated:

“Naturally, all that has been said above does not mean that the
use of nuclear weapons is not limited at all. Even if the use of
nuclear weapons is in principle justifiable — in individual or collec-
tive self-defence — that use shall be made within the framework of
limitations imposed by humanitarian law with respect to means and
methods of conducting military activities. It is important to note
that with respect to nuclear weapons those limitations are limita-
tions under customary rather than treaty law.” (Written Statement,

p. 18.)
The United States states:

“The United States has long taken the position that various prin-
ciples of the international law of armed conflict would apply to the
use of nuclear weapons as well as to other means and methods of
warfare. This in no way means, however, that the use of nuclear
weapons is precluded by the law of war. As the following will
demonstrate, the issue of the legality depends on the precise
circumstances involved in any particular use of a nuclear weapon.”
(Written Statement, p. 21.)

So, also, the United Kingdom:

“It follows that the law of armed conflict by which the legality of
any given use of nuclear weapons falls to be judged includes all the
provisions of customary international law (including those which
have been codified in Additional Protocol I) and, where appropriate,
of conventional law but excludes those provisions of Protocol
I which introduced new rules into the law.” (Written Statement,
p. 46, para. 3.55.)

The subordination of nuclear weapons to the rules of humanitarian
law has thus been universally recognized, and now stands judicially con-
firmed as an incontrovertible principle of international law.

It remains then to juxtapose the leading principles of humanitarian law
against the known results of nuclear weapons, as already outlined. When

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the principles and the facts are lined up alongside each other, the total
incompatibility of the principles with the facts leads inescapably to but
one conclusion — that nuclear weapons are inconsistent with humanitar-
ian law. Since they are unquestionably governed by humanitarian law,
they are unquestionably illegal.

Among the prohibitions of international humanitarian law relevant to
this case are the prohibitions against weapons which cause superfluous
injury, weapons which do not differentiate between combatants and civil-
ians, and weapons which do not respect the rights of neutral States.

A more detailed consideration follows.

1. “Elementary Considerations of Humanity”

This phrase gives expression to a core concept of humanitarian law. Is the
conduct of a State in any given situation contrary to the elementary consid-
erations of humanity? One need go no further than to formulate this phrase,
and then recount the known results of the bomb as outlined above. The
resulting contrast between light and darkness is so dramatic as to occasion a
measure of surprise that their total incompatibility has even been in doubt.

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 leukaemias, 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 acts such these can conceivably
be compatible with “elementary considerations of humanity”. Unless one
can in all conscience answer such questions in the affirmative, the argu-
ment is at an end as to whether nuclear weapons violate humanitarian
law, and therefore violate international law.

President Woodrow Wilson, in an address delivered to a joint session
of Congress on 2 April 1917, gave elegant expression to this concept
when he observed:

“By painful stage after stage has that law been built up, with
meager enough results, indeed, .. . but always with a clear view, at
least, of what the heart and conscience of mankind demanded.” ©!

In relation to nuclear weapons, there can be no doubt as to “what the
heart and conscience of mankind” demand. As was observed by another

6! Address of the President of the United States at a Joint Session of the Two Houses
of Congress, 2 April 1917, reprinted in American Journal of International Law, 1917,
Vol. 11, Supp., p. 144. The President was speaking in the context of the indiscriminate
German submarine attacks on shipping which he described as “a warfare against man-
kind”.

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American President, President Reagan, “I pray for the day when nuclear
weapons will no longer exist anywhere on earth.”°? That sentiment,
shared by citizens across the world — as set out elsewhere in this opinion
— provides the background to modern humanitarian law, which has pro-
gressed from the time when President Wilson described its results as
“meager... indeed”.

The ensuing portions of this opinion are devoted to an examination of
the present state of development of the principles of humanitarian law.

2. Multicultural Background to the Humanitarian Laws of War

It greatly strengthens the concept of humanitarian laws of war to note
that this is not a recent invention, nor the product of any one culture.
The concept is of ancient origin, with a lineage stretching back at least
three millennia. As already observed, it is deep-rooted in many cultures
— Hindu, Buddhist, Chinese, Christian, Islamic and traditional African.
These cultures have all given expression to a variety of limitations on the
extent to which any means can be used for the purposes of fighting one’s
enemy. The problem under consideration is a universal problem, and this
Court is a universal Court, whose composition is required by its Statute
to reflect the world’s principal cultural traditions ®. The multicultural
traditions that exist on this important matter cannot be ignored in the
Court’s consideration of this question, for to do so would be to deprive
its conclusions of that plenitude of universal authority which is available
to give it added strength — the strength resulting from the depth of the
tradition’s historical roots and the width of its geographical spread“.

Of special relevance in connection with nuclear weapons is the ancient
South Asian tradition regarding the prohibition on the use of hyper-
destructive weapons. This is referred to in the two celebrated Indian epics,
the Ramayana and the Mahabharatha, which are known and regularly
re-enacted through the length and breadth of South and South-East Asia,
as part of the living cultural tradition of the region. The references in
these two epics are as specific as can be on this principle, and they relate
to a historical period around three thousand years ago.

62 Speech of 16 June 1983, referred to by Robert S. McNamara, op. cit., p. 60.

63 I note in this context the sad demise of our deeply respected Latin American col-
league, Judge Andrés Aguilar-Mawdsley, six days before the hearings of the case com-
menced, thus reducing the Court to fourteen, and depriving its composition of a Latin
American component.

64 As observed in a contemporary study of the development of international humani-
tarian law, there is evidence “of efforts made by every people in every age to reduce the
devastation of war” (Herczegh, op. cit., p. 14).

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The Ramayana® tells the epic story of a war between Rama, prince of
Ayodhya in India, and Ravana, ruler of Sri Lanka. In the course of this
epic struggle, described in this classic in the minutest detail, a weapon of
war became available to Rama’s half-brother, Lakshmana, which could
“destroy the entire race of the enemy, including those who could not bear
arms”.

Rama advised Lakshmana that the weapon could not be used in the
war

“because such destruction en masse was forbidden by the ancient
laws of war, even though Ravana was fighting an unjust war with an
unrighteous objective” 56.

These laws of war which Rama followed were themselves ancient in his
time. The laws of Manu forbade stratagems of deceit, all attacks on
unarmed adversaries and non-combatants, irrespective of whether the
war being fought was a just war or not®’. The Greek historian
Megasthenes® makes reference to the practice in India that warring
armies left farmers tilling the land unmolested, even though the battle
raged close to them. He likewise records that the land of the enemy was
not destroyed with fire nor his trees cut down”.

The Mahabharatha relates the story of an epic struggle between the
Kauravas and the Pandavas. It refers likewise to the principle forbidding
hyperdestructive weapons when it records that:

“Arjuna, observing the laws of war, refrained from using the
‘pasupathastra’, a hyper-destructive weapon, because when the fight
was restricted to ordinary conventional weapons, the use of extra-
ordinary or unconventional types was not even moral, let alone in
conformity with religion or the recognized laws of warfare.” 70

Weapons causing unnecessary suffering were also banned by the Laws
of Manu as, for example, arrows with hooked spikes which, after enter-

65 The Ramayana, Romesh Chunder Dutt (trans.).

66 See Nagendra Singh, “The Distinguishable Characteristics of the Concept of the Law
as It Developed in Ancient India”, in Liber Amicorum for the Right Honourable Lord
Wilberforce, 1987, p. 93. The relevant passage of The Ramayana is Yuddha Kanda
(Sloka), V1¥1.39.

67 Manusmrti, vii, 91, 92.

68 c. 350 BC-c. 290 BC — ancient Greek historian and diplomat sent on embassies by
Seleucus I to Chandragupta Maurya, who wrote the most complete account of India then
known to the Greek world.

6 Megasthenes, Fragments, cited in N. Singh, Juristic Concepts of Ancient Indian Pol-
ity, 1980, pp. 162-163.

70 Mahabharatha, Udyog Parva, 194.12, cited in Nagendra Singh, “The Distinguishable
Characteristics of the Concept of Law as It Developed in Ancient India”, op. cit., p. 93.

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ing the body would be difficult to take out, or arrows with heated or
poisoned tips”.

The environmental wisdom of ancient Judaic tradition is also reflected
in the following passage from Deuteronomy (20:19):

“When you are trying to capture a city, do not cut down its fruit
trees, even though the siege lasts a long time. Eat the fruit but do not
destroy the trees. The trees are not your enemies.” (Emphasis added.)

Recent studies of warfare among African peoples likewise reveal the
existence of humanitarian traditions during armed conflicts, with
moderation and clemency shown to enemies”. For example, in some cases
of traditional African warfare, there were rules forbidding the use of
particular weapons and certain areas had highly developed systems of
etiquette, conventions, and rules, both before hostilities commenced,
during hostilities, and after the cessation of hostilities — including a
system of compensation’?.

In the Christian tradition, the Second Lateran Council of 1139 offers
an interesting illustration of the prohibition of weapons which were too
cruel to be used in warfare — the crossbow and the siege machine, which
were condemned as “deadly and odious to God” 7. Nussbaum, in citing
this provision, observes that, it “certainly appears curious in the era of
the atomic bomb”. There was a very early recognition here of the dangers
that new techniques were introducing into the field of battle. Likewise, in
other fields of the law of war, there were endeavours to bring it within
some forms of control as, for example, by the proclamation of “Truces of
God” — days during which feuds were not permitted which were
expanded in some church jurisdictions to periods from sunset on Wednes-
day to sunrise on Monday”.

Gratian’s Decretum in the twelfth century was one of the first Christian
works dealing with these principles, and the ban imposed by the Second
Lateran Council was an indication of the growing interest in the subject.
However, in Christian philosophy, while early writers such as St. Augus-
tine examined the concept of the just war (jus ad bellum) in great detail,
the jus in bello was not the subject of detailed study for some centuries.

Vitoria gathered together various traditions upon the subject, includ-
ing traditions of knightly warfare from the age of chivalry; Aquinas

71 Manusmrti, VIL.90, cited in N. Singh, India and International Law, 1973, p. 72.

72 See Y. Diallo, Traditions africaines: et droit humanitaire, 1978, p. 16; E. Bello,
African Customary Humanitarian Law, ICRC, 1980, both referred to in Herezegh,
op. cit., p. 14.

73 Bello, op. cit., pp. 20-21.

74 Resolutions of the Second Lateran Council, Canon XXIX, cited by Nussbaum,
A Concise History of the Law of Nations, 1947, p. 25.

75 Ibid., p. 26.

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worked out a well-developed doctrine relating to the protection of non-
combatants; and other writers fed the growing stream of thought upon
the subject.

In the Islamic tradition, the laws of war forbade the use of poisoned
arrows or the application of poison on weapons such as swords or
spears ’°. Unnecessarily cruel ways of killing and mutilation were expressly
forbidden. Non-combatants, women and children, monks and places of
worship were expressly protected. Crops and livestock were not to be
destroyed’ by anyone holding authority over territory. Prisoners were to
be treated mercifully in accordance with such Qur’anic passages as “Feed
for the love of Allah, the indigent, the orphan and the captive.” 8 So well
developed was Islamic law in regard to conduct during hostilities that it
ordained not merely that prisoners were to be well treated, but that if
they made a last will during captivity, the will was to be transmitted to
the enemy through some appropriate channel”.

The Buddhist tradition went further still, for it was totally pacifist, and
would not countenance the taking of life, the infliction of pain, the taking
of captives or the appropriation of another’s property or territory in any
circumstances whatsoever. Since it outlaws war altogether, it could under
no circumstances lend its sanction to weapons of destruction — least of
all to a weapon such as the nuclear bomb.

“According to Buddhism there is nothing that can be called a ‘just
war’ — which is only a false term coined and put into circulation to
justify and excuse hatred, cruelty, violence and massacre. Who
decides what is just and unjust? The mighty and the victorious are
‘just’, and the weak and the defeated are ‘unjust’. Our war is always
‘just’ and your war is always ‘unjust’. Buddhism does not accept this
position.” 80

In rendering an advisory opinion on a matter of humanitarian law con-
cerning the permissibility of the use of force to a degree capable of
destroying all of humanity, it would be a grave omission indeed to
neglect the humanitarian perspectives available from this major segment
of the world’s cultural traditions®!.

76 See N. Singh, India and International Law, op. cit., p. 216.

77 Qur'an, 11.205.

78 Ibid., LXXVII.8; emphasis added.

79S. R. Hassan, The Reconstruction of Legal Thought in Islam, 1974, p. 177. See, gen-
erally, Majid Khadduri, War and Peace in the Law of Islam, 1955. For a brief summary
of the Islamic law relating to war, see C. G. Weeramantry, Islamic Jurisprudence: Some
International Perspectives, 1988, pp. 134-138.

80 Walpola Rahula, What the Buddha Taught, 1959, p. 84.

81 On Buddhism and international law, see, generally, K. N. Jayetilleke, “The Principles
of International Law in Buddhist Doctrine”, Recueil des cours de l’Académie de droit
international de La Haye, Vol. 120 (1967-D, pp. 441-567.

Ny

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Examples of the adoption of humanitarian principles in more recent
history are numerous. For example, in the Crimean War in 1855, the use
of sulphur was proposed at the Siege of Sebastopol, but would not be
permitted by the British Government, just as during the American Civil
War the use of chlorine in artillery shells by the Union forces was pro-
posed in 1862, but rejected by the Government *.

It is against such a varied cultural background that these questions
must be considered and not merely as though they are a new sentiment
invented in the nineteenth century and so slenderly rooted in universal
tradition that they may be lightly overridden.

Grotius’ concern with the cruelties of war is reflected in his lament that:

“when arms were once taken up, all reverence for divine and human
law was thrown away, just as if men were thenceforth authorized to
commit all crimes without restraint” #,

The foundations laid by Grotius were broad-based and emphasized the
absolute binding nature of the restrictions on conduct in war. In building
that foundation, Grotius drew upon the collective experience of human-
ity in a vast range of civilizations and cultures.

Grotius’ encyclopedic study of literature, from which he drew his prin-
ciples, did not of course cover the vast mass of Hindu, Buddhist and
Islamic literature having a bearing on these matters, and he did not have
the benefit of this considerable supplementary source, demonstrating the
universality and the extreme antiquity of the branch of law we call the jus
in bello.

3. Outline of Humanitarian Law

Humanitarian principles have long been part of the basic stock of con-
cepts embedded in the corpus of international law. Modern international
law is the inheritor of a more than hundred-year heritage of active
humanitarian concern with the sufferings of war. This concern has aimed
at placing checks upon the tendency, so often prevalent in war, to break
every precept of human compassion. It has succeeded in doing so in
several specific areas, but animating and underlying all those specific
instances are general principles of prevention of human suffering that
goes beyond the purposes and needs of war.

82 See L. S. Wolfe, “Chemical and Biological Warfare: Effects and Consequences”, »
McGill Law Journal, 1983, Vol. 28, p. 735. See, also, “Chemical Warfare” in Encyclopaedia
Britannica, 1959, Vol. 5, pp. 353- 358.

83 Grotius, Prolegomena, para. 28, trans. Whewell.

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The credit goes to the United States of America for one of the earliest
initiatives in reducing humanitarian law to written form for the guidance
of its armies. During the War of Secession, President Lincoln directed
Professor Lieber to prepare instructions for the armies of General Grant
— regulations which Mr. Martens, the delegate of Czar Nicholas II, ref-
erred to at the 1899 Peace Conference as having resulted in great benefit,
not only to the United States troops but also to those of the Southern
Confederacy. Paying tribute to this initiative, Martens described it as
an example, of which the Brussels Conference of 1874 convoked by
Emperor Alexander I, was “the logical and natural development”. This
conference in turn led to the Peace Conference of 1899, and in its turn to
the Hague Conventions which assume so much importance in this case**.

The St. Petersburg Declaration of 1868 provided that “the only legiti-
mate object which States should endeavour to accomplish during war is
to weaken the military forces of the enemy” — and many subsequent dec-
larations have adopted and reinforced this principle**. It gives expression
to a very ancient rule of war accepted by many civilizations *®*.

The Martens Clause, deriving its name from Mr. Martens, was, by
unanimous vote, inserted into the preamble to the Hague Convention H
of 1899, and Convention IV of 1907, with respect to the Laws and Customs
of War on Land. It provided that:

“Until a more complete code of the laws of war has been issued,
the High Contracting Parties deem it expedient to declare that, in
cases not included in the Regulations adopted by them, the inhabi-
tants and the belligerents remain under the protection and the rule
of the principles of the law of nations, as they result from the usages
established among civilized peoples, from the laws of humanity, and
the dictates of the public conscience.” (Emphasis added.)

Although the Martens Clause was devised to cope with disagreements
among the parties to the Hague Peace Conferences regarding the status
of resistance movements in occupied territory, it is today considered
applicable to the whole of humanitarian law®’. It appears in one form or

84 For Martens’s speech, see The Proceedings of the Hague Peace Conferences, op. cit.,
pp. 505-506.

85 The Hague Regulations of 1899 and 1907, Art. 25; the Hague Convention (IX) of
1907, Art. 1; League of Nations Assembly resolution of 30 September 1928; United
Nations General Assembly resolutions 2444 (XXIII of 19 December 1968 and 2675
(XXV) of 9 December 1970; Additional Protocol I to the 1949 Geneva Conventions,
Arts. 48 and 51.

86 See Section V.2. below on “The Aims of War”.

87 See D. Fleck (ed.), The Handbook of Humanitarian Law in Armed Conflicts, 1995,
p.29. :

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another in several major treaties on humanitarian law**. The Martens
Clause clearly indicates that, behind such specific rules as had already
been formulated, there lay a body of general principles sufficient to be
applied to such situations as had not already been dealt with by a specific
rule®.

To be read in association with this is Article 22 of the 1907 Hague
Regulations which provides that, “The right of belligerents to adopt
means of injuring the enemy is not unlimited.”

These were indications also that international law, far from being
insensitive to such far-reaching issues of human welfare, has long recog-
nized the pre-eminent importance of considerations of humanity in fash-
ioning its attitudes and responses to situations involving their violation,
however they may occur. These declarations were made, it is to be noted,
at a time when the development of modern weaponry was fast accelerat-
ing under the impact of technology. It was visualized that more sophis-
ticated and deadly weaponry was on the drawing boards of military
establishments throughout the world and would continue to be so for the
foreseeable future. These principles were thus meant to apply to weapons
existing then as well as to weapons to be created in the future, weapons
already known and weapons as yet unvisualized. They were general prin-
ciples meant to be applied to new weapons as well as old.

The parties to the Geneva Conventions of 1949 expressly recognized
the Martens Clause as a living part of international law — a proposition
which no international jurist could seriously deny.

As McDougal and Feliciano have observed:

“To accept as lawful the deliberate terrorization of the enemy
community by the infliction of large-scale destruction comes too
close to rendering pointless all legal limitations on the exercise of
violence.” °°

88 First Geneva Convention 1949, Art. 63, para. 4; Second Geneva Convention,
Art. 62, para. 4; Third Geneva Convention, Art. 142, para. 4; Fourth Geneva Conven-
tion, Art. 158, para. 4; Inhumane Weapons Convention, 1980, Preamble, para. 5.

89 At the last meeting of the Fourth Commission of the Peace Conference, on 26 Sep-
tember 1907, Mr. Martens summarized its achievements in terms that,

“If from the days of antiquity to our own time people have been repeating the
Roman adage ‘Inter arma silent leges’, we have loudly proclaimed, ‘Inter arma vivant
leges’. This is the greatest triumph of law and justice over brute force and the neces-
sities of war.” (J. B. Scott, “The Conference of 1907”, The Proceedings of the Hague
Peace Conferences, 1921, Vol. TI, p. 914.)

90 M. S. McDougal and F. P. Feliciano, Law and Minimum World Public Order: The
” Legal Regulation of International Coercion, 1961, p. 657.

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International law has long distinguished between conventional
weapons and those which are unnecessarily cruel. It has also shown a con-
tinuing interest in this problem. For example, the Convention on Pro-
hibitions or Restrictions on the Use of Certain Conventional Weapons
Which May be Deemed to be Excessively Injurious or to Have Indis-
criminate Effects, 1980, dealt in three separate Protocols with such
weapons as those which injure by fragments, which in the human body
escape detection (Protocol I); Mines, Booby Traps and Other Devices
(Protocol ID); and Incendiary Weapons (Protocol III).

If international law had principles within it strong enough in 1899 to
recognize the extraordinary cruelty of the “dum dum” or exploding bullet
as going beyond the purposes of war®!, and projectiles diffusing asphyxi-
ating or deleterious gases as also being extraordinarily cruel’, it would
cause some bewilderment to the objective observer to learn that in 1996 it
is so weak in principles that, with over a century of humanitarian law
behind it, it is still unable to fashion a response to the cruelties of nuclear
weapons as going beyond the purposes of war. At the least, it would seem
passing strange that the expansion within the body of a single soldier of
a single bullet is an excessive cruelty which international law has been
unable to tolerate since 1899, and that the incineration in one second of
a hundred thousand civilians is not. This astonishment would be com-
pounded when that weapon has the capability, through multiple use, of
endangering the entire human species and all civilization with it.

Every branch of knowledge benefits from a process of occasionally
stepping back from itself and scrutinizing itself objectively for anomalies
and absurdities. If a glaring anomaly or absurdity becomes apparent and
remains unquestioned, that discipline is in danger of being seen as floun-
dering in the midst of its own technicalities. International law is happily
not in this position, but if the conclusion that nuclear weapons are illegal
is wrong, it would indeed be.

As will appear from the ensuing discussion, international law is not so
lacking in resources as to be unable to meet this unprecedented challenge.
Humanitarian law is not a monument to uselessness in the face of the
nuclear danger. It contains a plethora of principles wide enough, deep
enough and powerful enough to handle this problem.

Humanitarian law has of course received recognition from the juris-

°1 International Declaration Respecting Expanding Bullets, signed at The Hague,
29 July 1899.

° International Declaration Respecting Asphyxiating Gases, signed at The Hague,
29 July 1899.

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prudence of this Court (for example, Corfu Channel, I. C.J. Reports 1949,
p. 22; Border and Transborder Armed Actions (Nicaragua v. Honduras),
LC J. Reports 1988, p. 114), but this Court has not so far had occasion
to examine it in any depth. This case offers it the opportunity par excel-
lence for so doing.

4. Acceptance by States of the Martens Clause

The Martens Clause has commanded general international acceptance.
It has been incorporated into a series of treaties, as mentioned elsewhere
in this opinion, has been applied by international judicial tribunals, has
been incorporated into military manuals®?, and has been generally
accepted in international legal literature as indeed encapsulating in its
short phraseology the entire philosophy of the law of war.

At the Krupp Trial (1948), it was described as:

“a general clause, making the usages established among civilised
nations, the laws of humanity and the dictates of the public con-
science into the legal yardstick to be applied if and when the specific
provisions of the Convention and the Regulations annexed to it do
not cover specific cases occurring in warfare, or concomitant to war-
fare” 74,

The Clause has been described by Lord Wright as furnishing the key-
note to the Hague Regulations which particularize a great many war
crimes,

“leaving the remainder to the governing effect of that sovereign
clause which does really in a few words state the whole animating
and motivating principle of the law of war, and indeed of all law,
because the object of all law is to secure as far as possible in the
mutual relations of the human beings concerned the rule of law and
of justice and of humanity” *°.

The Martens Clause has thus become an established and integral part
of the corpus of current customary international law. International law
has long passed the stage when it could be debated whether such prin-
ciples had crystallized into customary international law. No State would
today repudiate any one of these principles.

A generally accepted test of recognition of rules of customary interna-
tional law is that the rule should be “so widely and generally accepted,

93 See Section H1.10 (a) below.

°4 Law Reports of Trials of War Criminals, Vol. 10, p. 133.

95 Foreword by Lord Wright to the last volume of the Law Reports of Trials of War
Criminals, Vol. 15, p. xiii. See, further, the discussion of the Martens Clause in Singh and
McWhinney, op. cit., pp. 46 et seq., referring, inter alia, to the two passages cited above.

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that it can hardly be supposed that any civilized State would repudiate
it”°*, While no State today would repudiate any one of these principles,
what seems to be in dispute is the application of those principles to the
specific case of nuclear weapons which, for some unarticulated reason,
seem to be placed above and beyond the rules applicable to other
weapons. If humanitarian law regulates the lesser weapons for fear that
they may cause the excessive harm which those principles seek to prevent,
it must a fortiori regulate the greater. The attempt to place nuclear
weapons beyond the reach of these principles lacks the support not only
of the considerations of humanity, but also of the considerations of logic.

These considerations are also pertinent to the argument that custom-
ary law cannot be created over the objection of the nuclear weapon States
(United States Written Statement, p. 9)?’. The general principles of cus-

,tomary law applicable to the matter commanded the allegiance of the
nuclear-weapon States long before nuclear weapons were invented. It is
on those general principles that the illegality of nuclear weapons rests.

It seems clear that if the principles are accepted and remain undis-
puted, the applicability of those principles to the specific case of nuclear
weapons cannot reasonably be in doubt.

5. “The Dictates of Public Conscience”

This phraseology, stemming from the Martens Clause, lies at the heart
of humanitarian law. The Martens Clause and many subsequent formu-
lations of humanitarian principles recognize the need that strongly held
public sentiments in relation to humanitarian conduct be reflected in the
law.

The phrase is, of course, sufficiently general to pose difficulties in cer-
tain cases in determining whether a particular sentiment is shared widely
enough to come within this formulation.

However, in regard to the use or threat of use of nuclear weapons,
there is no such uncertainty, for on this issue the conscience of the global
community has spoken, and spoken often, in the most unmistakable
terms. Resolutions of the General Assembly over the years are not the
only evidence of this. Vast numbers of the general public in practically
every country, organized professional bodies of a multinational charac-
ter?®, and many other groupings across the world have proclaimed time
and again their conviction that the public conscience dictates the non-use
of nuclear weapons. Across the world, presidents and prime ministers,

96 West Rand Central Gold Mining Co., Ltd. v. R (1905), 2 KB, p. 407.
°7 On this aspect, see further Section VI.6 below.
98 See, on these organizations, Section VI.3 below.

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priests and prelates, workers and students, and women and children have
continued to express themselves strongly against the bomb and its
dangers. Indeed, this conviction underlies the conduct of the entire world
community of nations when, for example, in the NPT, it accepts that all
nuclear weapons must eventually be got rid of. The recent Non-Prolifera-
tion Review Conference of 1995 reconfirmed this objective. The work
currently in progress towards a total test ban treaty reconfirms this
again.

Reference is made in the next section (Section VI.6) to the heightening
of public sensitivity towards humanitarian issues, resulting from the vast
strides made by human rights law ever since the United Nations Charter
in 1945.

General Assembly resolutions on the matter are numerous”. To cite
just one of them, resolution 1653 (XVI) of 1961 declared that:

“The use of nuclear and thermo-nuclear weapons is contrary to
the spirit, letter and aims of the United Nations and, as such, a
direct violation of the Charter of the United Nations”

and asserted, with more specific reference to international law, that such
use was “contrary to the rules of international law and to the laws of
humanity”. In addition, the “threat” to use nuclear weapons, and not
merely their actual use, has been referred to by the General Assembly as
prohibited 100,

Nuclear weapons have been outlawed by treaty in numerous areas of
planetary space — the sea-bed, Antarctica, Latin America and the
Caribbean, the Pacific, and Africa, not to speak of outer space. Such
universal activity and commitment would be altogether inconsistent

% Resolution 1653 (XVI) of 24 November 1961 (“Declaration on the Prohibition of the
Use of Nuclear and Thermo-nuclear Weapons”); resolution 2936 (XXVII) of 29 Novem-
ber 1972 (“Non-Use of Force in International Relations and Permanent Prohibition of
the Use of Nuclear Weapons”); resolution 33/71 B of 14 December 1978 (“Non-Use of
Nuclear Weapons and Prevention of Nuclear War’); resolution 34/83 G of 11 December
1979 (“Non-Use of Nuclear Weapons and Prevention of Nuclear War”); resolution
36/921 of 9 December 1981 (“Non-Use of Nuclear Weapons and Prevention of Nuclear
War”); resolution 44/117 C of 15 December 1989 (“Convention on the Prohibition of the
Use of Nuclear Weapons”); resolution 45/59 B of 4 December 1990 (“Convention on the
Prohibition of the Use of Nuclear Weapons”); resolution 46/37 D of 6 December 1991
(“Convention on the Prohibition of the Use of Nuclear Weapons”). See, also, e.g., resolu-
tion 36/100 of 9 December 1981 (“Declaration on the Prevention of Nuclear Catas-
trophe”), para. 1 “States and statesmen that resort first to the use of nuclear weapons will
be committing the gravest crime against humanity”.

100 Resolution 2936 (XXVII) of 29 November 1972 (“Non-Use of Force in Interna-

tional Relations and Permanent Prohibition of the Use of Nuclear Weapons”), pream-
bular paragraph 10.

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with a global acceptance of the compatibility of these weapons with
the general principles of humanity. They point rather to a universal reali-
zation that there is in them an element which deeply disturbs the public
conscience of this age. |

As has been well observed in this regard:

“in this burgeoning human rights era especially, respecting an issue
that involves potentially the fate of human civilization itself, it is not
only appropriate but mandated that the legal expectations of all
members of human society, official and non-official, be duly taken
into account” !!,

It is a truism that there is no such thing as a unanimous opinion held
by the entire world community on any principle, however lofty. Yet it
would be hard to find a proposition so widely and universally accepted as
that nuclear weapons should not be used. The various expressions of
opinion on this matter “are expressive of a far-flung community consen-
sus that nuclear weapons and warfare do not escape the judgment of the
humanitarian rules of armed conflict” !.

The incompatibility between “the dictates of public conscience” and
the weapon appears starkly, if one formulates the issues in the form of
questions that may be addressed to the public conscience of the world, as
typified by the average citizen in any country.

Here are a few questions, from an extensive list that could be com-
piled:

Is it lawful for the purposes of war to induce cancers, keloid growths
or leukaemias in large numbers of the enemy population?

Is it lawful for the purposes of war to inflict congenital deformities and
mental retardation on unborn children of the enemy population?

Is it lawful for the purposes of war to poison the food supplies of the
enemy population?

Is it lawful for the purposes of war to inflict any of the above types of
damage on the population of countries that have nothing to do with the
quarrel leading to the nuclear war?

Many more such questions could be asked.
If it is conceivable that any of these questions can be answered in the
affirmative by the public conscience of the world, there may be a case for

191 Burns H. Weston, “Nuclear Weapons and International Law: Prolegomenon to
General Illegality”, New York Law School Journal of International and Comparative Law,
1982-1983, Vol. 4, p. 252, and authorities therein cited.

102 Jhid., p. 242.

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the legality of nuclear weapons. If it is not, the case against nuclear
weapons seems unanswerable.

6. Impact of the United Nations Charter and Human Rights
on “Considerations of Humanity”
and “Dictates of Public Conscience” ©

The enormous developments in the field of human rights in the post-
war years, commencing with the Universal Declaration of Human Rights
in 1948, must necessarily make their impact on assessments of such
concepts as “considerations of humanity” and “dictates of public con-
science”. This development in human rights concepts, both in their for-
mulation and in their universal acceptance, is more substantial than the
developments in this field for centuries before. The public conscience of
the global community has thus been greatly strengthened and sensitized
to “considerations of humanity” and “dictates of public conscience”.
Since the vast structure of internationally accepted human rights norms
and standards has become part of common global consciousness today in
a manner unknown before World War IL its principles tend to be
invoked immediately and automatically whenever a question arises of
humanitarian standards.

This progressive development must shape contemporary conceptions
of humanity and humanitarian standards, thus elevating the level of basic
expectation well above what it was when the Martens Clause was formu-
lated.

In assessing the magnitude of this change, it is helpful to recall that the
first movement towards modern humanitarian law was achieved in a cen-
tury (the nineteenth century) which is often described as the “Clause-
witzean century” for the reason that, in that century, war was widely
regarded as a natural means for the resolution of disputes, and a natural
extension of diplomacy. Global sentiment has moved an infinite distance
from that stance, for today the United Nations Charter outlaws all resort
to force by States (Art. 2 (4)), except in the case of self-defence (Art. 51).
The Court’s Opinion highlights the importance of these articles, with far-
reaching implications which this opinion has addressed at the every out-
set (see “Preliminary Observations”). There is a firm commitment in
Article 2 (3) that all members shall settle their international disputes by
peaceful means, in such manner that international peace and security,
and justice, are not endangered. This totally altered stance regarding the
normalcy and legitimacy of war has undoubtedly heightened the “dic-
tates of public conscience” in our time.

103 See, also, Section III.10 (g) below.

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Charter provisions bearing on human rights, such as Articles 1, 55, 62
and 76, coupled with the Universal Declaration of 1948, the twin Cov-
enants on Civil and Political Rights and Economic, Social and Cultural
Rights of 1966, and the numerous specific conventions formulating human
rights standards, such as the Convention against Torture — all of these,
now part of the public conscience of the global community, make the vio-
lation of humanitarian standards a far more developed and definite con-
cept than in the days when the Martens Clause emerged. Indeed, so well
are human rights norms and standards ingrained today in global con-
sciousness, that they flood through into every corner of humanitarian
law.

Submissions on these lines were made to the Court (for example, by
Australia, CR 95/22, p. 25) in presentations which drew attention further
to the fact that the General Assembly has noted the linkage between
human rights and nuclear weapons when it condemned nuclear war “as a
violation of the foremost human right — the right to life” 104,

Parallel to the developments in human rights, there has been another
vast area of development — environmental law, which has likewise
heightened the sensitivity of the public conscience to environmentally
related matters which affect human rights. As observed by the Interna-
tional Law Commission in its consideration of State responsibility, con-
duct gravely endangering the preservation of the human environment
violates principles “which are now so deeply rooted in the conscience of
mankind that they have become particularly essential rules of general
international law” 165,

7. The Argument that “Collateral Damage” Is Unintended

It is not to the point that such results are not directly intended, but are
“by-products” or “collateral damage” caused by nuclear weapons. Such
results are known to be the necessary consequences of the use of the
weapon. The author of the act causing these consequences cannot in any
coherent legal system avoid legal responsibility for causing them, any less
than a man careering in a motor vehicle at 150 kilometres per hour
through a crowded market street can avoid responsibility for the result-
ing deaths on the ground that he did not intend to kill the particular per-
sons who died.

104 General Assembly resolution 38/75 of 15 December 1983 (“Condemnation of Nuclear
War”), operative paragraph |.

105 Report of the International Law Commission on the work of its twenty-eighth ses-
sion, Yearbook of the International Law Commission, 1976, Vol. II, Part II, p. 109,
para. 33.

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The plethora of literature on the consequences of the nuclear weapon
is so much part of common universal knowledge today that no disclaimer
of such knowledge would be credible.

8. Illegality Exists Independently of Specific Prohibitions

Much of the argument of States opposing illegality was based on the
proposition that what is not expressly prohibited to a State is permitted.
Some practical illustrations would be of assistance in testing this proposi-
tion:

(a) If tomorrow a ray were invented which would immediately inciner-
ate all living things within a radius of 100 miles, does one need to
wait for an international treaty specifically banning it to declare
that it offends the basic principles of the jus in bello and cannot there-
fore be legitimately used in war? It would seem rather ridiculous to
have to await the convening of an international conference, the
drafting of a treaty, and all the delays associated with the process of
ratification, before the law can treat such a weapon as illegal.

(b) The fallacy of the argument that what is not expressly prohibited is
permitted appears further from an illustration used earlier in this
opinion. The argument advanced would presuppose that, immedi-
ately prior to the treaties outlawing bacteriological weapons, it was
legal to use warheads packed with the most deadly germs where-
with to cause lethal epidemics among the enemy population. This
conclusion strains credibility and is tenable only if one totally dis-
counts the pre-existing principles of humanitarian law.

The fact that no treaty or declaration expressly condemns the weapon
as illegal does not meet the point that illegality is based upon principles
of customary international law which run far deeper than any particular
weapon or any particular declaration. Every weapon proscribed by inter-
national law for its cruelty or brutality does not need to be specified any
more than every implement of torture needs to be specified in a general
prohibition against torture. It is the principle that is the subject of cus-
tomary international law. The particular weapon or implement of torture
becomes relevant only as an application of undisputed principles — prin-
ciples which have been more than once described as being such that no
civilized nation would deny them.

It will always be the case that weapons technologists will from time to
time invent weapons based on new applications of technology, which are
different from any weapons known before. One does not need to wait
until some treaty specifically condemns that weapon before declaring that
its use is contrary to the principles of international law.

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If, as is indisputably the case, the Martens Clause represents a univer-
sally accepted principle of international law, it means that beyond the
domain of express prohibitions there lies the domain of the general prin-
ciples of humanitarian law. It follows that “If an act of war is not
expressly prohibited by international agreements or customary law, this
does not necessarily mean that it is actually permissible.” 106

It is self-evident that no system of law can depend for its operation or
development on specific prohibitions ipsissimis verbis. Any developed
system of law has, in addition to its specific commands and prohibitions,
an array of general principles which from time to time are applied to
specific items of conduct or events which have not been the subject of an
express ruling before. The general principle is then applied to the specific
situation and out of that particular application a rule of greater specifi-
city emerges.

A legal system based on the theory that what is not expressly prohib-
ited is permitted would be a primitive system indeed, and international
law has progressed far beyond this stage. Even if domestic systems could
function on that basis, — which indeed is doubtful — international law,
born of generations of philosophical thinking, cannot. Modern legal
philosophy in many jurisdictions has exposed the untenability of this view
in regard to domestic systems and, a fortiori, the same applies to inter-
national law. As a well-known text on jurisprudence observes:

“The rules of every legal order have an enveloping blanket of prin-
ciples and doctrines as the earth is surrounded by air, and these not
only influence the operation of rules but sometimes condition their
very existence.” 107

More to the point than the question whether any treaty speaks of the
illegality of nuclear weapons is whether any single provision of any treaty
or declaration speaks of the /egality of nuclear weapons. The fact is that,
though there is a profusion of international documents dealing with
many aspects of nuclear weapons, not one of these contains the shred of
a suggestion that the use or threat of use of nuclear weapons is legal. By
way of contrast, the number of international declarations which expressly
pronounce against the legality or the use of nuclear weapons is legion.
These are referred to elsewhere in this opinion.

The general principles provide both nourishment for the development
of the law and an anchorage to the mores of the community. If they are
to be discarded in the manner contended for, international law would be
cast adrift from its conceptual moorings. “The general principles of law

106 D. Fleck, op. cit., p. 28, basing this principle on the Martens Clause.
107 Dias, Jurisprudence, 4th ed., 1976, p. 287.

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recognized by civilized nations” remains law, even though indiscriminate
mass slaughter through the nuclear weapon, irreversible damage to future
generations through the nuclear weapon, environmental devastation
through the nuclear weapon, and irreparable damage to neutral States
through the nuclear weapon are not expressly prohibited in international
treaties. If the italicized words are deleted from the previous sentence, no
one could deny that the acts mentioned therein are prohibited by inter-
national law. It seems specious to argue that the principle of prohibition
is defeated by the absence of particularization of the weapon.

The doctrine that the sovereign is free to do whatever statute does not
expressly prohibit is a long-exploded doctrine. Such extreme positivism in
legal doctrine has led humanity to some of its worst excesses. History has
demonstrated that power, unrestrained by principle, becomes power
abused. Black-letter formulations have their value, but by no stretch of
the imagination can they represent the totality of the law.

With specific reference to the laws of war, it would also set at nought
the words of the Martens Clause, whose express terms are that, “Until a
more complete code of the laws of war has been issued, the High Con-
tracting Parties .. . declare that, in cases not included in the Regulations
adopted by them . . .” (emphasis added), the humanitarian principles it
sets out would apply.

Thus, by express agreement, if that indeed were necessary, the wide
range of principles of humanitarian law contained within customary
international law would be applicable to govern this matter, for which no
specific provision has yet been made by treaty.

9. The “Lotus” Decision

Much of the argument based on the absence of specific illegality was
anchored to the “Lotus” decision. In that case, the Permanent Court
addressed its enquiry to the question:

“whether or not under international Jaw there is a principle which
would have prohibited Turkey, in the circumstances of the case
before the Court, from prosecuting Lieutenant Demons” (P.CIJ.,
Series A, No. 10, p. 21).

In the absence of such a principle or of a specific rule to which it had
expressly consented, it was held that the authority of a State could not be
limited.

Indeed, even within the terms of the “Lotus” case, these principles
become applicable, for, in relation to the laws of war, there is the express

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acceptance by the nuclear powers that the humanitarian principles of the
laws of war should apply. Apart from the nuclear powers, some other
powers who have opposed a finding of illegality before this Court (or not
adopted a clear-cut position in regard to the present request), were also
parties to the Hague Convention, for example, Germany, Netherlands,
Italy and Japan.

The “Lotus” case was decided in the context of a collision on the high
seas, in time of peace, between the Lotus, flying the French flag and a
vessel flying the Turkish flag. Eight Turkish-sailors and passengers died and
the French officer responsible was sought to be tried for manslaughter
in the Turkish courts. This was a situation far removed from that to
which the humanitarian laws of war apply. Such humanitarian law was
already a well-established concept at the time of the “Lotus” decision,
but was not relevant to it. It would have been furthest from the mind of
the Court deciding that case that its dictum, given in such entirely differ-
ent circumstances, would be used in an attempt to negative all that the
humanitarian laws of war had built up until that time — for the inter-
pretation now sought to be given to the “Lotus” case is nothing less than
that it overrides even such well-entrenched principles as the Martens
Clause, which expressly provides that its humanitarian principles would
apply “in cases not included in the Regulations adopted by them”.

Moreover, at that time, international law was generally treated in two
separate categories — the laws of peace and the laws of war — a distinc-
tion well recognized in the structure of the legal texts of that time. The
principle the “Lotus” court was enunciating was formulated entirely
within the context of the laws of peace.

It is implicit in “Lotus” that the sovereignty of other States should be
respected. One of the characteristics of nuclear weapons is that they vio-
late the sovereignty of other countries who have in no way consented to
the intrusion upon their fundamental sovereign rights, which is implicit in
the use of the nuclear weapon. It would be an interpretation totally out
of context that the “Lotus” decision formulated a theory, equally appli-
cable in peace and war, to the effect that a State could do whatever it
pleased so long as it had not bound itself to the contrary. Such an inter-
pretation of “Lotus” would cast a baneful spell on the progressive devel-
opment of international law.

It is to be noted also that just four years earlier, the Permanent Court,
in dealing with the question of State sovereignty, had observed in Nation-
ality Decrees Issued in Tunis and Morocco that the sovereignty of States
would be proportionately diminished and restricted as international law
developed (Advisory Opinion, 1923, P.C.LJ., Series B, No. 4, pp. 121-
125, 127, 130). In the half century that has elapsed since the “Lotus” case,
it is quite evident that international law — and the law relating to

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humanitarian conduct in war — have developed considerably, imposing
additional restrictions on State sovereignty over and above those that
existed at the time of the “Lotus” case. This Court’s own jurisprudence in
the Corfu Channel case sees customary international law as imposing a
duty on all States so to conduct their affairs as not to injure others, even
though there was no prohibition ipsissimis verbis of the particular act
which constituted a violation of the complaining nation’s rights. This
Court cannot in 1996 construe “Lotus” so narrowly as to take the law
backward in time even beyond the Martens Clause.

10. Specific Rules of the Humanitarian Law of War

There are several interlacing principles which together constitute the
fabric of international humanitarian law. Humanitarian law reveals not a
paucity, but rather an abundance of rules which both individually and
cumulatively render the use or threat of use of nuclear weapons illegal.

The rules of the humanitarian law of war have clearly acquired the
status of jus cogens, for they are fundamental rules of a humanitarian
character, from which no derogation is possible without negating the
basic considerations of humanity which they are intended to protect. In
the words of Roberto Ago, the rules of jus cogens include:

“the fundamental rules concerning the safeguarding of peace, and
notably those which forbid recourse to force or threat of force; fun-
damental rules of a humanitarian nature (prohibition of genocide,
slavery and racial discrimination, protection of essential rights of the
human person in time of peace and war); the rules prohibiting any
infringement of the independence and sovereign equality of States;
the rules which ensure to all members of the international commu-
nity the enjoyment of certain common resources (high seas, outer
space, etc.) 108.

The question under consideration is not whether there is a prohibition
in peremptory terms of nuclear weapons specifically so mentioned, but
whether there are basic principles of a jus cogens nature which are vio-
lated by nuclear weapons. If there are such principles which are of a jus
cogens nature, then it would follow that the weapon itself would be pro-
hibited under the jus cogens concept.

108 Recueil des cours de l'Académie de droit international de La Haye, Vol. 134 (1971),
p. 324, footnote 37; emphasis added. See, also, the detailed study of various peremp-
tory norms in the international law of armed conflict, in Lauri Hannikainen, Peremptory
Norms (Jus Cogens) in International Law, 1988, pp. 596-715, where the author finds that
many of the principles of the humanitarian law of war are jus cogens.

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As noted at the commencement of Part III, most of the States which
support the view that the use of nuclear weapons is lawful acknowledge
that international humanitarian law applies to their use, and that such
use must conform to its principles. Among the more important of the
relevant principles of international law are:

(a) the prohibition against causing unnecessary suffering;

(b) the principle of proportionality;

(c) the principle of discrimination between combatants and non-
combatants;

(d) the obligation to respect the territorial sovereignty of non-belliger-
ent States;

(e) the prohibition against genocide and crimes against humanity;

(f) the prohibition against causing lasting and severe damage to the
environment;

(g) human rights law.

(a) The prohibition against causing unnecessary suffering

The Martens Clause, to which reference has already been made, gave
classic formulation to this principle in modern law, when it spelt out the
impermissibility of weapons incompatible with “the laws of humanity
and the dictates of public conscience”.

The prohibition against cruel and unnecessary suffering, long a part of
the general principles of humanitarian law, has been embodied in such a
large number of codes, declarations, and treaties as to constitute a firm
and substantial body of law, each document applying the general prin-
ciples to a specific situation or situations '°*. They illustrate the existence
of overarching general principles transcending the specific instances dealt
with.

The principle against unnecessary suffering has moreover been incor-
porated into standard military manuals. Thus the British Manual of Mili-
tary Law, issued by the War Office in 1916, and used in World War I,
reads:

“IV. The Means of Carrying on War

39. The first principle of war is that the enemy’s powers of resis-
tance must be weakened and destroyed. The means that may be
employed to inflict injury on him are not however unlimited [foot-
note cites Hague Rules 22, ‘Belligerents have not an unlimited right

109 Examples are the Lieber Code of 1863 (adopted by the United States for the Gov-
ernment of Armies in the Field); the Declaration of St. Petersburg of 1868; the Hague
Conventions of 1899 and 1907; the Protocol for the Prohibition of the Use in War of
Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare of
1925; the Hague Rules of Air Warfare of 1923; the Nuremberg Charter of 1945; and the
four Geneva Conventions of 1949.

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as to the choice of means of injuring the enemy’]. They are in prac-
tice definitely restricted by international conventions and declara-
tions, and also by the customary rules of warfare. And, moreover,
there are the dictates of morality, civilization and chivalry, which
ought to be obeyed.

42. Itis expressly forbidden to employ arms, projectiles or material
calculated to cause unnecessary suffering [Hague Rules 23 (e)].
Under this heading might be included such weapons as lances with a
barbed head, irregularly shaped bullets, projectiles filled with broken
glass and the like; also the scoring of the surface of bullets, the filing
off the end of their hard case, and smearing on them any substance
likely to inflame or wound. The prohibition is not, however, intended
to apply to the use of explosives contained in mines, aerial tor-
pedoes, or hand-grenades.” (Pp. 242-243.)

Such was the Manual the British forces used in World War I, long
before the principles of humanitarian warfare were as well entrenched as
they now are!!°.

As early as 1862, Franz Lieber accepted the position that even military
necessity is subject to the law and usages of war, and this was incorpo-
rated in the instructions for the army!!!. Modern United States War
Department Field Manuals are in strict conformity with the Hague
Regulations and expressly subject military necessity to “the customary
and conventional laws of war” !12,

The facts set out in Part II of this opinion are more than sufficient to
establish that the nuclear weapon causes unnecessary suffering going far
beyond the purposes of war.

An argument that has been advanced in regard to the principle regard-
ing “unnecessary suffering” is that, under Article 23 {e) of the 1907
Hague Regulations, it is forbidden, “To employ arms, projectiles, or
material calculated to cause unnecessary suffering” (emphasis added).
The nuclear weapon, it is said, is not calculated to cause suffering, but
suffering is rather a part of the “incidental side effects” of nuclear weap-
ons explosions. This argument is met by the well-known legal principle
that the doer of an act must be taken to have intended its natural and
foreseeable consequences (see Section IIL.7 above). It is, moreover, a lit-

110 On the importance of validity of military manuals, see Singh and McWhinney,
op. cit., pp. 52-53.

111 General Orders 100, Instructions for the Government of the Armies of the United
States in the Field, s. 14.

112 Singh and McWhinney, op. cit., p. 59.

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eral interpretation which does not take into account the spirit and under-
lying rationale of the provision — a method of interpretation particularly
inappropriate to the construction of a humanitarian instrument. It may
also be said that nuclear weapons are indeed deployed “in part with a
view to utilising the destructive effects of radiation and fall-out” !"*.

(b) The principle of proportionality
See discussion in Part IV below, pages 514-516.

(c) The principle of discrimination

The principle of discrimination originated in the concern that weapons
of war should not be used indiscriminately against military targets and
civilians alike. Non-combatants needed the protection of the laws of war.
However, the nuclear weapon is such that non-discrimination is built into
its very nature. A weapon that can flatten a city and achieve by itself the
destruction caused by thousands of individual bombs is not a weapon
that discriminates. The radiation it releases over immense areas does not
discriminate between combatant and non-combatant, or indeed between
combatant and neutral States.

Article 48 of the Additional Protocol I to the Geneva Conventions of
1949 repeats as a “Basic Rule” the well-accepted rule of humanitarian
law:

“In order to ensure respect for and protection of the civilian popu-
lation and civilian objects, the Parties to the conflict shall at all times
distinguish between the civilian population and combatants and
between civilian objects and military objectives and accordingly shall
direct their operations only against military objectives.” (Emphasis
added.)

The rule of discrimination between civilian populations and military
personnel is, like some of the other rules of jus in bello, of ancient vintage
and shared by many cultures. We have referred already to the ancient
Indian practice that Indian peasants would pursue their work in the
fields, in the face of invading armies, confident of the protection afforded
them by the tradition that war was a matter for the combatants!!#, This
scenario, idyllic though it may seem, and so out of tune with the brutali-
ties of war, is a useful reminder that basic humanitarian principles such
as discrimination do not aim at fresh standards unknown before.

43 Tan Brownlie, “Some Legal Aspects of the Use of Nuclear Weapons”, International
and Comparative Law Quarterly, 1965, Vol. 14, p. 445.
114 Nagendra Singh, op. cit., footnote 69 above.

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The protection of the civilian population in times of armed conflict has
for long been a well-established rule of international humanitarian law.
Additional Protocol I to the Geneva Conventions (1949) provides by
Article 51 (5) (6)) that the “indiscriminate attacks” which it prohibits
include:

“an attack which may be expected to cause incidental loss of civilian
life, injury to civilians, damage to civilian objects, or a combination
thereof, which would be excessive in relation to the concrete and
direct military advantage anticipated”.

So, also, Article 57 (2) (6) prohibits attacks when:

“the attack may be expected to cause incidental loss of civilian life,
injury to civilians, damage to civilian objects, or a combination
thereof, which would be excessive in relation to the concrete and
direct military advantage anticipated”.

The many facets of this rule were addressed in the resolution of the
International Law Institute, passed at its Edinburgh Conference in
1969''5, which referred to them as prohibited by existing law as at that
date. The acts described as prohibited by existing law included the fol-
lowing:

“all attacks for whatsoever motive or by whatsoever means for the
annihilation of any group, region or urban centre with no possible
distinction between armed forces and civilian populations or between
military objectives and non-military objects” !!6:

“any action whatsoever designed to terrorize the civilian popula-
tion” !17;
’

“the use of all weapons which, by their nature, affect indiscrimi-
nately both military objectives and non-military objects, or both
armed forces and civilian populations. In particular, it prohibits the
use of weapons the destructive effect of which is so great that it
cannot be limited to specific military objectives or is otherwise
uncontrollable . . ., as well as of ‘blind’ weapons.” !!8

115 On the eminent juristic support for this proposition, see Section III.11 below.

116 Annuaire de l'Institut de droit international, 1969, No. 53, Vol. IL p. 377, para. 8;
Iran, CR 95/26, p. 47, footnote 45.

17 Annuaire de l’Institut de droit international, 1969, No. 53, Vol. II, p. 377, para. 6.

118 Tbid., para. 7.

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(d) Respect for non-belligerent States

When nuclear weapons are used their natural and foreseeable conse-
quence of irreparable damage to non-belligerent third parties is a neces-
sary consideration to be taken into reckoning in deciding the permissi-
bility of the weapon. It is not merely a single non-belligerent State that
might be irretrievably damaged, but the entire global community of
States. The uncontainability of radiation extends it globally. The
enormous area of damage caused by nuclear weapons, as compared with
the most powerful conventional weapons, appears from the diagram
appended to this opinion, which is taken from WHO studies. When wind
currents scatter these effects further, it is well established by the TTAPS
and other studies that explosions in one hemisphere can spread their
deleterious effects even to the other hemisphere. No portion of the globe
— and therefore no country — could be free of these effects.

The argument of lack of intention has been addressed in this context as
well. In terms of this argument, an action directed at an enemy State is
not intended to cause damage to a third party, and if such damage in fact
ensues, it is not culpable. This argument has already been dealt with in an
earlier section of this opinion, when it was pointed out that such an argu-
ment is untenable (see Section III.7). The launching of a nuclear weapon
is a deliberate act. Damage to neutrals is a natural, foreseeable and,
indeed, inevitable consequence. International law cannot contain a rule
of non-responsibility which is so opposed to the basic principles of uni-
versal jurisprudence.

(e) The prohibition against genocide!”

The Court’s treatment of the relevance of genocide to the nuclear
weapon is, in my view, inadequate (paragraph 26 of the Opinion).

Nuclear weapons used in response to a nuclear attack, especially in the
event of an all-out nuclear response, would be likely to cause genocide by
triggering off an all-out nuclear exchange, as visualized in Section IV
below. Even a single “small” nuclear weapon; such as those used in
Japan, could be instruments of genocide, judging from the number of
deaths they are known to have caused. If cities are targeted, a single
bomb could cause a death toll exceeding a million. If the retaliatory
weapons are more numerous, on WHO’s estimates of the effects of
nuclear war, even a billion people, both of the attacking State and of
others, could be killed. This is plainly genocide and, whatever the cir-
cumstances, cannot be within the law.

119 See, further, Section III.10 /g) below on human rights law.

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When a nuclear weapon is used, those using it must know that it will
have the effect of causing deaths on a scale so massive as to wipe out
entire populations. Genocide, as defined in the Genocide Convention
(Art. ID, means any act committed with intent to destroy, in whole or in
part, a national, ethnical, racial or religious group, as such. Acts included
in the definition are killing members of the group, causing serious bodily
or mental harm to members of the group, and deliberately inflicting on
the group conditions of life calculated to bring about its physical destruc-
tion in whole or in part.

In discussions on the definition of genocide in the Genocide Conven-
tion, much play is made upon the words “as such”. The argument offered
is that there must be an intention to target a particular national, ethnical,
racial or religious group qua such group, and not incidentally to some
other act. However, having regard to the ability of nuclear weapons to
wipe out blocks of population ranging from hundreds of thousands to
millions, there can be no doubt that the weapon targets, in whole or in
part, the national group of the State at which it is directed.

Nuremberg held that the extermination of the civilian population in
whole or in part is a crime against humanity. This is precisely what a
nuclear weapon achieves.

(f) The prohibition against environmental damage

The environment, the common habitat of all Member States of the
United Nations, cannot be damaged by any one or more members to the
detriment of all others. Reference has already been made, in the context
of dictates of public conscience (Section 111.6 above), to the fact that the
principles of environmental protection have become “so deeply rooted in
the conscience of mankind that they have become particularly essential
rules of general international law” !*°. The International Law Commis-
sion has indeed classified massive pollution of the atmosphere or of the
seas as an international crime!?!. These aspects have been referred to
earlier. .

Environmental law incorporates a number of principles which are vio-
lated by nuclear weapons. The principle of intergenerational equity and
the common heritage principle have already been discussed. Other prin-
ciples of environmental law, which this request enables the Court to
recognize and use in reaching its conclusions, are the precautionary prin-
ciple, the principle of trusteeship of earth resources, the principle that the

120 Report of the International Law Commission on the work of its twenty-eighth ses-
sion, Yearbook of the International Law Commission, 1976, Vol. Il, Part II, p. 109,
para. 33.

121 Draft Article 19 (3) (d) on “State Responsibility” of the International Law Com-
mission, ibid., p. 96.

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burden of proving safety lies upon the author of the act complained of,
and the “polluter pays principle”, placing on the author of environmental
damage the burden of making adequate reparation to those affected !”?.
There have been juristic efforts in recent times to formulate what have
been described as “principles of ecological security” — a process of norm
creation and codification of environmental law which has developed
under the stress of the need to protect human civilization from the threat
of self-destruction.

One writer !#3, in listing eleven such principles, includes among them
the “Prohibition of Ecological Aggression”, deriving this principle inter
alia from such documents as the 1977 Convention on the Prohibition of
Military or Any Other Hostile Use of Environmental Modification Tech-
niques which entered into force on 5 October 1978 (1108 UNTS, p. 151),
and the United Nations General Assembly resolution “Historical respon-
sibility of States for the preservation of nature for present and future gen-
erations” (General Assembly resolution 35/8 of 30 October 1980).

The same writer points out that,

“Under Soviet [now Russian] legal doctrine, the deliberate and
hostile modification of the environment — ecocide — is unlawful
and considered an international crime.” !2+

Another writer, drawing attention to the need for a co-ordinated,
collective response to the global environmental crisis and the difficulty
of envisioning such a response, observes:

“But circumstances are forcing just such a response; if we cannot
embrace the preservation of the earth as our new organizing prin-
ciple, the very survival of our civilization will be in doubt.” !75

Here, forcefully stated, is the driving force behind today’s environmen-
tal law — the “new organizing principle” of preservation of the earth,
without which all civilization is in jeopardy.

A means already at work for achieving such a co-ordinated collective
response is international environmental law, and it is not to be wondered

122 See the references to these principles in my dissenting opinion in Request for an
Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of
20 December 1974 in the Nuclear Tests (New Zealand v. France) Case, C.J. Reports
1995, pp. 339-347.

123 À. Timoshenko, “Ecological Security: Global Change Paradigm”, Columbia Jour-
nal of International Environmental Law and Policy, 1990, Vol. 1, p. 127.

124 Timoshenko, op. cit.

125 A. Gore, Earth in the Balance: Ecology and the Human Spirit, 1992, p. 295, cited in
Guruswamy, Palmer and Weston, International Environmental Law and World Order,
1994, p. 264.

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at that these basic principles ensuring the survival of civilization, and
indeed of the human species, are already an integral part of that law.

The same matter is put in another perspective in an outstanding study,
already referred to:

“The self-extinction of our species is not an act that anyone
describes as sane or sensible; nevertheless, it is an act that, without
quite admitting it to ourselves, we plan in certain circumstances to
commit. Being impossible as a fully intentional act, unless the per-
petrator has lost his mind, it can come about only through a kind of
inadvertence —- as a ‘side effect’ of some action that we do intend,
such as the defense of our nation, or the defense of liberty, or the
defense of socialism, or the defense of whatever else we happen to
believe in. To that extent, our failure to acknowledge the magnitude
and significance of the peril is a necessary condition for doing the
deed. We can do it only if we don’t quite know what we’re doing. If
we did acknowledge the full dimensions of the peril, admitting
clearly and without reservation that any use of nuclear arms is likely
to touch off a holocaust in which the continuance of all human life
would be put at risk, extinction would at that moment become not
only ‘unthinkable’ but also undoable.” 126

These principles of environmental law thus do not depend for their
validity on treaty provisions. They are part of customary international
law. They are part of the sine gua non for human survival.

Practical recognitions of the principle that they are an integral part of
customary international law are not difficult to find in the international
arena. Thus, for example, the Security Council, in resolution 687 of 1991,
referred to Iraq’s liability “under international law . . . for environmental
damage” resulting from the unlawful invasion of Kuwait. This was not a
liability arising under treaty, for Iraq was not a party to either the 1977
ENMOD Convention, nor the 1977 Protocols, nor any other specific
treaty dealing expressly with the matter. Iraq’s liability to which the Secu-
rity Council referred in such unequivocal terms was clearly a liability
arising under customary international law!7,

Nor are these principles confined to either peace or war, but cover both
situations, for they proceed from general duties, applicable alike in peace
and war !?8,

126 Jonathan Schell, The Fate of the Earth, 1982, p. 186.

27 A submission to this effect was made by the Solomon Islands in the hearings before
the Court (CR 95/32, Sands, p. 71).

128 See, for example, the phraseology of Principle 21 of the Stockholm Declaration and
Principle 2 of the Rio Declaration, referring to the duties of States to prevent damage to
the environment of other States.

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The basic principle in this regard is spelt out by Article 35 (3) of the 1977
Additional Protocol I to the Geneva Convention in terms prohibiting

“methods or means of warfare which are intended, or may be
expected, to cause widespread, long-term and severe damage to the
natural environment”.

Article 55 prohibits

“the use of methods or means of warfare which are intended or may
be expected to cause such damage to the natural environment and
thereby to prejudice the health or survival of the population”.

The question is not whether nuclear weapons were or were not intended
to be covered by these formulations. It is sufficient to read them as
stating undisputed principles of customary international law. To consider
that these general principles are not explicit enough to cover nuclear
weapons, or that nuclear weapons were designedly left unmentioned and
are therefore not covered, or even that there was a clear understanding
that these provisions were not intended to cover nuclear weapons, is to
emphasize the incongruity of prohibiting lesser weapons of environmen-
tal damage, while leaving intact the infinitely greater agency of causing
the very damage which it was the rationale of the treaty to prevent.

If there are general duties arising under customary international law, it
clearly matters not that the various environmental agreements do not
specifically refer to damage by nuclear weapons. The same principles
apply whether we deal with belching furnaces, leaking reactors or explo-
sive weapons. The mere circumstance that coal furnaces or reactors are
not specifically mentioned in environmental treaties cannot lead to the
conclusion that they are exempt from the incontrovertible and well-
established standards and principles laid down therein.

Another approach to the applicability of environmental law to the
matter before the Court is through the principle of good neighbourliness,
which is both impliedly and expressly written into the United Nations
Charter. This principle is one of the bases of modern international law,
which has seen the demise of the principle that sovereign States could
pursue their own interests in splendid isolation from each other. A world
order in which every sovereign State depends on the same global envi-
ronment generates a mutual interdependence which can only be imple-
mented by co-operation and good neighbourliness.

The United Nations Charter spells this out as “the general principle of
good-neighbourliness, due account being taken of the interests and well-
being of the rest of the world, in social, economic, and commercial mat-
ters” (Art. 74). A course of action that can destroy the global environ-
ment will take to its destruction not only the environment, but the social,

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economic and commercial interests that cannot exist apart from that
environment. The Charter’s express recognition of such a general duty of
good neighbourliness makes this an essential part of international law.

This Court, from the very commencement of its jurisprudence, has
supported this principle by spelling out the duty of every State not to
“allow knowingly its territory to be used for acts contrary to the rights of
other States” (Corfu Channel, I C.J. Reports 1949, p. 22).

The question of State responsibility in regard to the environment is
dealt with more specifically in my dissenting opinion on the WHO request
(C.J. Reports 1996, pp. 139-143), and that discussion must be regarded
as supplementary to the discussion of environmental considerations in
this opinion. As therein pointed out, damage to the environment caused
by nuclear weapons is a breach of State obligation, and this adds another
dimension to the illegality of the use or threat of use of nuclear weapons.

(g) Human rights law!?

This opinion has dealt in Section III.3 with the ways in which the
development of human rights in the post-war years has made an impact
on “considerations of humanity” and “dictates of public conscience”.

Concentrating attention more specifically on the rights spelt out in the
Universal Declaration of Human Rights, it is possible to identify the
right to dignity (Preamble and Art. 1), the right to life, the right to bodily
security (Art. 3), the right to medical care (Art. 25 (1)), the right to mar-
riage and procreation (Art. 16 (1)), the protection of motherhood and
childhood (Art. 25 (2)), and the right to cultural life (Art. 27 (1)), as basic
human rights which are endangered by nuclear weapons.

It is part of established human rights law doctrine that certain rights
are non-derogable in any circumstances. The right to life is one of them.
It is one of the rights which constitute the irreducible core of human
rights.

The preamble to the Declaration speaks of recognition of the inherent
dignity of all members of the human family as the foundation of free-
dom, justice and peace in the world. Article 1 follows this up with the
specific averment that “All human beings are born free and equal in dig-
nity and rights.” Article 6 states that everyone has the right to recogni-
tion everywhere as a person before the law. The International Covenant
on Civil and Political Rights made this right more explicit and imposed
on States the affirmative obligation of protecting it by law. Article 6 (1)

129 See, also, Section IIJ.6 below.

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states, “Every human being has the inherent right to life. This right shall
be protected by law.” States parties to the Covenant expressly assumed
the responsibility to implement the provisions of the Covenant.

The European Convention for the Protection of Human Rights and
Fundamental Freedoms (1950, Art. 2) and the American Convention of
Human Rights (1969, Art. 4) likewise confirm the right to life. It is one of
the non-derogable rights and an integral part of the irreducible core of
human rights.

It has been argued that the right to life is not an absolute right and that
the taking of life in armed hostilities is a necessary exception to this prin-
ciple. However, when a weapon has the potential to kill between one mil-
lion and one billion people, as WHO has told the Court, human life
becomes reduced to a level of worthlessness that totally belies human dig-
nity as understood in any culture. Such a deliberate action by an State is,
in any circumstances whatsoever, incompatible with a recognition by it of
that respect for basic human dignity on which world peace depends, and
respect for which is assumed on the part of all Member States of the
United Nations.

This is not merely a provision of the Universal Declaration on Human
Rights and other human rights instruments, but is fundamental Charter
law as enshrined in the very preamble to the United Nations Charter, for
one of the ends to which the United Nations is dedicated is “to reaffirm
faith in fundamental human rights, in the dignity and worth of the human
person” (emphasis added). No weapon ever invented in the long history
of man’s inhumanity to man has so negatived the dignity and worth of
the human person as has the nuclear bomb.

Reference should also be made to the General Comment of the United
Nations Human Rights Committee entitled “The Right to Life and
Nuclear Weapons” !?° which endorsed the view of the General Assembly
that the right to life is especially pertinent to nuclear weapons !*!. Stating
that nuclear weapons are among the greatest threats to life and the right
to life, it carried its view of the conflict between nuclear weapons and
international law so far as to propose that their use should be recognized
as crimes against humanity.

All of these human rights follow from one central right — a right
described by René Cassin as “the right of human beings to exist” (CR 95/
32, p. 64, including footnote 20). This is the foundation of the elaborate
structure of human rights that has been painstakingly built by the world
community in the post-war years. -

Any endorsement of the legality of the use, in any circumstances what

130 Gen. C 14/23, reproduced in M. Nowak, United Nations Covenant on Civil and
Political Rights, 1983, p. 861.

131 General Assembly resolution 38/75, “Condemnation of Nuclear War”, first opera-
tive paragraph.

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soever, of a weapon which can snuff out life by the million would tear out
the foundations beneath this elaborate structure which represents one of
the greatest juristic achievements of this century. That structure, built
upon one of the noblest and most essential concepts known to the law,
cannot theoretically be maintained if international law allows this right
to any State. It could well be written off the books.

Li. Juristic Opinion

It would be correct to say that the bulk of juristic opinion is of the view
that nuclear weapons offend existing principles of humanitarian law.
Juristic opinion is an important source of international law and there is
no room in this opinion for a citation of all the authorities. It will suffice,
for present purposes, to refer to a resolution already noted in an earlier part
of this discussion — the resolution adopted by the Institute of Interna-
tional Law in 1969, at its Edinburgh Session, at a time when juristic
writing on nuclear arms had not reached its present level of intensity and
was in fact quite scarce.

The finding of the Institute, already cited (see Section III.10 (6)
above), that existing international law prohibits, in particular, the use of
weapons whose destructive effect “is so great that it cannot be limited to
specific military objectives or is otherwise uncontrollable . . ., as well as of
‘blind’ weapons” 1% was adopted by 60 votes, with one against and two
abstentions. Those voting in favour included Charles De Visscher, Lord
McNair, Roberto Ago, Suzanne Bastid, Erik Castrén, Sir Gerald Fitz-
maurice, Wilfred Jenks, Sir Robert Jennings, Charles Rousseau, Grigory
Tunkin, Sir Humphrey Waldock, José Maria Ruda, Oscar Schachter and
Kotaro Tanaka, to select a few from an illustrious list of the most emi-
nent international lawyers of the time.

12. The 1925 Geneva Gas Protocol

Quite independently of the various general principles that have been
invoked in the discussion thus far, there is a conventional basis on which
it has been argued that nuclear weapons are illegal. It is for this reason
that I have voted against paragraph 2B of the dispositif which holds that
there is not, in conventional international law, a comprehensive and
universal prohibition of the threat or use of nuclear weapons as such.
I refer, in particular, to the Protocol for the Prohibition of the Use in
War of Asphyxiating, Poisonous or Other Gases and of Bacteriological
Methods of Warfare, 17 June 1925 (commonly referred to as the Geneva
Gas Protocol). It is so comprehensive in its prohibition that, in my view,
it clearly covers nuclear weapons, which thus become the subject of con-
ventional prohibition. There is considerable scholarly opinion favouring ~

132 Annuaire de l'Institut de droit international, 1969, No. 53, Vol. II, p. 377, para. 7.

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this view 33. Moreover, if radiation is a poison, it is caught up also by the
_prohibition on poison weapons contained in Article 23 (a) of the Hague
Regulations. The rule against poisonous weapons has indeed been
described as “The most time-honoured special prohibition on the subject
of weapons and instruments of war.” '*4 It is a rule recognized from the
remotest historical periods and in a wide spread of cultures.

The Geneva Gas Protocol was drafted in very wide terms. It prohibits
“the use in war of asphyxiating, poisonous, or other gases and of all
analogous liquids, materials or devices” (emphasis added).

If this Protocol is to be applicable to nuclear weapons, it must be shown:

(1) that radiation is poisonous; and
(2) that it involves the contact of materials with the human body.

If both these questions are answered in the affirmative, the damage to
the human body caused by radiation would be covered by the terms of
the Protocol.

(i) Is radiation poisonous ?

Poison is generally defined as a substance which, of its own force, dam-
ages health on contact with or absorption by the body !#. The discussion
of the effects of radiation in Section I.3 (f) above can leave one in no
doubt that the effects of radiation are that it destroys life or damages the.
functions of the organs and tissues.

Schwarzenberger points out that if introduced into the body in suffi-

‘33 See Burns H. Weston, op. cit., p. 241; E. Castrén, The Present Law of War and
Neutrality, 1954, p. 207; G. Schwarzenberger, The Legality of Nuclear Weapons, 1958,
pp. 37-38; N. Singh, Nuclear Weapons and International Law, 1959, pp. 162-166; Falk,
Meyrowitz and Sanderson, “Nuclear Weapons and International Law”, Indian Journal of
International Law, 1980, Vol. 20, p. 563; Julius Stone, Legal Controls of International
Conflict, 1954, p. 556; Spaight, Air Power and War Rights, 3rd ed., 1947, pp. 275-276;
H. Lauterpacht (ed.), in Oppenheim’s International Law, Vol. 2, 7th ed., 1952, p. 348.

134 Singh and McWhinney, op. cit., p. 120.

'35 The McGraw-Hill Dictionary of Scientific and Technical Terms defines poison as

“A substance that in relatively small doses has an action that either destroys life or
impairs seriously the functions of organs and tissues” (2nd ed., 1978, p. 1237).

The definition of poison in the Oxford English Dictionary is that poison is:

“Any substance which, when introduced to or absorbed by a living organism,
destroys life or injures health, irrespective of mechanical means or direct thermal
changes. Particularly applied to a substance capable of destroying life by rapid
action, and when taken in a small quantity. Fig. phr. to hate like poison.

But the more scientific use is recognized in the phrase slow poison, indicating the
accumulative effect of a deleterious drug or agent taken for a length of time.”
(Vol. XII, p. 2, 1989 ed.)

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ciently large doses, radiation produces symptoms indistinguishable from
poisoning 5%,

Once it is established that radioactive radiation is a poison, it is also
covered by the prohibition on poison weapons contained in the Hague
Regulations already referred to. It poisons, indeed in a more insidious
way than poison gas, for its effects include the transmission of genetic
disorders for generations.

The NATO countries have themselves accepted that poisoning is an
effect of nuclear weapons, for Annex II to the Protocol on Arms Control
of the Paris Agreements of 23 October 1954, on the accession of the
Republic of Germany to the North Atlantic Treaty, defines a nuclear
weapon as any weapon:

“designed to contain or utilise, nuclear fuel or radioactive isotopes
and which, by explosion or other uncontrolled nuclear transforma-
tion... is capable of mass destruction, mass injury or mass poison-
ing” (emphasis added).

(ii) Does radiation involve contact of the body with “materials”?

The definitions of poison speak of it in terms of its being a “sub-
stance”. The Geneva Gas Protocol speaks of “materials” which are
poisonous. It is necessary therefore to know whether radiation is a
“substance” or a “material”, or merely a ray such as a light ray which,
when it impinges on any object, does not necessarily bring a substance or
material in contact with that object. If it is the former, it would satisfy
the requirements of the Geneva Gas Protocol.

The definition of “radioactive” in the Shorter Oxford Dictionary is as
follows: “Capable (as radium) of emitting spontaneously rays consisting
of material particles travelling at high velocities.” 137

Scientific discussions 8 draw a distinction between the spectrum of
electromagnetic radiations that have zero mass when (theoretically) at
rest, such as radio waves, microwaves, infrared rays, visible light, ultra-
violet rays, x-rays, and gamma rays, and the type of radiation that
includes such particles as electrons, protons and neutrons which have

‘36 The Legality of Nuclear Weapons, 1958, p. 35. He remarks very severely that they
“inflict death or serious damage to health in, as Gentili would have put it, a manner more
befitting demons than civilised human beings”. The reference is to Gentili’s observation
that, though war is struggle between men, the use of such means as poison makes it “a
struggle of demons” (De Jure Belli Libri Tres (1612), Book II, Chap. VI, p. 161, trans.
J. C. Rolfe).

137 3rd ed., 1987, Vol. II, p. 1738; emphasis added.
138 See Encyclopaedia Britannica Macropaedia, Vol. 26, pp. 471 et seg. on “Radiation”.

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mass. When such forms of particulate matter travel at high velocities,
they are regarded as radiation.

The ionizing radiation caused by nuclear weapons is of the latter kind.
It consists inter alia of a stream of particles! coming into contact with
the human body and causing damage to tissues. In other words, it is a
material substance that causes damage to the body and cannot fall out-
side the prohibition of poisonous weapons laid down by the Geneva Gas
Protocol.

The question whether radiation is a “material” seems thus beyond
doubt. In the words of Schwarzenberger:

“the words ‘all analogous liquids, materials or devices’ are so com-
prehensively phrased as to include any weapons of an analogous
character, irrespective of whether they were known or in use at the
time of the signature of the Protocol. If the radiation and fall-out
effects of nuclear weapons can be likened to poison, all the more can
they be likened to poison gas. . .” 140

There has been some discussion in the literature of the question whether
the material transmitted should be in gaseous form as the provision in
question deals with materials “analogous” to gases. It is to be noted in
the first place that the wording of the provision itself takes the poisons
out of the category of gases because it speaks also of analogous liquids,
materials, and even devices. However, even in terms of gases, it is clear
that the distinction between solids, liquids and gases has never been
strictly applied in military terminology to the words “gas”. As Singh and
McWhinney point out, in strict scientific language, mustard gas is really
a liquid and chlorine is really a gas, but in military terminology both are
categorized as gas!4!,

The case that nuclear weapons are covered by the Geneva Gas Proto-
col seems therefore to be irrefutable. Further, if indeed radioactive radia-
tion constitutes a poison, the prohibition against it would be declaratory
of a universal customary law prohibition which would apply in any event
whether a State is party or not to the Geneva Protocol of 1925142.

Yet another indication, available in terms of the Geneva Gas Protocol,
is that the word “devices” would presumably cover a nuclear bomb, irre-
spective of the question whether radiation falls within the description of
“analogous materials”.

139 The definitions of radiation in the McGraw-Hill Dictionary of Physics and Math-
ematics (1978, p. 800) is “a stream of particles, . . . or high energy photons, or a mixture
of these”.

140 Op. cit., p. 38.

141 Op. cit., p. 126.

142 See, to this effect, Schwarzenberger, op. cit., pp. 37-38, in relation to chemical and
bacteriological weapons.

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Nuclear weapons, being unknown at the time of the documents under
consideration, could not be more specifically described, but are covered
by the description and intent of the Protocol and the Hague Regulations.

It has been submitted by the United States that:

“This prohibition was not intended to apply, and has not been
applied, to weapons that are designed to kill or injure by other
means, even though they may create asphyxiating or poisonous
byproducts.” (Written Statement, p. 25.)

If, in fact, radiation is a major by-product of a nuclear weapon — as
indeed it is — it is not clear on what jurisprudential principle an exemp-
tion can thus be claimed from the natural and foreseeable effects of the
use of the weapon. Such “by-products” are sometimes described as col-
lateral damage but, collateral or otherwise, they are a major consequence
of the bomb and cannot in law be taken to be unintended, well known as
they are.

Besides, such an argument involves the legally unacceptable contention
that if an act involves both legal and illegal consequences, the former jus-
tify or excuse the latter.

13. Article 23 (a) of the Hague Regulations

The foregoing discussion demonstrates that radiation is a poison.
Using the same line of reasoning, it follows that there is also a clear con-
travention of Article 23 (a) of the Hague Regulations which frames its
prohibition in unequivocal terms !#. No extended discussion is called for
in this context, and it is well accepted that the categorical prohibition
against poisoning therein contained is one of the oldest and most widely
recognized laws of war. Since “the universally accepted practice of civi-
lised nations has regarded poison as banned”, the prohibition contained
in Article 23 (a) has been considered as binding even on States not
parties to this conventional provision.

“Thus, apart from purely conventional law, the customary posi-
tion based on the general principles of law would also bar the use in
warfare of poisonous substances as not only barbarous, inhuman
and uncivilised, but also treacherous.” !“4

143 See Singh and McWhinney, op. cit., pp. 127 and 121.
144 Jhid., p. 121.

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IV. SELF-DEFENCE

Self-defence raises probably the most serious problems in this case.
The second sentence in paragraph 2E of the dispositif states that, in the
current state of international law and of the elements of fact at its dis-
posal, 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.
I have voted against this clause as I am of the view that the threat or use
of nuclear weapons would not be lawful in any circumstances what-
soever, as it offends the fundamental principles of the jus in bello. This
conclusion is clear and follows inexorably from well-established principles
of international law.

If a nation is attacked, it is clearly entitled under the United Nations
Charter to the right of self-defence. Once a nation thus enters into the
domain of the jus in bello, the principles of humanitarian law apply to the
conduct of self-defence, just as they apply to the conduct of any other
aspect of military operations. We must hence examine what principles of
the jus in bello apply to the use of nuclear weapons in self-defence.

The first point to be noted ts that the use of force in self-defence (which
is an undoubted right) is one thing and the use of nuclear weapens in self-
defence is another. The permission granted by international law for the
first does not embrace the second, which is subject to other governing
principles as well.

All of the seven principles of humanitarian law discussed in this
opinion apply to the use of nuclear weapons in self-defence, just as they
apply to their use in any aspect of war. Principles relating to unnecessary
suffering, proportionality, discrimination, non-belligerent States, geno-
cide, environmental damage and human rights would all be violated, no
less in self-defence than in an open act of aggression. The jus in bello
covers all use of force, whatever the reasons for resort to force. There can
be no exceptions, without violating the essence of its principles.

The State subjected to the first attack could be expected to respond in
kind. After the devastation caused by a first attack, especially if it be a
nuclear attack, there will be a tendency to respond with any nuclear fire-
power that is available.

Robert McNamara, in dealing with the response to initial strikes,
states:

“But under such circumstances, leaders on both sides would be
under unimaginable pressure to avenge their losses and secure the
interests being challenged. And each would fear that the opponent
might launch a larger attack at any moment. Moreover, they would
both be operating with only partial information because of the dis-

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ruption to communications caused by the chaos on the battlefield (to
say nothing of possible strikes against communication facilities).
Under such conditions, it is highly likely that rather than surrender,
each side would launch a larger attack, hoping that this step would
bring the action to a halt by causing the opponent to capitulate.” 14

With such a response, the clock would accelerate towards global catas-
trophe, for a counter-response would be invited and, indeed, could be
automatically triggered off.

It is necessary to reiterate here the undoubted right of the State that is
attacked to use all the weaponry available to it for the purpose of repuls-
ing the aggressor. Yet this principle holds only so long as such weapons
do not violate the fundamental rules of warfare embodied in those rules.
Within these constraints, and for the purpose of repulsing the enemy, the
full military power of the State that is attacked can be unleashed upon
the aggressor. While this is incontrovertible, one has yet to hear an argu-
ment in any forum, or a contention in any academic literature, that a
nation attacked, for example, with chemical or biological weapons is
entitled to use chemical or biological weapons in self-defence, or to anni-
hilate the aggressor’s population. It is strange that the most devastating
of all the weapons of mass destruction can be conceived of as offering a
singular exception to this most obvious conclusion following from the
bedrock principles of humanitarian law.

That said, a short examination follows of the various principles of
humanitarian law which could be violated by self-defence.

J. Unnecessary Suffering

The harrowing suffering caused by nuclear weapons, as outlined earlier
in this opinion, is not confined to the aggressive use of such weapons.
The lingering sufferings caused by radiation do not lose their intensity
merely because the weapon is used in self-defence.

2. Proportionality/Error

The principle of proportionality may on first impressions appear to be
satisfied by a nuclear response to a nuclear attack. Yet, viewed more
carefully, this principle is violated in many ways. As France observed:

“The assessment of the necessity and proportionality of a response
to attack depends on the nature of the attack, its scope, the danger it
poses and the adjustment of the measures of response to the desired
defensive purpose.” (CR 95/23, pp. 82-83.)

145 McNamara, op. cit., pp. 71-72.

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For these very reasons, precise assessment of the nature of the appro-
priate and proportionate response by a nation stricken by a nuclear
attack becomes impossible !*°. If one speaks in terms of a nuclear response
to a nuclear attack, that nuclear response will tend, as already noted, to
be an all-out nuclear response which opens up all the scenarios of global
armageddon which are so vividly depicted in the literature relating to an
all-out nuclear exchange.

Moreover, one is here speaking in terms of measurement — measure-
ment of the intensity of the attack and the proportionality of the response.
But one can measure only the measurable. With nuclear war, the quality
of measurability ceases. Total devastation admits of no scales of meas-
urement. We are in territory where the principle of proportionality
becomes devoid of meaning.

It is relevant also, in the context of nuclear weapons, not to lose sight
of the possibility of human error. However carefully planned, a nuclear
response to a nuclear attack cannot, in the confusion of the moment, be
finely graded so as to assess the strength of the weapons of attack, and to
respond in like measure. Even in the comparatively tranquil and leisured
atmosphere of peace, error is possible, even to the extent of unleashing an
unintentional nuclear attack. This has emerged from studies of uninten-
tional nuclear war'*’. The response, under the stress of nuclear attack,
would be far more prone to accident.

According to the Bulletin of the Atomic Scientists:

“Top decision-makers as well as their subordinate information
suppliers rely on computers and other equipment which have become
even more complex and therefore more vulnerable to malfunction.
Machine failures or human failures or a combination of the two
could, had they not been discovered within minutes, have caused
unintended nuclear war in a number of reported cases.” !48

The result would be all-out nuclear war.

Here again there is confirmation from statesmen, who have had much
experience in matters of foreign and military policy, that all-out nuclear
war is likely to ensue. Robert McNamara observes:

“Tt is inconceivable to me, as it has been to others who have
studied the matter, that ‘limited’ nuclear wars would remain limited
— any decision to use nuclear weapons would imply a high proba-

146 On this, see further Section II.3 /#) above and Section VII.6 below.
147 For example, Risks of Unintentional Nuclear War, United Nations Institute of Dis-

armament Research (UNIDIR), 1982.
148 June 1982, Vol. 38, p. 68.

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bility of the same cataclysmic consequences as a total nuclear
exchange.” +

Former Secretary of State, Dr. Kissinger, has also written to the same
effect:

“Limited war is not simply a matter of appropriate military forces
and doctrines. It also places heavy demands on the discipline and
subtlety of the political leadership and on the confidence of the soci-
ety in it. For limited war is psychologically a much more complex
problem than all-out war. ... An all-out war will in all likelihood be
decided so rapidly — if it is possible to speak of decision in such a
war — and the suffering it entails will be so vast as to obscure dis-
putes over the nuances of policy.” 150

He proceeds to observe:

“Limited nuclear war is not only impossible, according to this line
of reasoning, but also undesirable. For one thing, it would cause
devastation in the combat zone approaching that of thermonuclear
war in severity. We would, therefore, be destroying the very people
we were seeking to protect.” !5!

It is thus no fanciful speculation that the use of nuclear weapons in
self-defence would result in a cataclysmic nuclear exchange. That is a risk
which humanitarian law would consider to be totally unacceptable. It is a
risk which no legal system can sanction.

3. Discrimination

As already observed earlier in this opinion, nuclear weapons violate
the principle of discrimination between armed forces and civilians. True,
other weapons also do, but the intensity of heat and blast, not to speak of
radiation, are factors which place the nuclear weapon in a class apart
from the others. When one speaks of weapons that count their victims by
hundreds of thousands, if not millions, principles of discrimination cease
to have any legal relevance.

4. Non-belligerent States

One of the principal objections to the use of nuclear weapons in self-
defence occurs under this head. __
Self-defence is a matter of purely internal jurisdiction only if such

149 Op. cit., p. 72.
150 Henry Kissinger, Nuclear Weapons and Foreign Policy, 1957, p. 167.
151 Jbid., p. 175.

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defence can be undertaken without clearly causing damage to the rights
of non-belligerent States. The moment a strategy of self-defence implies
damage to a non-belligerent third party, such a matter ceases to be one
of purely internal jurisdiction. It may be that the act of self-defence
inadvertently and unintentionally causes damage to a third State. Such a
situation is understandable and sometimes does occur, but that is not
the case here.

5. Genocide

The topic of genocide has already been covered !*2. Self-defence, which
will, as shown in the discussion on proportionality, result in all probabil-
ity in all-out nuclear war, is even more likely to cause genocide than the
act of launching an initial strike. If the killing of human beings, in num-
bers ranging from a million to a billion, does not fall within the definition
of genocide, one may well ask what will.

No nation can be seen as entitled to risk the destruction of civilization
for its own national benefit.

6. Environmental Damage

Similar considerations exist here, as in regard to genocide. The wide-
spread contamination of the environment may even lead to a nuclear
winter and to the destruction of the ecosystem. These results will ensue
equally, whether the nuclear weapons causing them are used in aggres-
sion or in self-defence.

International law relating to the environment, in so far as it concerns
nuclear weapons, is dealt with at greater length in my dissenting opinion
on the World Health Organization request (.C.J. Reports 1996, pp. 139-
143), and the discussion in that opinion should be considered as supple-
mentary to the above discussion.

7. Human Rights

All the items of danger to human rights as recounted earlier in this
opinion would be equally operative whether the weapons are used in
aggression or in self-defence.

x * x

The humanitarian principles discussed above have long passed the

stage of being merely philosophical aspirations. They are the living law
and represent the highwatermark of legal achievement in the difficult task

152 See Section JJI.10 fe) above.

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of imposing some restraints on the brutalities of unbridled war. They
provide the ground-rules for military action today and have been forged
by the community of nations under the impact of the sufferings of untold
millions in two global cataclysms and many smaller wars. As with all
legal principles, they govern without distinction all nations great and
small.

It seems difficult, with any due regard to the consistency that must
underlie any credible legal system, to contemplate that all these hard-won
principles should bend aside in their course and pass the nuclear weapon
by, leaving that unparalleled agency of destruction free to achieve on
a magnified scale the very evils which these principles were designed to
prevent.

ES
* *

Three other aspects of the argument before the Court call for brief
mention in the context of self-defence.

The United Kingdom relied (Written Statement, para. 3.40) on a view
expressed by Judge Ago in his addendum to the Eighth Report on State
Responsibility, to the effect that:

“The action needed to halt and repulse the attack may well have
to assume dimensions disproportionate to those of the attack suf-
fered. What matters in this respect is the result to be achieved by the
‘defensive’ action, and not the forms, substance and strength of the
action itself.” 155

Ago is here stressing that the defensive action must always be related
to its purpose, that of halting and repelling the attack. As he observes, in
the same paragraph:

“The requirement of the proportionality of the action taken in
self-defence . .. concerns the relationship between that action and its
purpose, namely . . . that of halting and repelling the attack.”

That purpose is to halt and repulse the attack, not to exterminate the
aggressor, or to commit genocide of its population. His reference to
forms, substance and strength is expressly set out by him, within the con-
text of this purpose, and cannot be read as setting at nought all the other
requirements of humanitarian law such as those relating to damage to
neutral States, unnecessary suffering, or the principle of discrimination.
The statement of so eminent a jurist cannot be read in the sense of
neutralizing the classic and irreducible requirements of the jus in bello —
requirements which, moreover, had received massive endorsement from

153 Yearbook of the International Law Commission, 1980, Vol. II, Part I, p. 69,
para. 121.

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the Institute of International Law over which he was later to preside with
such distinction. The Edinburgh Session of 1969 adopted by a majority
of 60 to 1, with 2 abstentions, the resolution'** prohibiting weapons
affecting indiscriminately both military and non-military objects, both
armed forces and civilian populations, and weapons designed to terrorize
the civilian population. Ago himself was a member of that majority.

The second submission calling for attention is the suggestion that Secu-
rity Council resolution 984 (1995) (United Kingdom Written Statement,
para. 3.42 and Annex D) in some way endorses the view that the use of
nuclear weapons, in response to an armed attack, should not be regarded
as necessarily unlawful.

A careful perusal of the resolution shows that it reassures the non-
nuclear-weapon States that the Security Council and the nuclear-weapon
States will act immediately in the event that such States are victims of
nuclear aggression. It avoids any mention whatsoever of the measures to
be adopted to protect the victim. Had such been the intention, and had
such use of nuclear weapons been legal, this was the occasion par excel-
lence for the Security Council to have said so.

For the sake of completeness, it should here be pointed out that, even
if the Security Council had expressly endorsed the use of such weapons, it
is this Court which is the ultimate authority on questions of legality, and
that such an observation, even if made, would not prevent the Court
from making its independent pronouncement on this matter.

The third factor calling for mention is that much of the argument of
those opposing illegality seems to blur the distinction between the jus ad
bellum and the jus in bello. Whatever be the merits or otherwise of resort-
ing to the use of force (the province of the jus ad bellum), when once the
domain of force is entered, the governing law in that domain is the jus in
bello. The humanitarian laws of war take over and govern all who par-
ticipate, assailant and victim alike. The argument before the Court has
proceeded as though, once the self-defence exception to the prohibition
of the use of force comes into operation, the applicability of the jus in
bello falls away. This supposition is juristically wrong and logically un-
tenable. The reality is, of course, that while the jus ad bellum only opens
the door to the use of force (in self-defence or by the Security Council),
whoever enters that door must function subject to the jus in bello. The
contention that the legality of the use of force justifies a breach of
humanitarian law is thus a total non-sequitur.

154 Already noted in Section III.11 above.

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Upon a review therefore, no exception can be made to the illegality of
the use of nuclear weapons merely because the weapons are used in self-
defence.

Collective self-defence, where another country has been attacked, raises
the same issues as are discussed above.

Anticipatory self-defence — the pre-emptive strike before the enemy
has actually attacked — cannot legally be effected by a nuclear strike, for
a first strike with nuclear weapons would axiomatically be prohibited by
the basic principles already referred to. In the context of non-nuclear
weaponry, all the sophistication of modern technology and the precise
targeting systems now developed would presumably be available for this
purpose.

V. SOME GENERAL CONSIDERATIONS

1. Two Philosophical Perspectives

This opinion has set out a multitude of reasons for the conclusion that
the resort to nuclear weapons for any purpose entails the risk of the
destruction of human society, if not of humanity itself. It has also
pointed out that any rule permitting such use is inconsistent with inter-
national law itself. |

Two philosophical insights will be referred to in this section — one
based on rationality, and the other on fairness.

In relation to the first, all the postulates of law presuppose that they
contribute to and function within the premise of the continued existence
of the community served by that law. Without.the assumption of that
continued existence, no rule of law and no legal system can have any
claim to validity, however attractive the juristic reasoning on which it is
based. That taint of invalidity affects not merely the particular rule. The
legal system, which accommodates that rule, itself collapses upon its
foundations, for legal systems are postulated upon the continued exis-
tence of society. Being part of society, they must themselves collapse with
the greater entity of which they are a part. This assumption, lying at the
very heart of the concept of law, often recedes from view in the midst of
the nuclear discussion.

Without delving in any depth into philosophical discussions of the
nature of law, it will suffice for present purposes to refer briefly to two
tests proposed by two pre-eminent thinkers about justice of the present
era — H. L. A. Hart and John Rawls.

Hart, a leading jurist of the positivistic school, has, in a celebrated
exposition of the minimum content of natural law, formulated this prin-
ciple pithily in the following sentence:

“We are committed to it as something presupposed by the terms

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of the discussion; for our concern is with social arrangements for
continued existence, not with those of a suicide club.” 15

His reasoning is that:

“there are certain rules of conduct which any social organization
must contain if it is to be viable. Such rules do in fact constitute
a common element in the law and conventional morality of all
societies which have progressed to the point where these are distin-
guished as different forms of social control.” 156

International law is surely such a social form of control devised and
accepted by the constituent members of that international society — the
nation States.

Hart goes on to note that:

“Such universally recognized principles of conduct which have a
basis in elementary truths concerning human beings, their natural
environment, and aims, may be considered the minimum content of
Natural Law, in contrast with the more grandiose and more chal-
lengeable constructions which have often been proffered under that
name.” 157

Here is a recognized minimum accepted by positivistic jurisprudence
which questions some of the more literal assumptions of other schools.
We are down to the common denominator to which all legal systems
must conform.

To approach the matter from another standpoint, the members of the
international community have for the past three centuries been engaged
in the task of formulating a set of rules and principles for the conduct of
that society — the rules and principles we call international law. In so
doing, they must ask themselves whether there is a place in that set of
rules for a rule under which it would be legal, for whatever reason, to
eliminate members of that community or, indeed, the entire community
itself. Can the mternational community, which is governed by that rule,
be considered to have given its acceptance to that rule, whatever be the
approach of that community — positivist, natural law, or any other? Is
the community of nations, to use Hart’s expression a “suicide club”?

This aspect has likewise been stressed by perceptive jurists from the
non-nuclear countries who are alive to the possibilities facing their coun-
tries in conflicts between other States in which, though they are not
parties, they can be at the receiving end of the resulting nuclear devasta-
tion. Can international law, which purports to be a legal system for the

55 H. L. A. Hart, The Concept of Law, 1961, p. 188; emphasis added.
156 Ibid.
157 Ibid., p. 189; emphasis added.

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entire global community, accommodate any principles which make pos-
sible the destruction of their communities?

“No legal system can confer on any of its members the right to
annihilate the community which engenders it and whose activities it
seeks to regulate. In other words, there cannot be a legal rule, which
permits the threat or use of nuclear weapons. In sum, nuclear
weapons are an unprecedented event which calls for rethinking the
self-understanding of traditional international law. Such rethinking
would reveal that the question is not whether one interpretation of
existing laws of war prohibits the threat or use of nuclear weapons
and another permits it. Rather, the issue is whether the debate can
take place at all in the world of law. The question is in fact one
which cannot be legitimately addressed by law at all since it cannot
tolerate an interpretation which negates its very essence. The end of
law is a rational order of things, with survival as its core, whereas
nuclear weapons eliminate all hopes of realising it. In this sense,
nuclear weapons are unlawful by definition.” !°°

The aspect stressed by Hart that the proper end of human activity
is survival is reflected also in the words of Nagendra Singh, a former
President of this Court, who stated, in his pioneering study of nuclear
weapons, that:

“Tt would indeed be arrogant for any single nation to argue that to
save humanity from bondage it was thought necessary to destroy
humanity itself . . . No nation acting on its own has a right to
destroy its kind, or even to destroy thousands of miles of land and
its inhabitants in the vain hope that a crippled and suffering human-
ity — a certain result of nuclear warfare — was a more laudable
objective than the loss of human dignity — an uncertain result which
may or may not follow from the non-use of nuclear weapons.” °°

Nagendra Singh expressed the view, in the same work, that “resort to
such weapons is not only incompatible with the laws of war, but irrecon-
cilable with international law itself” 160,

Another philosophical approach to the matter is along the lines of the
“veil of ignorance” posited by John Rawls in his celebrated study of jus-
tice as fairness 1.

If one is to devise a legal system under which one is prepared to live,
this exposition posits as a test of fairness of that system that its members

158 B. S. Chimni, “Nuclear Weapons and International Law: Some Reflections”, in
International Law in Transition: Essays in Memory of Judge Nagendra Singh, 1992,
p. 142; emphasis added.

159 Nagendra Singh, Nuclear Weapons and International Law, 1959, pp. 242-243.

160 Ibid, p. 17.

161 John Rawls, 4 Theory of Justice, 1972.

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would be prepared to accept it if the decision had to be taken behind a
veil of ignorance as to the future place of each constituent member within
that legal system.

A nation considering its allegiance to such a system of international
law, and not knowing whether it would fall within the group of nuclear
nations or not, could scarcely be expected to subscribe to it if it contained
a tule by which legality would be accorded to the use of a weapon by
others which could annihilate it. Even less would it consent if it is denied
even the right to possess such a weapon and, least of all if it could be
annihilated or irreparably damaged in the quarrels of others to which it is
not in any way a party.

One would indeed be in a desirable position in the event that it was
one’s lot to become a member of the nuclear group but, if there was a
chance of being cast into the non-nuclear group, would one accept such a
legal system behind a veil of ignorance as to one’s position? Would it
make any difference if the members of the nuclear group gave an assur-
ance, which no one could police, that they would use the weapon only in
extreme emergencies? The answers to such questions cannot be in doubt.
By this test of fairness and legitimacy, such a legal system would surely
fail.

Such philosophical insights are of cardinal value in deciding upon the
question whether the illegality of use would constitute a minimum com-
ponent of a system of international law based on rationality or fairness.
By either test, widely accepted in the literature of modern jurisprudence,
the rule of international law applicable to nuclear weapons would be that
their use would be impermissible.

Fundamental considerations such as these tend to be overlooked in
discussions relating to the legality of nuclear weapons. On matter so
intrinsic to the validity of the entire system of international law, such per-
spectives cannot be ignored.

2. The Aims of War

War is never an end in itself. It is only a means to an end. This was
recognized in the St. Petersburg Declaration of 1868, already noted (in
Section III.3 on humanitarian law), which stipulated that the weakening
of the military forces of the enemy was the only legitimate object of war.
Consistently with this principle, humanitarian law has worked out the
rule, already referred to, that “The right of belligerents to adopt means of
injuring the enemy is not unlimited” (Article 22 of the Hague Rules,
1907).

All study of the laws of war becomes meaningless unless it is anchored
to the ends of war, for thus alone can the limitations of war be seen in
their proper context. This necessitates a brief excursus into the philo-
sophy of the aims of war. Literature upon the subject has existed for
upwards of twenty centuries.

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Reference has already been made, in the context of hyperdestructive
weapons, to the classical Indian tradition reflected in India’s greatest
epics, the Ramayana and the Mahabharatha. The reason behind the pro-
hibition was that the weapon went beyond the purposes of war.

This was precisely what Aristotle taught when, in Book VII of Politics,
he wrote that, “War must be looked upon simply as a means to peace.” 62
It will be remembered that Aristotle was drawing a distinction between
actions that are no more than necessary or useful, and actions which are
good in themselves. Peace was good in itself, and war only a means to
this end. Without the desired end, namely peace, war would therefore be
meaningless and useless. Applying this to the nuclear scenario, a war
which destroys the other party is totally lacking in meaning and utility,
and hence totally lacks justification. Aristotle’s view of war was that it is
a temporary interruption of normalcy, with a new equilibrium resulting
from it when that war inevitably comes to an end.

The philosophy of the balance of power which dominated European
diplomacy since the Peace of Utrecht in 1713 presupposed not the elimi-
nation of one’s adversary, but the achievement of a workable balance of
power in which the vanquished had a distinct place. Even the extreme
philosophy that war is a continuation of the processes of diplomacy,
which Clausewitz espoused, presupposed the continuing existence, as a
viable unit, of the vanquished nation.

The United Nations Charter itself is framed on the basic principle that
the use of force is outlawed (except for the strictly limited exception of
self-defence), and that the purpose of the Charter is to free humanity
from the scourge of war. Peace between the parties is the outcome the
Charter envisages and not the total devastation of any party to the con-
flict.

Nuclear weapons render these philosophies unworkable. The nuclear
exchanges of the future, should they ever take place, will occur in a world
in which there is no monopoly of nuclear weapons. A nuclear war will
not end with the use of a nuclear weapon by a single power, as happened
in the case of Japan. There will inevitably be a nuclear exchange, espe-
cially in a world in which nuclear weapons are triggered for instant and
automatic reprisal in the event of a nuclear attack.

Such a war is not one in which a nation, as we know it, can survive as
a viable entity. The spirit that walks the nuclear wasteland will be a spirit
of total despair, haunting victors (if there are any) and vanquished alike.
We have a case here of methodology of warfare which goes beyond the
purposes of war.

162 Aristotle, Politics, trans. John Warrington, Heron Books, 1934, p. 212.

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3. The Concept of a “Threat of Force” under the
United Nations Charter

The question asked by the General Assembly relates to the use of force
and the threat of force. Theoretically, the use of force, even with the sim-
plest weapon, is unlawful under the United Nations Charter. There is no
purpose therefore in examining whether the use of force with a nuclear
weapon is contrary to international law. When even the use of a single
rifle is banned, it makes little sense to enquire whether a nuclear weapon
is banned.

The question of a threat of force, within the meaning of the Charter,
needs some attention. To determine this question, an examination of the
concept of threat of force in the Charter becomes necessary.

Article 2 (4) of the United Nations Charter outlaws threats against the
territorial integrity or political independence of any State. As reaffirmed
in the Declaration on Principles of International Law Concerning
Friendly Relations 1970:

“Such a threat or use of force constitutes a violation of interna-
tional law and the Charter of the United Nations and shall never be
employed as a means of settling international issues.” (General
Assembly resolution 2625 (XXV).)

Other documents confirming the international community’s understand-
ing that threats are outside the pale of international law include the 1965
Declaration on the Inadmissibility of Intervention in the Domestic Affairs
of States and the Protection of Their Independence and Sovereignty
(General Assembly resolution 2131 (XX)), and the 1987 Declaration
on the Enhancement of the Principle of Non-Use of Force (General
Assembly resolution 42/22, para. 2).

It is to be observed that the United Nations Charter draws no distinc-
tion between the use of force and the threat of force. Both equally lie
outside the pale of action within the law.

Numerous international documents confirm the prohibition on the
threat of force without qualification. Among these are the 1949 Declara-
tion on Essentials of Peace (General Assembly resolution 290 (IV)); the
1970 Declaration on the Strengthening of International Security (General
Assembly resolution 2734 (XXV)); and the 1988 Declaration on the Pre-
vention and Removal of Disputes and Situations Which May Threaten
International Peace and Security and on the Role of the United Nations
in This Field (General Assembly resolution 43/51). The Helsinki Final
Act (1975) requires participating States to refrain from the threat or use
of force. The Pact of Bogota (the American Treaty on Pacific Settlement)
is even more specific, requiring the contracting parties to “refrain from
the threat or the use of force, or from any other means of coercion for the
settlement of their controversies . . .”.

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The principle of non-use of threats is thus as firmly grounded as the
principle of non-use of force and, in its many formulations, it has not
been made subject to any exceptions. If therefore deterrence is a form of
threat, it must come within the prohibitions of the use of threats.

A more detailed discussion follows in Section VII.2 of the concept of
deterrence.

4. Equality in the Texture of the Laws of War

There are some structural inequalities built into the current interna-
tional legal system, but the substance of international law — its corpus of
norms and principles — applies equally to all. Such equality of all those
who are subject to a legal system is central to its integrity and legitimacy.
So it is with the body of principles constituting the corpus of interna-
tional law. Least of all can there be one law for the powerful and another
law for the rest. No domestic system would accept such a principle, nor
can any international system which is premised on a concept of equality.

In the celebrated words of the United States Chief Justice John Mar-
shall in 1825,

“No principle of general law is more universally acknowledged
than the perfect equality of nations. Russia and Geneva have equal
rights.” 16

As with all sections of the international legal system, the concept of
equality is built into the texture of the laws of war.

Another anomaly is that if, under customary international law, the use
of the weapon is legal, this is inconsistent with the denial, to 180 of the
185 Members of the United Nations, of even the right to possession of
this weapon. Customary international law cannot operate so unequally,
especially if, as is contended by the nuclear powers, the use of the weapon
is essential to their self-defence. Self-defence is one of the most treasured
rights of States and is recognized by Article 51 of the United Nations
Charter as the inherent right of every Member State of the United
Nations. It is a wholly unacceptable proposition that this right is granted
in different degrees to different Members of the United Nations family of
nations.

163 The Antelope case, [1825] 10 Wheaton, p. 122. Cf. Vattel, “A dwarf is as much a
man as a giant is; a small republic is no less a sovereign state than the most powerful
Kingdom.” (Droit des gens, Fenwick trans. in Classics of International Law, 8. 18.)

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De facto inequalities always exist and will continue to exist so long as
the world community is made up of sovereign States, which are necessar-
ily unequal in size, strength, wealth and influence. But a great conceptual
leap is involved in translating de facto inequality into inequality de jure.
It is precisely such a leap that is made by those arguing, for example, that
when the Protocols to the Geneva Conventions did not pronounce on the
prohibition of the use of nuclear weapons, there was an implicit recogni-
tion of the legality of their use by the nuclear powers. Such silence meant
an agreement not to deal with the question, not a consent to legality of
use. The “understandings” stipulated by the United States and the United
Kingdom that the rules established or newly introduced by the 1977
Additional Protocol to the four 1949 Geneva Conventions would not
regulate or prohibit the use of nuclear weapons do not undermine the
basic principles which antedated these formal agreements and received
expression in them. They rest upon no conceptual or juristic reason that
can make inroads upon those principles. It is conceptually impossible to
treat the silence of these treaty provisions as overruling or overriding
these principles.

Similar considerations apply to the argument that treaties imposing
partial bans on nuclear weapons must be interpreted as a current accep-
tance, by implication, of their legality.

This argument is not well founded. Making working arrangements
within the context of a situation one is powerless to avoid is neither a
consent to that situation, nor a recognition of its legality. It cannot con-
fer upon that situation a status of recognition of its validity. Malaysia
offered in this context the analogy of needle exchange programmes to
minimize the spread of disease among drug users. Such programmes can-
not be interpreted as rendering drug abuse legal (Written Comments,
p. 14). What is important is that, amidst the plethora of resolutions and
declarations dealing with nuclear weapons, there is not one which sanc-
tions the use of such weapons for any purpose whatsoever.

A legal rule would be inconceivable that some nations alone have the
right to use chemical or bacteriological weapons in self-defence, and others
do not. The principle involved, in the claim of some nations to be able to
use nuclear weapons in self-defence, rests on no different juristic basis.

Another feature to be considered in this context is that the community
of nations is by very definition a voluntarist community. No element in it
imposes constraints upon any other element from above. Such a structure
is altogether impossible except on the basic premise of equality. Else “the

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danger is very real that the law will become little more than the expres-
sion of the will of the strongest” 164,

If the corpus of international law is to retain the authority it needs to
discharge its manifold and beneficent functions in the international com-
munity, every element in its composition should be capable of being
tested at the anvil of equality. Some structural inequalities have indeed
been built into the international constitutional system, but that is a very
different proposition from introducing inequalities into the corpus of
substantive law by which all nations alike are governed.

It scarcely needs mention that whatever is stated in this section is
stated in the context of the total illegality of the use of nuclear weapons
by any powers whatsoever, in any circumstances whatsoever. That is the
only sense in which the principle of equality which underlies international
law can be applied to the important international problem of nuclear
weapons.

5. The Logical Contradiction of a Dual Régime
in the Laws of War

If humanitarian law is inapplicable to nuclear weapons, we face the
logical contradiction that the laws of war are applicable to some kinds of
weapons and not others, while both sets of weapons can be simultan-
eously used. One set of principles would apply to all other weapons and
another set to nuclear weapons. When both classes of weapons are used
in the same war, the laws of armed conflict would be in confusion and
disarray.

Japan is a nation against which both sets of weapons were used, and it
is not a matter for surprise that this aspect seems first to have caught the
attention of Japanese scholars. Professor Fajita, in an article to which we
were referred, observed:

“this separation of fields of regulation between conventional and
nuclear warfare will produce an odd result not easily imaginable,
because conventional weapons and nuclear weapons will be eventu-
ally used at the same time, and in the same circumstances in a future
armed conflict” 155,

Such a dual régime is inconsistent with all legal principle, and no
reasons of principle have ever been suggested for the exemption of
nuclear weapons from the usual régime of law applicable to all weapons.
The reasons that have been suggested are only reasons of politics or
of expediency, and neither a court of law nor any body of consistent
juristic science can accept such a dichotomy.

It is of interest to note in this context that even nations denying the

164 Weston, op. cit., p. 254.
165 Kansai University Review of Law and Political Science, 1982, Vol. 3, p. 77.

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illegality of nuclear weapons per se instruct their armed forces in their
military manuals that nuclear weapons are to be judged according to the
same standards that apply to other weapons in armed conflict !5.

6. Nuclear Decision-Making

A factor to be taken into account in determining the legality of the use
of nuclear weapons, having regard to their enormous potential for global
devastation, is the process of decision-making in regard to the use of
nuclear weapons.

A decision to use nuclear weapons would tend to be taken, if taken at
all, in circumstances which do not admit of fine legal evaluations. It will
in all probability be taken at a time when passions run high, time is short
and the facts are unclear. It will not be a carefully measured decision,
taken after a detailed and detached evaluation of all relevant circum-
stances of fact. It would be taken under extreme pressure and stress.
Legai matters requiring considered evaluation may have to be determined
within minutes, perhaps even by military rather than legally trained per-
sonnel, when they are in fact so complex as to have engaged this Court’s
attention for months. The fate of humanity cannot fairly be made to
depend on such a decision.

Studies have indeed been made of the process of nuclear decision-
making and they identify four characteristics of a nuclear crisis '®’. These
characteristics are:

(1) the shortage of time for making crucial decisions. This is the funda-
mental aspect of all crises;

(2) the high stakes involved and, in particular, the expectation of severe
loss to the national interest;

(3) the high uncertainty resulting from the inadequacy of clear informa-
tion, for example, what is going on?, what is the imtent of the
enemy?; and

(4) the leaders are often constrained by political considerations, restrict-
ing their options.

If such is the atmosphere in which leaders are constrained to act, and if
they must weigh the difficult question whether it is legal or not in the
absence of guidelines, the risk of illegality in the use of the weapon is
great.

166 See Burns H. Weston, op. cit., p. 252, footnote 105.

167 See Conn Nugent, “How a Nuclear War Might Begin”, in Proceedings of the Sixth
World Congress of the International Physicians for the Prevention of Nuclear War,
op. cit., p. 117.

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The weapon should in my view be declared illegal in all circumstances.
If it is legal in some circumstances, however improbable, those circum-
stances need to be specified (or else a confused situation is made more
confused still).

VI. THE ATTITUDE OF THE INTERNATIONAL COMMUNITY
TOWARDS NUCLEAR WEAPONS

Quite apart from the importance of such considerations as the con-
science of humanity and the general principles of law recognized by civi-
lized nations, this section becomes relevant also because the law of the
United Nations proceeds from the will of the peoples of the United
Nations; and ever since the commencement of the United Nations, there
has not been an issue which has attracted such sustained and widespread
attention from its community of members. Apartheid was one of the
great international issues which attracted concentrated attention until
recently, but there has probably been a deeper current of continuous con-
cern with nuclear weapons, and a universally shared revulsion at their
possible consequences. The floodtide of global disapproval attending the
nuclear weapon has never receded and no doubt will remain unabated so
long as those weapons remain in the world’s arsenals.

1. The Universality of the Ultimate Goal
of Complete Elimination

The international community’s attitude towards nuclear weapons has
been unequivocal — they are a danger to civilization and must be elimi-
nated. The need for their complete elimination has been the subject of
several categorical resolutions of the General Assembly, which are
referred to elsewhere in this opinion.

The most recent declaration of the international community on this
matter was at the 1995 Non-Proliferation Treaty Review Conference
which, in its “Principles and Objectives for Nuclear Non-Proliferation
and Disarmament”, stressed “the ultimate goals of the complete elimina-
tion of nuclear weapons and a treaty on general and complete disarma-
ment”. This was a unanimous sentiment expressed by the global commu-
nity and a clear commitment by every nation to do ail that it could to
achieve the complete elimination of these weapons.

The NPT, far from legitimizing the possession of nuclear weapons, was
a treaty for their liquidation and eventual elimination. Its preamble un-
equivocally called for the liquidation of all existing stockpiles and their
elimination from national arsenals. Such continued possession as it envis-

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aged was not absolute but subject to an overriding condition — the pur-
suit in good faith of negotiations on effective measures relating to the
cessation of the nuclear arms race at an early date. Inherent in this condi-
tion and in the entire treaty was not the acceptance of nuclear weapons,
but their condemnation and repudiation. So it was when the NPT entered
into force on 5 March 1970 and so it was when the NPT Review and
Extension Conference took place in 1995168.

The NPT Review Conference of 1995 was not new in the universality it
embodied or in the strength of the commitment it expressed, but merely
a reiteration of the views expressed in the very first resolution of the
United Nations in 1945. From the formation of the United Nations to
the present day, it would thus be correct to say that there has been a uni-
versal commitment to the elimination of nuclear weapons — a commit-
ment which was only a natural consequence of the universal abhorrence
of these weapons and their devastating consequences.

2. Overwhelming Majorities
in Support of Total Abolition

This view, which cannot be more clearly expressed than it has been in
numerous pronouncements of the General Assembly, provides a back-
drop to the consideration of the applicable law, which follows.

It is beyond dispute that the preponderant majority of States oppose
nuclear weapons and seek their total abandonment.

The very first resolution of the General Assembly, adopted at its Seven-
teenth Plenary Meeting on 24 January 1946, appointed a Commission
whose terms of reference were, inter alia, to make specific proposals “for
the elimination from national armaments of atomic weapons and of all
other major weapons adaptable to mass destruction”.

In 1961, at Belgrade, the Non-aligned Heads of State made a clear pro-
nouncement on the need for a global agreement prohibiting all nuclear
tests. The non-aligned movement, covering 113 countries from Asia,

168 Article 4 of Decision No. 2 on the Principles and Objectives for Nuclear Non-Pro-
liferation and Disarmament, adopted by that Conference, stipulated as an obligation of
States parties, which was inextricably linked to the extension of the treaty, the following
goal, inter alia: . :

“The determined pursuit by the nuclear-weapon States of systematic and progres-
sive efforts to reduce nuclear weapons globally, with the ultimate goals of eliminating
those weapons.” (Para. 4 (c).)

Also the Conference on Disarmament was to complete the negotiations for a Compre-
hensive Nuclear-Test-Ban Treaty no later than 1996 (para. 4 (a)).

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Africa, Latin America and Europe, comprises within its territories not
only the vast bulk of the world’s population, but also the bulk of the
planet’s natural resources and the bulk of its bio-diversity. It has pursued
the aim of the abolition of nuclear weapons and consistently supported a
stream of resolutions!® in the General Assembly and other international
forums pursuing this objective. The massive majorities of States calling
for the Non-Use of Nuclear Weapons can leave little doubt of the overall
sentiment of the world community in this regard.

States appearing before the Court have provided the Court with a list
of United Nations resolutions and declarations indicating the attitude
towards these weapons of the overwhelming majority of that member-
ship. Several of those resolutions do not merely describe the use of
nuclear weapons as a violation of international law, but also assert that
they are a crime against humanity.

Among these latter are the resolutions on Non-Use of Nuclear Weap-
ons and Prevention of Nuclear War, passed by the General Assembly to
this effect in 1978, 1979, 1980 and 1981, were passed with 103, 112, 113
and 121 votes respectively in favour, with 18, 16, 19 and 19 respectively
opposing them, and 18, 14, 14 and 6 abstentions respectively. These can
fairly be described as massive majorities (see Appendix IV of Malaysian
Written Comments).

Resolutions setting the elimination of nuclear weapons as a goal are
legion. One State (Malaysia) has, in its Written Comments, listed no less
than 49 such resolutions, several of them passed with similar majorities
and some with no votes in opposition and only 3 or 4 abstentions. For
example, the resolutions on conclusion of effective international arrange-
ments to assure non-nuclear weapon States against the use or threat of
use of nuclear weapons of 1986 and 1987 were passed with 149 and 151
votes in favour, none opposed and 4 and 3 abstentions respectively. Such
resolutions, adopting a goal of complete elimination, are indicative of a
global sentiment that nuclear weapons are inimical to the general inter-
ests of the community of nations.

The declarations of the world community’s principal representative
organ, the General Assembly, may not themselves make law, but when
repeated in a stream of resolutions, as often and as definitely as they have
been, provide important reinforcement to the view of the impermissibility
of the threat or use of such weapons under customary international law.
Taken in combination with all the other manifestations of global
disapproval of threat or use, the confirmation of the position is streng-
thened even further. Whether or not some of the General Assembly reso-
lutions are themselves “law making” resolutions is a matter for serious

LS

169 See footnote 99, above.

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consideration, with not inconsiderable scholarly support for such a
view 170,

Although the prime thrust for these resolutions came from the non-
aligned group, there has been supportive opinion for the view of illegality
from States outside this group. Among such States contending for ille-
gality before this Court are Sweden, San Marino, Australia and New
Zealand. Moreover, even in countries not asserting the illegality of nuclear
weapons, opinion is strongly divided. For example, we were referred to a
resolution passed by the Italian Senate, on 13 July 1995, recommending
to the Italian Government that they assume a position favouring a judg-
ment by this Court condemning the use of nuclear weapons.

It is to be remembered also that, of the 185 Member States of the
United Nations, only five have nuclear weapons and have announced
policies based upon them. From the standpoint of the creation of inter-
national custom, the practice and policies of five States out of 185 seem
to be an insufficient basis on which to assert the creation of custom,
whatever be the global influence of those five. As was stated by Malaysia:

“If the laws of humanity and the dictates of the public conscience
demand the prohibition of such weapons, the five nuclear-weapon
States, however powerful, cannot stand against them.” (CR 95/27,

p. 56.)

In the face of such a preponderant majority of States’ opinions, it is
difficult to say there is no opinio juris against the use or threat of use of
nuclear weapons. Certainly it is impossible to contend that there is an
opinio juris in favour of the legality of such use or threat.

3. World Public Opinion

Added to all these official views, there is also a vast preponderance of
public opinion across the globe. Strong protests against nuclear weapons
have come from learned societies, professional groups, religious denomi-
nations, women’s organizations, political parties, student federations,
trade unions, NGOs and practically every group in which public opinion
is expressed. Hundreds of such groups exist across the world. The names
that follow are merely illustrative of the broad spread of such organiza-
tions: International Physicians for the Prevention of Nuclear War
(IPPNW); Medical Campaign Against Nuclear Weapons; Scientists
Against Nuclear Arms; People for Nuclear Disarmament; International
Association of Lawyers against Nuclear Arms (IALANA); Performers

170 For example, Brownlie, Principles of Public International Law, 4th ed., 1990, p. 14,
re resolution 1653 (XVD of 1961, which described the use of nuclear and thermonuclear
weapons as such a “law-making resolution”.

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and Artists for Nuclear Disarmament International; Social Scientists
Against Nuclear War; Society for a Nuclear Free Future; European Fed-
eration against Nuclear Arms; The Nuclear Age Peace Foundation;
Campaign for Nuclear Disarmament; Children’s Campaign for Nuclear
Disarmament. They come from all countries, cover all walks of life, and
straddie the globe.

The millions of signatures received in this Court have been referred to
at the very commencement of this opinion.

4. Current Prohibitions

A major area of space on the surface of the planet and the totality of
the space above that surface, and of the space below the ocean surface,
has been brought into the domain of legal prohibition of the very pres-
ence of nuclear weapons. Among treaties accomplishing this result are
. the 1959 Antarctic Treaty, the 1967 Treaty of Tlatelolco in respect of
Latin America and the Caribbean, the 1985 Treaty of Rarotonga in
regard to the South Pacific, and the 1996 Treaty of Cairo in regard to
Africa. In addition, there is the Treaty prohibiting nuclear weapons in the
atmosphere and outer space, and the 1971 Treaty on the Prohibition of
the Emplacement of Nuclear Weapons and Other Weapons of Mass
Destruction on the Seabed and the Ocean Floor and in the Subsoil
Thereof (see CR 95/22, p. 50). The major portion of the total area of the
space afforded for human activity by the planet is thus declared free of
nuclear weapons — a result which would not have been achieved but for
universal agreement on the uncontrollable danger of these weapons and
the need to eliminate them totally.

5. Partial Bans

The notion of partial bans and reductions in the levels of nuclear arms
could not, likewise, have achieved their current results but for the exist-
ence of such a globally shared sentiment. Important among these meas-
ures are the Partial Test Ban Treaty of 1963 prohibiting the testing of
nuclear weapons in the atmosphere, and the Nuclear Non-Proliferation
Treaty of 1968. These treaties not only prohibited even the testing of
nuclear weapons in certain circumstances, but also provided against the
horizontal proliferation of nuclear weapons by imposing certain legal
duties upon both nuclear and non-nuclear States. The Comprehensive
Test Ban Treaty, now in the course of negotiation, aims at the elimina-

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tion of all testing. The START agreements (START I and START II)
aim at considerable reductions in the nuclear arsenals of the United
States and the Russian Federation reducing their individual stockpiles by
around 2,000 weapons annually.

6. Who Are the States Most Specially Concerned?

If the nuclear States are the States most affected, their contrary view is
an important factor to be taken into account, even though numerically
they constitute a small proportion (around 2.7 per cent) of the United
Nations membership of 185 States.

This aspect of their being the States most particularly affected has been
stressed by the nuclear powers.

One should not however rush to the assumption that in regard to
nuclear weapons the nuclear States are necessarily the States most con-
cerned. The nuclear States possess the weapons, but it would be unreal-
istic to omit a consideration of those who would be affected once nuclear
weapons are used. They would also be among the States most concerned,
for their territories and populations would be exposed to the risk of harm
from nuclear weapons no less than those of the nuclear powers, if ever
nuclear weapons were used. This point was indeed made by Egypt in its
presentation (CR 95/23, p. 40).

For probing the validity of the proposition that the nuclear States are
the States most particularly affected, it would be useful to take the case
of nuclear testing. Suppose a metropolitan power were to conduct a
nuclear test in a distant colony, but with controls so unsatisfactory that
there was admittedly a leakage of radioactive material. If the countries
affected were to protest, on the basis of the illegality of such testing, it
would be strange indeed if the metropolitan power attempted to argue
that because it was the owner of the weapon, it was the State most
affected. Manifestly, the States at the receiving end were those most
affected. The position can scarcely be different in actual warfare, seeing
that the radiation from a weapon exploding above ground cannot be con-
tained within the target State. It would be quite legitimate for the neigh-
bouring States to argue that they, rather than the owner of the bomb, are
the States most affected.

This contention would stand, quite independently of the protests of the
State upon whose territory the weapon is actually exploded. The rele-
vance of this latter point is manifest when one considers that of the dozens
of wars that have occurred since 1945, scarcely any have been fought on
the soil of any of the nuclear powers. This is a relevant circumstance to
be considered when the question of States most concerned is examined.

A balanced view of the matter is that no one group of nations —
nuclear or non-nuclear — can say that its interests are most specially

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affected. Every nation in the world is spectally affected by nuclear
weapons, for when matters of survival are involved, this is a matter of
universal concern.

7. Have States, by Participating in Regional Treaties, Recognized
Nuclear Weapons as Lawful?

The United States, the United Kingdom and France have in their writ-
ten statements taken up the position that by signing a regional treaty
such as the Treaty of Tlatelolco prohibiting the use of nuclear weapons in
Latin America and the Caribbean, the signatories indicated by implica-
tion that there is no general prohibition on the use of nuclear weapons.

The signatories to such treaties are attempting to establish and
strengthen a non-proliferation régime in their regions, not because they
themselves do not accept the general illegality of nuclear weapons, but
because the pro-nuclear States do not.

The position of the regional States is made quite clear by the stance
they have adopted in the numerous General Assembly resolutions wherein
several of them, for example, Costa Rica, have voted on the basis that the
use of nuclear weapons is a crime against humanity, a violation of the
United Nations Charter and/or a violation of international law.

Indeed, the language of the Treaty itself gives a clear indication of the
attitude of its subscribing parties to the weapon, for it describes it as con-
stituting “an attack on the integrity of the human species”, and states
that it “ultimately may even render the whole earth uninhabitable”.

VII. SOME SPECIAL ASPECTS

1. The Non-Proliferation Treaty

An argument has been made that the NPT, by implication, recognizes
the legality of nuclear weapons, for all participating States accept without
objection the possession of nuclear weapons by the nuclear powers. This
argument raises numerous questions, among which are the following:

(i) As already observed, the NPT has no bearing on the question of use
or threat of use of nuclear weapons. Nowhere is the power given to
use weapons, or to threaten their use.

(ii) The Treaty was dealing with what may be described as a “winding-
down situation”. The reality was being faced by the world commu-
nity that a vast number of nuclear weapons were in existence and
that they might proliferate. The immediate object of the world com-
munity was to wind down this stockpile of weapons.

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As was stressed to the Court by some States in their submissions,
the Treaty was worked out against the background of the reality
that, whether or not the world community approved of this situa-
tion, there were a small number of nuclear States and a vast number
of non-nuclear States. The realities were that the nuclear States
would not give up their weapons, that proliferation was a grave
danger and that everything possible should be done to prevent pro-
liferation, recognizing at the same time the common ultimate goal
of the elimination of nuclear weapons.

(iii) As already observed, an acceptance of the inevitability of a situation
is not a consent to that situation, for accepting the existence of an
undesirable situation one is powerless to prevent is very different to
consenting to that situation.

(iv) In this winding-down situation, there can be no hint that the right to
possess meant also the right of use or threat of use. If there was a
right of possession, it was a temporary and qualified right until such
time as the stockpile could be wound down.

(v) The preamble to the Treaty makes it patently clear that its object is:

“the cessation of the manufacture of nuclear weapons, the liqui-

dation of all existing . . . stockpiles, and the elimination from
national arsenals of nuclear weapons and the means of their
delivery”.

That Preamble, which, it should be noted, represents the unanimous
view of all parties, nuclear as well as non-nuclear, describes the use
of nuclear weapons in war as a “the devastation that would be
visited upon all mankind”.

These are clear indications that, far from acknowledging the
legitimacy of nuclear weapons, the Treaty was in fact a concentrated
attempt by the world community to whittle down such possessions
as there already were, with a view to their complete elimination.
Such a unanimous recognition of and concerted action towards the
elimination of a weapon is quite inconsistent with a belief on the
part of the world community of the legitimacy of the continued pres-
ence of the weapon in the arsenals of the nuclear powers.

(vi) Even if possession be legitimized by the Treaty, that legitimation is
temporary and goes no further than possession. The scope and the
language of the Treaty make it plain that it was a temporary state of
possession simpliciter and nothing more to which they, the signato-
ries, gave their assent — an assent given in exchange for the promise
that the nuclear powers would make their utmost efforts to elimi-
nate those weapons which al! signatories considered so objection-

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able that they must be eliminated. There was here no recognition of
a right, but only of a fact. The legality of that fact was not conceded,
for else there was no need to demand a quid pro quo for it — the
bona fide attempt by all nuclear powers to make every effort to
eliminate these weapons, whose objectionability was the basic
premise on which the entire Treaty proceeded.

2. Deterrence

Deterrence has been touched upon in this opinion in the context of the
NPT. Yet, other aspects also merit attention, as deterrence bears upon
the threat of use, which is one of the matters on which the Court’s
opinion is sought.

(i) Meaning of deterrence

Deterrence means in essence that the party resorting to deterrence is
intimating to the rest of the world that it means to use nuclear power
against any State in the event of the first State being attacked. The con-
cept calls for some further examination.

(ii) Deterrence — from what?

Deterrence as used in the context of nuclear weapons is deterrence
from an act of war — not deterrence from actions which one opposes”,

One of the dangers of the possession of nuclear weapons for purposes
of deterrence is the blurring of this distinction and the use of the power
the nuclear weapon gives for purposes of deterring unwelcome actions on
the part of another State. The argument of course applies to all kinds of
armaments, but a fortiori to nuclear weapons. As Polanyi observes, the
aspect of deterrence that is most feared is the temptation to extend it
beyond the restricted aim of deterring war to deterring unwelcome
actions ‘7,

It has been suggested, for example, that deterrence can be used for the
protection of a nation’s “vital interests”. What are vital interests, and
who defines them? Could they be merely commercial interests? Could
they be commercial interests situated in another country, or a different
area of the globe?

Another phrase used in this context is the defence of “strategic inter-
ests”. Some submissions adverted to the so-called “sub-strategic deter-
rence”, effected through the use of a low-yield “warning shot” when a
nation’s vital interests are threatened (see, for example, Malaysia’s sub-

171 John Polanyi, Lawyers and the Nuclear Debate, op. cit., p. 19.
172 Ibid,

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mission in CR 95/27, p. 53). This opinion will not deal with such types of
deterrence, but rather with deterrence in the sense of self-defence against
an act of war.

(iii) The degrees of deterrence

Deterrence can be of various degrees, ranging from the concept
of maximum deterrence, to what is described as a minimum or near-
minimum deterrent strategy!73. Minimum nuclear deterrence has been
described as:

“nuclear strategy in which a nation (or nations) maintains the mini-
mum number of nuclear weapons necessary to inflict unacceptable
damage on its adversary even after it has suffered a nuclear
attack” 174,

The deterrence principle rests on the threat of massive retaliation, and as
Professor Brownlie has observed:

“If put into practice this principle would lead to a lack of propor-
tion between the actual threat and the reaction to it. Such dispro-
portionate reaction does not constitute self-defence as permitted by
Article 51 of the United Nations Charter.” 17

In the words of the same author, “the prime object of deterrent nuclear
weapons is ruthless and unpleasant retaliation — they are instruments of
terror rather than weapons of war” 176,

Since the question posed is whether the use of nuclear weapons is
legitimate in any circumstances, minimum deterrence must be considered.

(iv) Minimum deterrence

One of the problems with deterrence, even of a minimal character, is
that actions perceived by one side as defensive can all too easily be per-
ceived by the other side as threatening. Such a situation is the classic
backdrop to the traditional arms race, whatever be the type of weapons
involved. With nuclear arms it triggers off a nuclear arms race, thus rais-
ing a variety of legal concerns. Even minimum deterrence thus leads to
counter-deterrence, and to an ever ascending spiral of nuclear armament
testing and tension. If, therefore, there are legal objections to deterrence,
those objections are not removed by that deterrence being minimal.

IR. C. Karp (ed.), Security Without Nuclear Weapons? Different Perspectives on
Non-Nuclear Security, 1992, p. 251.

174 Tbid., p. 250, citing Hollins, Powers and Sommer, The Conquest of War: Alternative
Strategies for Global Security, 1989, pp. 54-55.

175 “Some Legal Aspects of the Use of Nuclear Weapons”, op. cit., pp. 446-447.

176 Thid., p. 445.

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(v) The problem of credibility

Deterrence needs to carry the conviction to other parties that there is a
real intention to use those weapons in the event of an attack by that other
party. A game of bluff does not convey that intention, for it is difficult to
persuade another of one’s intention unless one really has that intention.
Deterrence thus consists in a real intention'”’ to use such weapons. If
deterrence is to operate, it leaves the world of make-believe and enters
the field of seriously intended military threats.

Deterrence therefore raises the question not merely whether the threat
of use of such weapons is legal, but also whether use is legal. Since what
is necessary for deterrence is assured destruction of the enemy, deterrence
thus comes within the ambit of that which goes beyond the purposes of
war. Moreover, in the split second response to an armed attack, the finely
graded use of appropriate strategic nuclear missiles or “clean” weapons
which cause minimal damage does not seem a credible possibility.

(vi) Deterrence distinguished from possession

The concept of deterrence goes a step further than mere possession.
Deterrence is more than the mere accumulation of weapons in a store-
house. It means the possession of weapons in a state of readiness for
actual use. This means the linkage of weapons ready for immediate take-
off, with a command and control system geared for immediate action. It
means that weapons are attached to delivery vehicles. It means that per-
sonnel are ready night and day to render them operational at a moment’s
notice. There is clearly a vast difference between weapons stocked in a
warehouse and weapons so readied for immediate action. Mere posses-
sion and deterrence are thus concepts which are clearly distinguishable
from each other.

(vil) The legal problem of intention

For reasons already outlined, deterrence becomes not the storage of
weapons with intent to terrify, but a stockpiling with intent to use. If one
intends to use them, all the consequences arise which attach to intention
in law, whether domestic or international. One intends to cause the dam-
age or devastation that will result. The intention to cause damage or
devastation which results in total destruction of one’s enemy or which
might indeed wipe it out completely clearly goes beyond the purposes of

177 For further discussion of the concept of intention in this context, see Just War, Non-
violence and Nuclear Deterrence, D. L. Cady and R. Werner (eds.), 1991, pp. 193-205.

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war!78, Such intention provides the mental element implicit in the con-
cept of a threat.

However, a secretly harboured intention to commit a wrongful or
criminal act does not attract legal consequences, unless and until that
intention is followed through by corresponding conduct. Hence such a
secretly harboured intention may not be an offence. If, however, the
intention is announced, whether directly or by implication, it then
becomes the criminal act of threatening to commit the illegal act in ques-
tion.

Deterrence is by definition the very opposite of a secretly harboured
intention to use nuclear weapons. Deterrence is not deterrence if there is
no communication, whether by words or implication, of the serious
intention to use nuclear weapons. It is therefore nothing short of a threat
to use. If an act is wrongful, the threat to commit it and, more particu-
larly, a publicly announced threat, must also be wrongful.

(vill) The temptation to use the weapons maintained for deterrence

Another aspect of deterrence is the temptation to use the weapons
maintained for this purpose. The Court has been referred to numerous
instances of the possible use of nuclear weapons of which the Cuban Mis-
sile Crisis is probably the best known. A study based on Pentagon docu-
ments, to which we were referred, lists numerous such instances involving
the possibility of nuclear use from 1946 to 1980 17°.

(ix) Deterrence and sovereign equality

This has already been dealt with. Either all nations have the right to
self-defence with any particular weapon or none of them can have it — if
the principle of equality in the right of self-defence is to be recognized.
The first alternative is clearly impossible and the second alternative must
then become, necessarily, the only option available.

The comparison already made with chemical or bacteriological
weapons highlights this anomaly, for the rules of international law must

178 For the philosophical implications of deterrence, considered from the point of view
of natural law, see Cady and Werner, op. cit., pp. 207-219. See, also, John Finnis, Joseph
Boyle and Germain Grisez, Nuclear Deterrence, Morality and Realism, 1987. Other
works which present substantially the same argument are Anthony Kenny, The Logic of
Deterrence, 1985, and The Ivory Tower, 1985; Roger Ruston, Nuclear Deterrence —
Right or Wrong ?, 1981, and “Nuclear Deterrence and the Use of the Just War Doctrine”,
in Blake and Pole (eds.), Objections to Nuclear Defense, 1984.

'79 Michio Kaku and Daniel Axelrod, To Win a Nuclear War, 1987, p. 5; CR 95/27,
p. 48.

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operate uniformly across the entire spectrum of the international com-
munity. No explanation has been offered as to why nuclear weapons
should be subject to a different régime.

(x) Conflict with the St. Petersburg principle

As already observed, the Declaration of St. Petersburg, followed and
endorsed by numerous other documents (see Section III.3 above) declared
that weakening the military forces of the enemy is the only legitimate
object which States should endeavour to accomplish during war (on this
aspect, see Section V.2 above). Deterrence doctrine aims at far more — it
aims at the destruction of major urban areas and centres of population
and even goes so far as “mutually assured destruction”. Especially during
the Cold War, missiles were, under this doctrine, kept at the ready, tar-
geting many of the major cities of the contending powers. Such policies
are a far cry from the principles solemnly accepted at St. Petersburg and
repeatedly endorsed by the world community.

3. Reprisals

The Court has not in its Opinion expressed a view in regard to the
acceptance of the principle of reprisals in the corpus of modern interna-
tional law. I regret that the Court did not avail itself of this opportunity
to confirm the unavailability of reprisals under international law at the
present time, whether in time of peace or in war.

I wish to make it clear that J do not accept the lawfulness of the right
to reprisals as a doctrine recognized by contemporary international
law.

Does the concept of reprisals open up a possible exception to the rule
that action in response to an attack is, like all other military action, sub-
ject to the laws of war?

The Declaration concerning Principles of Friendly Relations and Co-
operation among States (resolution 2625 (XXV) of 1970) categorically
asserted that “States have a duty to refrain from acts of reprisal involving
the use of force”.

Professor Bowett puts the proposition very strongly in the following
passage:

“Few propositions about international law have enjoyed more
support than the proposition that, under the Charter of the United
Nations, the use of force by way of reprisals is illegal. Although,
indeed, the words ‘reprisals’ and ‘retaliation’ are not to be found in
the Charter, this proposition was generally regarded by writers and
by the Security Council as the logical and necessary consequence of

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the prohibition of force in Article 2 (4), the injunction to settle dis-
putes peacefully in Article 2 (3) and the limiting of permissible force
by states to self-defense.” 18°

While this is an unexceptionable view, it is to be borne in mind,
further, that nuclear weapons raise special problems owing to the mag-
nitude of the destruction that is certain to accompany them. In any event,
a doctrine evolved for an altogether different scenario of warfare can
scarcely be applied to nuclear weapons without some re-examination.

Professor Brownlie addresses this aspect in the following terms:

“In the first place, it is hardly legitimate to extend a doctrine
related to the minutiae of the conventional theatre of war to an
exchange of power which, in the case of the strategic and deterrent
uses of nuclear weapons, is equivalent to the total of war effort and
is the essence of the war aims.” '8!

These strong legal objections to the existence of a right of reprisal are
reinforced also by two other factors — the conduct of the party indulging
in the reprisals and the conduct of the party against whom the reprisals
are directed.

The action of the party indulging in the reprisals needs to be a meas-
ured one, for its only legitimate object is as stated above. Whatever ten-
dency there may be to unleash all its nuclear power in anger or revenge
needs to be held strictly in check. It is useful to note in this connection
the observation of Oppenheim who, after reviewing a variety of historical
examples, concludes that:

“reprisals instead of being a means of securing legitimate warfare
may become an effective instrument of its wholesale and cynical vio-
lation in matters constituting the very basis of the law of war” !®?.

The historical examples referred to relate, inter alia, to the extreme
atrocities sought to be justified under the principle of retaliation in the
Franco-German War, the Boer War, World War I and World War II!®.
They all attest to the brutality, cynicism and lack of restraint in the use of
power which it is the object of the laws of war to prevent. Such shreds of

180 D. Bowett, “Reprisals Involving Recourse to Armed Force”, American Journal of
International Law, 1972, Vol. 66, p. 1, quoted in Weston, Falk and D’Amato, Interna-
tional Law and World Order, 1980, p. 910.

181 “Some Legal Aspects of the Use of Nuclear Weapons”, op. cit., p. 445.

182 Op. cit., Vol. IL, p. 565.

183 Jhbid, pp. 563-565.

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the right to retaliation as might have survived the development of the
laws of war are all rooted out by the nature of the nuclear weapon, as
discussed in this opinion.

If history is any guide, the party indulging in reprisals will in practice
use such “right of reprisal” — if indeed there is such a right — in total
disregard of the purpose and limits of retaliation — namely, the limited
purpose of ensuring compliance with the laws of war.

Turning next to the conduct of the party against whom the right is
exercised — a party who already has disregarded the laws of war — that
party would only be stimulated to release all the nuclear power at its dis-
posal in response to that retaliation — unless, of course, it has been
totally destroyed.

In these circumstances, any invitation to this Court to enthrone the
legitimacy of nuclear reprisal for a nuclear attack is an invitation to
enthrone a principle that opens the door to arbitrariness and lack of
restraint in the use of nuclear weapons.

The sole justification, if any, for the doctrine of reprisals is that it is a
means of securing legitimate warfare. With the manifest impossibility of
that objective in relation to nuclear weapons, the sole reason for this
alleged exception vanishes. Cessante ratione legis, cessat ipsa lex.

4. Internal Wars

The question asked of the Court relates to the use of nuclear weapons
in any circumstance. The Court has observed that it is making no
observation on this point. It is my view that the use of the weapon is
prohibited in all circumstances.

The rules of humanity which prohibit the use of the weapon in external
wars do not begin to take effect only when national boundaries are
crossed. They must apply internally as well.

Article 3 which is common to the four Geneva Conventions applies to
all armed conflicts of a non-international character and occurring in the
territory of one of the Powers parties to the Convention. Protocol IT of
1977 concerning internal wars is couched in terms similar to the Martens
Clause, and refers to “the principles of humanity and to the dictates of
public conscience”.

Thus international law makes no difference in principle between inter-
nal and external populations.

Moreover, if nuclear weapons are used internally by a State, it is clear
from the foregoing analysis of the effects of nuclear weapons that the
effects of such internal use cannot be confined internally. It will produce
widespread external effects, as Chernobyl has demonstrated.

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5. The Doctrine of Necessity

Does the doctrine of necessity offer a principle under which the use of
nuclear weapons might be permissible in retaliation for an illegitimate act
of warfare?

There is some support for the principle of necessity among the older
writers, especially those of the German school !**, who expressed this doc-
trine in terms of the German proverb “Kriegsraeson geht vor Kriegs-
manier” (“necessity in war overrules the manner of warfare”). However,
some German writers did not support this view and in general it did not
have the support of English, French, Italian and American publicists !*°.

According to this doctrine, the laws of war lose their binding force
when no other means, short of the violation of the laws of war, will offer
an escape from the extreme danger caused by the original unlawful act.

However, the origins of this principle, such as it is, go back to the days
when there were no laws of war, but rather usages of war, which had
not yet firmed into laws accepted by the international community as
binding.

The advance achieved in recognition of these principles as binding
laws, ever since the Geneva Convention of 1864, renders untenable the
position that they can be ignored at the will, and in the sole unilateral
judgment, of one party. Even well before World War I, authoritative
writers such as Westlake strenuously denied such a doctrine !** and, with
the new and extensive means of destruction — particularly submarine
and aerial — which emerged in World War I, the doctrine became
increasingly dangerous and inapplicable. With the massive means of
destruction available in World War II, the desuetude of the doctrine was
even further established.

Decisions of war crimes tribunals of that era attest to the collapse of
that doctrine, if indeed it had ever existed. The case of the Peleus !87 relat-
ing to submarine warfare, decided by a British military court; the Milch
case!88, decided by the United States Military Tribunal at Nuremberg;
and the Krupp case !%, where the tribunal addressed the question of grave
economic necessity, are all instances of a judicial rejection of that doc-
trine in no uncertain terms!”°.

184 See the list of German authors cited by Oppenheim, op. cit., Vol. II, p. 231, foot-
note 6.

185 Jbid., p. 232.

186 Westlake, International Law, 2nd ed., 1910-1913, pp. 126-128; The Collected Papers
of John Westlake on Public International Law, ed. L. Oppenheim, 1914, p. 243.

187 War Crimes Reports, 1946, i, pp. 1-16.

188 War Crimes Trials, 1948, 7, pp. 44, 65.

189 Thid., 1949, 10, p. 138.

190 See, on these cases, Oppenheim, op. cit., pp. 232-233.

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The doctrine of necessity opens the door to revenge, massive devasta-
tion and, in the context of nuclear weapons, even to genocide. To the
extent that it seeks to override the principles of the laws of war, it has no
place in modern international law.

In the words of a United States scholar:

“where is the military necessity in incinerating entire urban popu-
lations, defiling the territory of neighboring and distant neutral
countries, and ravaging the natural environment for generations to
come...?...If so, then we are witness to the demise of Nurem-
berg, the triumph of Kriegsraison, the virtual repudiation of the
humanitarian rules of armed conflict . . . The very meaning of
‘proportionality’ becomes lost, and we come dangerously close
to condoning the crime of genocide, that is, a military campaign
directed more towards the extinction of the enemy than towards the
winning of a battle or conflict.” 1°!

6. Limited or Tactical or Battlefield
Nuclear Weapons

Reference has already been made to the contention, by those asserting
legality of use, that the inherent dangers of nuclear weapons can be mini-
mized by resort to “small” or “clean” or “low yield” or “tactical” nuclear
weapons. This factor has an important bearing upon the legal question
before the Court, and it is necessary therefore to examine in some detail
the acceptability of the contention that limited weapons remove the
objections based upon the destructiveness of nuclear weapons.

The following are some factors to be taken into account in considering
this question:

(i) No material has been placed before the Court demonstrating that
there is in existence a nuclear weapon which does not emit radia-
tion, does not have a deleterious effect upon the environment, and
does not have adverse health effects upon this and succeeding gen-
erations. If there were indeed a weapon which does not have any of
the singular qualities outlined earlier in this opinion, it has not
been explained why a conventional weapon would not be adequate
for the purpose for which such a weapon is used. We can only deal
with nuclear weapons as we know them.

° 191 Burns H. Weston, “Nuclear Weapons versus International Law: A Contextual
Reassessment”, McGill Law Journal, 1983, Vol. 28, p. 578.

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Qi)

(ii)

(iv)

(v)

The practicality of small nuclear weapons has been contested by
high military’? and scientific '®? authority.

Reference has been made (see Section IV above), in the context of
self-defence, to the political difficulties, stated by former American
Secretaries of State, Robert McNamara and Dr. Kissinger, of
keeping a response within the ambit of what has been described as
a limited or minimal response. The assumption of escalation con-
trol seems unrealistic in the context of nuclear attack.

With the use of even “small” or “tactical” or “battlefield” nuclear
weapons, one crosses the nuclear threshold. The State at the receiv-
ing end of such a nuclear response would not know that the
response is a limited or tactical one involving a small weapon and
it is not credible to posit that it will also be careful to respond in
kind, that is, with a small weapon. The door would be opened and
the threshold crossed for an all-out nuclear war.

The scenario here under consideration is that of a limited nuclear
response to a nuclear attack. Since, as stated above,

(a) the “controlled response” is unrealistic; and

(b) a “controlled response” by the nuclear power making the first
attack to the “controlled response” to its first strike is even
more unrealistic,

the scenario we are considering is one of all-out nuclear war, thus
rendering the use of the controlled weapon illegitimate.

The assumption of a voluntary “brake” on the recipient’s full-
scale use of nuclear weapons is, as observed earlier in this opinion,
highly fanciful and speculative. Such fanciful speculations provide
a very unsafe assumption on which to base the future of humanity.

As was pointed out by one of the States appearing before the
Court:

“it would be academic and unreal for any analysis to seek to
demonstrate that the use of a single nuclear weapon in particular

192 General Colin Powell, A Soldier’s Way, 1995, p. 324:

“No matter how small these nuclear payloads were, we would be crossing

a threshold. Using nukes at this point would mark one of the most significant military
decisions since Hiroshima. . . . I began rethinking the practicality of those small
nuclear weapons.” ;

193 See Bulletin of the Atomic Scientists, May 1985, p. 35, at p. 37, referred to in
Malaysian Written Comments, p. 20.

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(vi)

(vii)

(viii)

(ix)

circumstances could be consistent with principles of humanity.
The reality is that if nuclear weapons ever were used, this would
be overwhelmingly likely to trigger a nuclear war.” (Australia,
Gareth Evans, CR 95/22, pp. 49-50.)

In the event of some power readying a nuclear weapon for a strike,
it may be argued that a pre-emptive strike is necessary for self-
defence. However, if such a pre-emptive strike is to be made with
a “small” nuclear weapon which by definition has no greater blast,
heat or radiation than a conventional weapon, the question would
again arise why a nuclear weapon should be used when a conven-
tional weapon would serve the same purpose.

The factor of accident must always be considered. Nuclear weap-
ons have never been tried out on the battlefield. Their potential for
limiting damage is untested and is as yet the subject of theoretical
assurances of limitation. Having regard to the possibility of human
error in highly scientific operations — even to the extent of the
accidental explosion of a space rocket with all its passengers aboard
— one can never be sure that some error or accident in construc-
tion may deprive the weapon of its so-called “limited” quality.
Indeed, apart from fine gradations regarding the size of the weapon
to be used, the very use of any nuclear weapons under the stress of
urgency is an area fraught with much potential for accident '°*. The
UNIDIR study, just mentioned, emphasizes the “very high risks of
escalation once a confrontation starts” 1%.

There is some doubt regarding the “smallness” of tactical nuclear
weapons, and no precise details regarding these have been placed
before the Court by any of the nuclear powers. Malaysia, on the
other hand, has referred the Court to a United States law forbid-
ding “research and development which could lead to the produc-
tion . . . of a low-yield nuclear weapon” (Written Comments,
p. 20), which is defined as having a yield of less than 5 kilotons
(Hiroshima and Nagasaki were 15 and 12 kilotons, respectively) !%°.
Weapons of this firepower may, in the absence of evidence to the
contrary, be presumed to be fraught with all the dangers attendant
on nuclear weapons, as outlined earlier in this opinion.

It is claimed a weapon could be used which could be precisely
aimed at a specific target. However, recent experience in the Gulf
War has shown that even the most sophisticated or “small”
weapons do not always strike their intended target with precision.

194 See the UNIDIR Study, Risks of Unintentional Nuclear War, supra.

195 Ibid., p. 11.

196 National Defense Authorization Act for Fiscal Year (FY) 1944, Public Law, 103-
160, 30 November 1993.

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(x)

(xi)

(xii)

327

If there should be such error in the case of nuclear weaponry, the
consequence would be of the gravest order.

Having regard to WHO estimates of deaths ranging from one mil-
lion to one billion in the event of a nuclear war which could well be
triggered off by the use of the smallest nuclear weapon, one can
only endorse the sentiment which Egypt placed before us when it
observed that, having regard to such a level of casualties: “even
with the greatest miniaturization, such speculative margins of risk
are totally abhorrent to the general principles of humanitarian
law” (CR 95/23, p. 43).
Taking the analogy of chemical or bacteriological weapons, no one
would argue that because a small amount of such weapons will
cause a comparatively small amount of harm, therefore chemical or
bacteriological weapons are not illegal, seeing that they can be used
in controllable quantities. If, likewise, nuclear weapons are gener-
ally illegal, there could not be an exception for “small weapons”.
If nuclear weapons are intrinsically unlawful, they cannot be ren-
dered lawful by being used in small quantities or in smaller ver-
sions. Likewise, if a State should be attacked with chemical or
bacteriological weapons, it seems absurd to argue that it has the
right to respond with small quantities of such weapons. The fun-
damental reason that all such weapons are not permissible, even in
self-defence, for the simple reason that their effects go beyond the
needs of war, is common to all these weapons.

Even if — and it has not been so submitted by any State appearing
before the Court — there is a nuclear weapon which totally elimi-
nates the dissemination of radiation, and which is not a weapon of
mass destruction, it would be quite impossible for the Court to
define those nuclear weapons which are lawful and those which are
unlawful, as this involves technical data well beyond the compe-
tence of the Court. The Court must therefore speak of legality in
general terms.

The Court’s authoritative pronouncement that all nuclear weap-
ons are not illegal (ï.e., that every nuclear weapon is not illegal)
would then open the door to those desiring to use, or threaten to
use, nuclear weapons to argue that any particular weapon they use
or propose to use is within the rationale of the Court’s decision. No
one could police this. The door would be open to the use of what-
ever nuclear weapon a State may choose to use.

It is totally unrealistic to assume, however clearly the Court
stated its reasons, that a power desiring to use the weapon
550 THREAT OR USE OF NUCLEAR WEAPONS (DISS. OP. WEERAMANTRY)

would carefully choose those which are within the Court’s stated
reasoning.

VIII. Some ARGUMENTS AGAINST THE GRANT
OF AN ADVISORY OPINION

1. The Advisory Opinion Would be Devoid of Practical Effects

It has been argued that, whatever may be the law, the question of the
use of nuclear weapons is a political question, politically loaded, and
politically determined. This may be, but it must be observed that, how-
ever political be the question, there is always value in the clarification of
the law. It is not ineffective, pointless and inconsequential.

It is important that the Court should assert the law as it is. A decision
soundly based on law will carry respect with it by virtue of its own inher-
ent authority. It will assist in building up a climate of opinion in which
law is respected. It will enhance the authority of the Court in that it will
be seen to be discharging its duty of clarifying and developing the law,
regardless of political considerations.

The Court’s decision on the illegality of the apartheid régime had little
prospect of compliance by the offending Government, but helped to cre-
ate the climate of opinion which dismantled the structure of apartheid.
Had the Court thought in terms of the futility of its decree, the end of
apartheid may well have been long delayed, if it could have been achieved
at all. The clarification of the law is an end in itself, and not merely a
means to an end. When the law is clear, there is a greater chance of com-
pliance than when it is shrouded in obscurity.

The view has indeed been expressed that, in matters involving “high
policy”, the influence of international law is minimal. However, as Pro-
fessor Brownlie has observed in dealing with this argument, it would be
“better to uphold a prohibition which may be avoided in a crisis than to
do away with standards altogether” !%”.

I would also refer, in this context, to the perceptive observations of
Albert Schweitzer, cited at the very commencement of this opinion,
on the value of a greater public awareness of the illegality of nuclear
weapons.

The Court needs to discharge its judicial role, declaring and clarifying
the law as it is empowered and charged to do, undeterred by considera-
tions that pertain to the political realm, which are not its concern.

197 “Some Legal Aspects of the Use of Nuclear Weapons”, op. cit., p. 438, emphasis
added.

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2. Nuclear Weapons Have Preserved World Peace

It was argued by some States contending for legality that such weapons
have played a vital role in support of international security over the last
fifty years, and have helped to preserve global peace.

Even if this contention were correct, it makes little impact upon the
legal considerations before the Court. The threat of use of a weapon
which contravenes the humanitarian laws of war does not cease to con-
travene those laws of war merely because the overwhelming terror it
inspires has the psychological effect of deterring opponents. This Court
cannot endorse a pattern of security that rests upon terror. In the dra-
matic language of Winston Churchill, speaking to the House of Com-
mons in 1955, we would then have a situation where, “Safety will be the
sturdy child of terror and survival the twin brother of annihilation.” A
global régime which makes safety the result of terror and can speak of
survival and annihilation as twin alternatives makes peace and the human
future dependent on terror. This is not a basis for world order which this
Court can endorse. This Court is committed to uphold the rule of law,
not the rule of force or terror, and the humanitarian principles of the
laws of war are a vital part of the international rule of law which this
Court is charged to administer.

A world order dependent upon terror would take us back to the state
of nature described by Hobbes in The Leviathan, with sovereigns “in the
posture of Gladiators; having their weapons pointing and their eyes fixed
on one another ... which is a posture of Warre”!°°.

As international law stands at the threshold of another century, with
over three centuries of development behind it, including over one century
of development of humanitarian law, it has the ability to do better than
merely re-endorse the dependence of international law on terror, thus set-
ting the clock back to the state of nature as described by Hobbes, rather
than the international rule of law as visualized by Grotius. As between
the widely divergent world views of those near contemporaries, interna-
tional law has clearly a commitment to the Grotian vision; and this case
has provided the Court with what future historians may well describe as
a “Grotian moment” in the history of international law. I regret that the
Court has not availed itself of this opportunity. The failure to note the
contradictions between deterrence and international law may also help to
prolong the “posture of Warre” described by Hobbes, which is implicit in
the doctrine of deterrence.

However, conclusive though these considerations be, the weakness of
the argument that deterrence is valuable in that it has preserved world

198 Thomas Hobbes, The Leviathan, ed. James B. Randall, Washington Square Press,
1970, p. 86.

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peace does not end here. It is belied by the facts of history. It is well docu-
mented that the use of nuclear weapons has been contemplated more
than once during the past 50 years. Two of the best-known examples
are the Cuban Missile Crisis (1962) and the Berlin Crisis (1961). To these,
many more could be added from well-researched studies upon the
subject !°?. The world has on such occasions been hovering on the brink
of nuclear catastrophe and has, so to speak, held its breath. In these con-
frontations, often a test of nerves between those who control the nuclear
button, anything could have happened, and it is humanity’s good fortune
that a nuclear exchange has not resulted. Moreover, it is incorrect to
speak of the nuclear weapon as having saved the world from wars, when
well over 100 wars, resulting in 20 million deaths, have occurred since
194520, Some studies have shown that since the termination of World
War II, there have been armed conflicts around the globe every year, with
the possible exception of 19687°!, while more detailed estimates show
that in the 2,340 weeks between 1945 and 1990, the world enjoyed a
grand total of only three that were truly war-free2°2.

It is true there has been no global conflagration, but the nuclear
weapon has not saved humanity from a war-torn world, in which there
exist a multitude of flashpoints with the potential of triggering the use of
nuclear weapons if the conflict escalates and the weapons are available.
Should that happen, it would bring “untold sorrow to mankind” which it
was the primary objective of the United Nations Charter to prevent.

IX. CONCLUSION
1. The Task before the Court

Reference has been made (in Section VI.3 of this opinion) to the wide
variety of groups that have exerted themselves in the anti-nuclear cause
— environmentalists, professional groups of doctors, lawyers, scientists,
performers and artists, parliamentarians, women’s organizations, peace
groups, students’ federations. They are too numerous to mention. They
come from every region and every country.

199 For example, The Nuclear Predicament: A Sourcebook, D. U Gregory (ed.), 1982.

200 Ruth Sivard, in World Military and Social Expenditures, World Priorities, 1993,
p. 20, counts 149 wars and 23 million deaths during this period.

201 See Charles Allen, The Savage Wars of Peace: Soldiers’ Voices 1945-1989, 1989.

202 Alvin and Heidi Toffler, War and Anti-War: Survival at the Dawn of the 21st Cen-
tury, 1993, p. 14.

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There are others who have maintained the contrary for a variety of
reasons.

Since no authoritative statement of the law has been available on the
matter thus far, an appeal has now been made to this Court for an
opinion. That appeal comes from the world’s highest representative
organization on the basis that a statement by the world’s highest judicial
organization would be of assistance to all the world in this all-important
matter.

This request thus gives the International Court of Justice a unique
opportunity to make a unique contribution to this unique question. The
Opinion rendered by the Court has judicially established certain impor-
tant principles governing the matter for the first time. Yet it does not go
to the full extent which I think it should have. |

In this opinion I have set down my conclusions as to the law. While
conscious of the magnitude of the issues, I have focused my attention on
the law as it is — on the numerous principles worked out by customary
international law, and humanitarian law in particular, which cover the
particular instances of the damage caused by nuclear weapons. As stated
at the outset, my considered opinion on this matter is that the use or
threat of use of nuclear weapons is incompatible with international law
and with the very foundations on which that system rests. I have sought
in this opinion to set out my reasons in some detail and to state why the
use or threat of use of nuclear weapons is absolutely prohibited by exist-
ing law — in all circumstances and without reservation.

It comforts me that these legal conclusions accord also with what I per-
ceive to be the moralities of the matter and the interests of humanity.

2. The Alternatives before Humanity

To conclude this opinion, I refer briefly to the Russell-Einstein Mani-
festo, issued on 9 July 1955. Two of the most outstanding intellects of
this century, Bertrand Russell and Albert Einstein, each of them specially
qualified to speak with authority of the power locked in the atom, jomed
a number of the world’s most distinguished scientists in issuing a
poignant appeal to all of humanity in connection with nuclear weapons.
That appeal was based on considerations of rationality, humanity and
concern for the human future. Rationality, humanity and concern for the
human future are built into the structure of international law.

International law contains within itself a section which particularly
concerns itself with the humanitarian laws of war. It is in the context of
that particular section of that particular discipline that this case is set. It
is an area in which the concerns voiced in the Russell-Einstein Manifesto
resonate with exceptional clarity.

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Here are extracts from that appeal:

“No one knows how widely such lethal radioactive particles may
be diffused, but the best authorities are unanimous in saying that a
war with H-bombs might possibly put an end to the human race...

... We appeal, as human beings, to human beings: Remember
your humanity, and forget the rest. If you can do so, the way lies
open to a new Paradise; if you cannot, there lies before you the risk
of universal death.”

Equipped with the necessary array of principles with which to respond,
international law could contribute significantly towards rolling back the
shadow of the mushroom cloud, and heralding the sunshine of the
nuclear-free age.

No issue could be fraught with deeper implications for the human
future, and the pulse of the future beats strong in the body of interna-
tional law. This issue has not thus far entered the precincts of interna-
tional tribunals. Now that it has done so for the first time, it should be
answered — convincingly, clearly and categorically.

(Signed) Christopher Gregory WEERAMANTRY.

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Appendix
(Demonstrating danger to neutral States)

COMPARISON OF THE EFFECTS OF BOMBS

B c D

A — Lethal area from the blast wave of the blockbusters used in the Second
World War.

B — Lethal area from the blast wave of the Hiroshima bomb.
C — Lethal area from the blast wave of a 1-Mt bomb.
D — Lethal area for fallout radiation from a 1-Mt bomb.

333