Law and the Pathology of Nuclearism

01 August 1998
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There was a time - remember Dr. Strangelove? - when the saner specimens of humanity believed that nuclear warriors were actually stark raving mad. 'These madmen have a comet by the tail', said Lewis Mumford in 1946, 'but they think to prove their sanity by treating it as if it were a child's skyrocket.' By now the reality of nukes, the sham of deterrence and the delusion of non-proliferation have been with us so long that they have acquired a kind of bogus respectability that makes it possible to discuss events like the Indo-Pakistani tests in the serious currency of political science.

So long as discourse remains disconnected from reality, it may prove difficult to convince the apostles of the nuclear creed and their deluded followers that their arguments lack credibility and that the high ground of reason belongs to apostates such as General George Lee Butler, commander of all US nuclear forces until 1994. He now believes that, 'Nuclear weapons are irrational devices. They were rationalized and accepted as a desperate measure in the face of circumstances that were unimaginable. ... There is no security to be found in nuclear weapons. It's a fool's game'.

Return to Reality-Based Discourse

Given this rhetorical difficulty, there may be some advantage in turning to the law, whose prescriptions are known at times to transcend popular discourse and lay down norms which all are bound - in principle - to observe, regardless of how they may feel about the merits of the particular issue. Fortunately, in the matter of nuclear weapons, one may turn to the Advisory Opinion rendered by the International Court of Justice on July 8, 1996. The General Assembly of the United Nations had put this question to the court: 'Is the threat or use of nuclear weapons in any circumstance permitted under international law?'

The court, considered the highest tribunal in the world in matters of international law, held that 'the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law.' The case was considered so weighty by the fourteen judges who decided it (all of them learned and leading members of the international law community) that each - for the first time in the history of the court - wrote a separate opinion, agreeing with or dissenting from the official opinion. Given the composition of the court, these opinions represent both the moral clarity of the non-nuclear states and the doublespeak of the nuclear ones and their NATO allies. In the former category, we find the then President of the court, the highly respected Mohammed Bedjaoui of Algeria, describing the course of the nuclear weapon since Hiroshima as 'what the Koran calls `a long nocturnal voyage', a nightmare the end of which humanity cannot foresee, to this day.' Other descriptions of the nuclear system by Judge Bedjaoui are 'mortiferous', 'the universal government of death', 'thanatocracy', and 'the ultimate evil.' 'Nuclear war', said Judge Bedjaoui in another passage, 'and humanitarian law seem to be two antitheses which radically exclude each other, the existence of the one necessarily implying the non-existence of the other.' ('Humanitarian law' is the technical term for the laws of war.) In other words, there is no way nuclear weapons can be used in accordance with the laws of war.

Judge - now Vice President - Weeramantry of Sri Lanka deals with the problem of the inadequacy of language in the face of nuclear war in his magisterial 87 page opinion. Such terms as 'collateral damage', 'acceptable level of damage', and 'deterrence', he says, serve only as euphemisms concealing reality:

Both ancient philosophy and modern linguistics have clearly identified the problem of the obscuring of great issues through language which conceals their key content. Confucius, when asked how he thought order and morality could be created in the state, answered, 'By correcting names.'

Judge Shahabuddeen of Guyana begins his lengthy opinion with Robert Oppenheimer's quote of the ancient Indian verse, 'I am become death, the shatterer of worlds', which has a special resonance now that the explosions at Pokhran have brought the nuclear madness full circle. He is critical of that part of the majority opinion which states that:

in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat and use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defense, in which the very survival of a State would be at stake,

because, he says, the purpose of law is to preserve civilization and therefore it cannot possibly be legal to take actions 'which could annihilate mankind.' And in a footnote acknowledging the dilemma which faced the court, he compares it to the dilemma which, according to Herodotus,

confronted the learned judges of Persia when, asked by King Cambyses whether he could marry his sister, they made prudent answer 'that though they could discover no law which allowed brother to marry sister, there was undoubtedly a law which permitted the king of Persia to do what he pleased'.

Even judges from 'the Nuke five' and NATO or potential NATO states had sane things to say about these insane weapons, giving the lie to the conventional wisdom that the judges of the World Court, who are supposed to vote independently, only mouth the positions of their respective governments. Thus, Rosalyn Higgins of the UK, the first woman judge in the history of the court, while criticizing the majority for its waffling and voicing doubt as to the usefulness of any legal opinion 'to protect mankind against the unimaginable suffering we all fear', echoes Judge Weeramantry's caution against reality-veiling euphemisms:

It may well be asked of a judge whether, in engaging in legal analysis of such concepts as 'unnecessary suffering', 'collateral damage' and 'entitlement to self-defense', one has not lost sight of the real human circumstances involved.

Judge - now President - Schwebel of the US, while joining Judge Higgins and Judge Guillaume of France in voting against the majority opinion, had at least this to say:

It cannot be accepted that the use of nuclear weapons on a scale which would - or could - result in the deaths of many millions in indiscriminate inferno and by far-reaching fallout, have profoundly pernicious effects in space and time, and render uninhabitable much or all of the earth, could be lawful.

Judge Fairer-Bravo of Italy wrote that 'the idea of nuclear deterrence has no legal value whatsoever' and 'the totality of the normative production of the last fifty years, particularly in the field of the humanitarian law of war, is incompatible with the technological development of the production of nuclear weapons.'

Judge Fleischhauer of Germany, in supporting the majority's finding of general illegality, held that:

The nuclear weapon is, in many ways, the negation of the humanitarian considerations underlying the law applicable in armed conflict and of the principle of neutrality. The nuclear weapon cannot distinguish between civilian and military targets. It causes immeasurable suffering. The radiation released by it is unable to respect the territorial integrity of a neutral State.

And Judge Herczegh of Hungary, a state eager to join the nuke-reliant NATO, let it be known that, in his opinion:

The fundamental principles of international humanitarian law, correctly expounded in the advisory opinion, categorically and unequivocally prohibit the use of weapons of mass destruction, including nuclear weapons. International humanitarian law knows no exceptions to these principles.

Can all these judges be wrong? Probably not. What they said, unencumbered by dreams of superpower glory and considerations of national insecurity, surely comes closer to the essence of nuclearism than the embarrassing apologias of the heads of nuke states, whether they be American, Russian, Indian, Pakistani or Israeli.

But the best is yet to come. In an unsolicited, unanimous concluding paragraph of the Opinion, the court declared:

There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.

The Beginning of the End for Nuclear Weapons?

This mandate, promoted by the vast majority of the world's non-nuclear states and cavalierly ignored by most, but not all, of the nuclear ones, has given the anti-nuclear movement a great infusion of energy. It crops up in every forum concerned with the nuclear problem: Costa Rica relies on it to make the Model Nuclear Weapons Convention, produced by legal and scientific experts from civil society, an official United Nations document. Malaysia uses it to launch, two years in a row, General Assembly resolutions, approved by overwhelming majorities, calling on the nuclear powers to commence negotiations for nuclear disarmament. The retired generals and admirals and the retired heads of state and other civilian leaders refer to it in their statements calling for nuclear abolition. And most recently, the New Agenda Coalition, organized by Ireland and Sweden and including South Africa, Slovenia, Mexico, Egypt, Brazil and New Zealand, cites it in urging the nuclear powers to get on with the job to which they committed themselves in Article VI of the Non-Proliferation Treaty, the job of ridding the world of nuclear weapons.

The Advisory Opinion has also greatly heartened the non-governmental anti-nuclear movement and moved many of its adherents from a small steps - CTBT, START II ratification, fissile materials cutoff, etc. - to an all-out approach. The Abolition 2000 network now has more than a thousand supporting organizations worldwide. Nuclear abolition is one of the centerpieces of the massive conference being organized by the Hague Appeal for Peace for May 1999, the centenary of the First International Peace Conference in The Hague.

Having gone, in two short centuries, from the town meeting to representative democracy to republican corporatism, we are now witnessing something akin to a return to fundamental democracy in the vastly increased role played by an informed, morally charged civil society in a world whose appointed and self-appointed leaders have run out of steam as well as ideas.

During the three weeks of hearings on the nuclear weapons case in the fall of 1995, some countries, led by the UK, tried to convince the World Court that it should abstain from rendering an opinion altogether, because it was a case instigated by civil society and therefore not a real case. Fortunately the court, except for one judge, Oda of Japan, gave this argument short shrift, thus demonstrating that it was still able to distinguish between the virtual reality of the nuclear warriors and the all too real reality of their potential victims.

It is now up to civil society to expose the hypocrisy of the 'official' nuclear powers (i.e., the five recognized in the NPT, and particularly the three nuclear NATO countries) in the face of Article VI of the NPT and the mandate of the World Court. Here is a short list of how such a confrontation would play:

  • They - the nuclear powers - say that the Court's Opinion is 'merely advisory', but they do not deny, in principle, that the World Court's views on the interpretation and application of international law are authoritative and must be taken seriously.
  • They say that they are committed to the 'eventual' or 'ultimate' abolition of nuclear weapons, but they refuse to commit themselves to any sort of time frame for achieving this goal, thus reducing it to a meaningless pietism.
  • They say that achieving nuclear abolition is an extremely complex task, which is not untrue, but they do not explain how even a complex task can be solved without commencing the process of solving it; in this case, starting the negotiations which the General Assembly has now twice asked them to do.
  • They say that they are working on nuclear disarmament step by step, but in the meantime the US is revving up the nuclear arms race by engaging in new weapons design under a forty billion dollar program called, euphemistically, 'Stockpile Stewardship.'
    (See, in this connection, A Faustian Bargain: Why 'Stockpile Stewardship is Fundamentally Incompatible with the Process of Nuclear Disarmament', available from Western States Legal Foundation, fax 1-510-839-5397, email wslf@igc.org).

Civil society will not be alone in confronting the 'Nuke 5', who have now become the Nuke 8. The great majority of the world's nations want to enter the 21st century free of the threat of omnicide. It will be interesting to see whether India and Pakistan, having blasted their way into the nuclear club, will be true to their professed commitment to abolition, or whether hypocrisy comes with the nuclear territory.


Peter Weiss, a member of TNI's advisory board, is President of IALANA, the International Association of Lawyers Against Nuclear Arms. He was counsel to the Government of Malaysia in the Nuclear Weapons Case.