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Dissenting Opinion of Judhge Weeramantry
INDEX
Preliminary Observations on the Opinion of the Court
I INTRODUCTION
1. Fundamental importance of issue before the Court
2. Submissions to the Court
3. Some Preliminary Observations on the United Nations Charter
4. The law relevant to nuclear weapons
5. Introductory observations on Humanitarian Law
6. Linkage between humanitarian law and the realities of war
7. The limit situation created by nuclear weapons
8. Possession and Use
9. Differing Attitudes of States supporting Legality
10. Importance of a clarification of the law
II NATURE AND EFFECTS OF NUCLEAR WEAPONS
1. The Nature of the Nuclear Weapon
2. Euphemisms concealing the realities of nuclear war
3. The Effects of Nuclear Weapons
(a) Damage to the environment and the eco-system
(b) Damage to future generations
(c) Damage to civilian populations
(d) The Nuclear Winter
(e) Loss of Life
(f) Medical effects of radiation
(g) Heat and Blast
(h) Congenital deformities
(i) Transnational damage
(j) Potential to destroy all civilization
(k) The electro-magnetic pulse
(l) Damage to nuclear reactors
(m) Damage to food productivity
(n) Multiple nuclear explosions resulting from self-defence
(o) "The shadow of the mushroom cloud"
4. The Uniqueness of the Nuclear Weapon
5. The differences in scientific knowledge between the present time and 1945
6. Do Hiroshima and Nagasaki show that nuclear war is survivable?
7. A Perspective from the Past
III HUMANITARIAN LAW
1. Elementary Considerations of Humanity
2. Multicultural background to the Humanitarian Laws of War
3. Outline of humanitarian law
4. Acceptance by States of the Martens clause
5. "The dictates of public conscience"
6 Impact of the United Nations Charter and human rights on
"considerations of humanity" and "dictates of public conscience"
7. The argument that "collateral damage" is unintended
8. Illegality exists independently of specific prohibitions
9. The Lotus decision
10. Specific rules of the humanitarian laws of war (Jus in Bello)
(a) the prohibition against causing unnecessary suffering
(b) the principle of discrimination
(c) respect for non-belligerent states
(d) the prohibition against genocide
(e) the prohibition against environmental damage
(f) human rights law
11. Juristic Opinion
12. The 1925 Geneva Gas Protocol
13. Article 23(a) of the Hague Regulations
IV SELF DEFENCE
1. Unnecessary suffering
2. Proportionality / Error
3. Discrimination
4. Non-belligerent states
5. Genocide
6. Environmental damage
7. Human rights
V SOME GENERAL CONSIDERATIONS
1. Two philosophical perspectives
2. The Aims of War
3. The Concept of a "Threat of Force" under the United Nations Charter
4. Equality in the Texture of the Laws of War
5. The logical contradiction of a dual regime in the laws of war
6. Nuclear Decision-making
VI THE ATTITUDE OF THE INTERNATIONAL COMMUNITY
TOWARDS NUCLEAR WEAPONS1. Universality of the ultimate goal of complete elimination
2. Overwhelming majorities in support of total abolition
3. World public opinion
4. Current Prohibitions
5. Partial Bans
6. Who are the States most specially concerned?
7. Have States, by participating in regional treaties, recognized
the use or threat of use of nuclear weapons as legal?
VII SOME SPECIAL ASPECTS
1. The Non-Proliferation Treaty
2. Deterrence
3. Reprisals
4. Internal Wars
5. The doctrine of necessity
6. Limited Nuclear Weapons
VIII SOME ARGUMENTS AGAINST THE GRANT OF
AN ADVISORY OPINION1. The Advisory Opinion would be devoid of practical effects
2. Nuclear Weapons have preserved world peace
IX CONCLUSION
1. The task before the Court
2. The alternatives before humanity
APPENDIX
(demonstrating danger to neutral States)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 weapons 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) ofä the Hague Regulations of 1907. It contradicts the fundamental 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 without exception. The Court should have so stated in a vigorous and forthright manner which would have settled this legal question now and forever.
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 partsä 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 I profoundly disagree. I believe those two paragraphs 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 isä 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 nuclear weapons is hemmed in and limited by a variety of treaty obligations.
In the environmental field, it is the first Opinion which expressly embodies, in the context of nuclear weapons, a principle of "prohibition of methods of warfare which not only are intended, but may also 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 possibility whatsoever of a use or threat of use that does not offend these principles. This Opinion examines at some length the numerous unique qualities 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 Art. 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 paragraphs of Part 2 of the dispositif. I shall deal first with the two paragraphs with which I disagree.
(c) Particular comments on the final paragraph
(i) Paragraph 2(B) - (11 votes to 3)
Regarding paragraph 2(B), I am of the view that there are comprehensive and universal limitations imposed by treaty upon the use of nuclear weapons. Environmental treaties and, in particular, the Geneva Gas Protocol 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.
(ii) Paragraph 2(E) - (7 votes to 7. Casting vote in favour by the President)
I am in fundamental disagreement with both sentences contained within this paragraph.
I strongly oppose the presence of the word "generally" in the first sentence. The word is too uncertain in content for use in an Advisory Opinion, and I cannot assent to a proposition which, even by remotest implication, leaves open any possibility that the use of nuclear weapons would not be contrary to law in any circumstances whatsoever. I regret the presence of this word in a sentence which otherwise states the law correctly. It would also appear that the word "generally" introducesä an element of internal contradiction into the Court's Opinion, for in paragraphs 2(C) and 2(D) of the Court's Opinion, the Court concludes that nuclear weapons must be consistent with the United Nations Charter, the principles 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 various gradations, from "asä a general rule; commonly", to "universally; with respect to all or nearly all"(1) . Even with the latter meaning, the word opens a window of permissibility, however narrow, which does not truly reflectä 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 useä of nuclear weapons would be contrary to the rules of international law and, in particular, to the principles and rules of humanitarian law. Paragraph 2(E) should have been in those terms, and the Opinion need have stated no more.
The second paragraph of 2(E) states that the current state of international 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 circumstances of self defence. It seems self-evident to me that once nuclear weapons are resorted to, the laws of war (the ius 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.
(iii) Paragraph 2(A) - (Unanimous)
Speaking for myself, I would have viewed this unquestionable proposition 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 paragraph 1(C) of the dispositif as rendering the use of the nuclear weapon illegal without regard 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 1(C) as laying that argument to rest.
(v) Paragraph 2(D) - (Unanimous)
This paragraph, also unanimously endorsed by the Court, lays down the further limitation of compatibility with the requirements of international 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 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 unlawful 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 legalityä of other important aspects of nuclear weapons, such as possession, vertical or horizontal 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 (lines 23-25) 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 disagreement 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 question 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.
(vii) Paragraph 1 - (13 votes to 1)
One other matter needs to be mentioned before I commence the substantive 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 legality of nuclear weapons. I strongly support the views expressed by the Court in the course of its reasoning on these matters, butä I have some further thoughts upon these objections, which I have set out in my Dissenting Opinionä in relation to the WHO Request, where also similar objections 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 on these matters in that Dissenting Opinion should be read as supplementary to this Opinion as well.
* * *
I 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 twenty-four have made oral submissions. A multitude of organizations, including several NGO's, 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 Archivist at over three million(2) . 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(3) . Though these organizations and individuals have not made formal submissions to the Court, they evidence 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 illegalityä 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 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!"(4)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(5) but, until the two current requests for Advisory Opinions from this Court, there has been no international judicial consideration of the question. The responsibility 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 opposing points of view. The Court has had the advantage of being addressed by a number of the most distinguished practitionersä in the field of international 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. äIt 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 asä it is envisaged in the future. Is the use or threat of 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 lex lata not with lex ferenda.
At the most basic level, three alternative possibilities could offer themselves 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,ä if legal rules or principles dictate that the nuclear weapon is illegal, the Court will so pronounce, undeterred again by the immense forces ranged on the side of the legality of the weapon. As statedä 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 factual 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 weapons, 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, including the NPT in particular, carryä 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 lex 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 important 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 forty days intervened 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 comparatively 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 in 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 influence 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 conscience", in relation to the means and methods of warfare that are permissible.
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 presumably have been steeled even further had the destructiveness and the intergenerational effects of nuclear war been known.
The Charter immediately follows those two key concepts with a third - the dignity and worthä 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"(6) .
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.
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"(7) , 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 ius 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 specifically 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 particular circumstances.5.National law, constitutional and statutory, that may apply to decisions 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 international 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. In the language of a notable declaration in this regard (the St. Petersburg Declaration of 1868), international humanitarian law is designed to "conciliate 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 comprehensive formulations.
It is today a substantial body of law, consisting of general principles flexible enough to accommodate unprecedented developments in weaponry, 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 Additional Protocols, apart from numerous other conventions on special matters 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"(8) . Humanitarian law grows as the sufferings of war keep escalating. With the nuclear weapon, those sufferings reach a limit situation, 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 inquiries 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 intellectually 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 appropriately. Indeed, it is by turning the spotlight on the agonies of the battlefield 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 19th century tended to view war emotionally, as a glorious enterprise, and practically, asä a natural extension of diplomacy. Legitimized 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 complacency 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 frightfulness: 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 ...His description of the aftermath is no less powerful:A little further on, it is the same picture, only made the more ghastly by the approach ofä 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."
"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?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 appropriate measure, as amply demonstrated by the global protests, the General Assembly resolutions, and the universal desire to eliminate nuclear weapons altogether. It does not sit back in a spirit of scholarly detachment, drawing its conclusions from refined exercises in legal logic.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."
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 advantage, not present in Dunant's time - the established discipline of humanitarian 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 contemporary documentation. The victims were not combatants, as was the case at Solferino:
"It was a horrible sight. Hundreds of injured people who were trying 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.Multiply this a thousand-fold or even a million-fold and we have a picture of just one of the many possible effects of nuclear war."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 prayed for him. He didn't say anything more.] His plea for water must have been his last words."(9)
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 explosions that would almost inevitably follow in quick succession in the event of a nuclear war today (see section II.6 below). Moreover, fifty years of development have intervened, with bombs being available now which carry seventy or even seven hundred 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, leave 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 civilization - all that thousands of years of effort in all cultures have produced. It is true "the dreary story of sickened survivors lapsing into stone-age brutality is not an assignment that any sensitive person undertakes willingly"(10) , but it is necessary to "contemplate the likely outcome of mankind's present course clearsightedly" (ibid.). Since nuclear weapons can destroy all life on the planet, they imperil all that humanity has ever stood for, and humanity itself.
An analogy may here be drawn between the law relating to the environment 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 reorientate 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:
"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" (France, CR 95/23, p. 79; I.C.J. Reports 1986, p. 135; emphasis added).This passage clearly relates to possession, not use.Much was made also of the Nuclear Non-Proliferation Treaty, as permitting nuclear weaponsä to the nuclear weapons states. Here again such permission, if any, as may be inferred from that treaty relates to possession 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 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 principle 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, tr. p. 15, 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 governing 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 disproportionate depends entirely on the circumstances, including the nature of the enemy threat, the importanceä of destroying the objective, the character, size and likely effects of the device, and the magnitude of the risk to civilians." (United States Written Statement, p. 23.)The United States position thus carefully takes into account such circumstances 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 III.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 applicability of the Martens clause, submits that the clause does not on its own establish the illegality of nuclear weapons (UK 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 legalityä 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 June 6, 1899, Mr. Martens (presiding over the Second Subcommission of the Second Commission of the Hague Conference), after whom the Martens clause has been named, (which will be referred to at some 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 interest of the weak that these rights and duties be defined. ...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 fifty years. It has remained unresolved and has hung over the future of humanity, like a great question mark, raising even issues so profound as the future of human life upon the planet.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 determining the laws and customs of war. They have separated, leaving utter vagueness for all these questions. ...
To leave uncertainty hovering over these questions would necessarily be to allow the interests of force to triumph over those of humanity ..."(11)
The law needs to be clearly stated in the light of State rights and obligations 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 fifty 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
1. 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.
The Court is inquiring 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 promote 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 civilization 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 disembodied language of military operations and the polite language of diplomacy. They conceal the horror of nuclear war, diverting attention to intellectual concepts suchä 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 terrorä is described as "nuclear preparedness"; assured destruction as "deterrence", total devastation of the environment as "environmental damage". Clinically detached from their human context, such expressions bypass the world of human suffering, out of which humanitarian 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(12) .
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". By this he meant calling each thing by its correct name(13) .
Modern semantics has likewise exposed the confusion caused by words of euphemism, which conceal the true meanings of concepts(14) . The language of nuclear war, rich in these euphemisms, tends to sidetrack the real issues of extermination by the million, incineration of the populations of cities, genetic deformities, inducement of cancers, destruction of the food chain, and the imperillingä 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"(15) . The nuclear weapons exploded in Hiroshima and Nagasaki were more or less of the explosive power of 15 and 12 kilotons respectively, i.e., 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 excessä 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 comprehend them, they have been graphically concretized in various ways. One of them is to picture the quantity of TNT representedä by a single one-megaton bomb, in terms of its transport by rail. It has been estimated that this would require a train two hundred miles long(16) . 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 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 1000 miles long, as would be the case with a 5-megaton bomb, or 4000 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 dwarfsä all historical precedents, even if they are considered cumulatively. A 5-megaton weapon would represent more explosive power than all of the bombs used in World War II and a twenty-megaton bomb "more than all of the explosives used in all of the wars in the history of mankind" (ibid.).
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 1000 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(17) 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"(18) .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 weaponsä 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 eco-system(19)
The extent of damage to the environment, which no other weapon is capable of causing, has been summarized in 1987 by the World Commission 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 thermonuclear bomb can have an explosive power greater than all the explosives used in wars since the invention of gunpowder. In addition 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."(20)Nuclear weapons have the potential to destroy the entire eco-system 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 hearings, is the damage caused by ionizing radiation to coniferous forests, crops, the food chain, livestock and the marine eco-system.
(b) Damage to future generations
The effects upon the eco-system 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 twenty thousand 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 sample falls by a factor of two. Among known radioactive isotopes, half lives range from about 10 to the -7th seconds to 10 to the 16th years"(21) .
The following table gives the half-lives of the principal radioactive elements that result from a nuclear test.
Nucleid.................Half-lifeCesium 137..........30.2 yearsStrontium 90.........28.6 yearsPlutonium 239.......24,100 yearsPlutonium 240.......6,570 yearsPlutonium 241.......14.4 yearsAmericium 241......432 years (22)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 recognition 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 international 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 incorporate the principle of protecting the natural environment for future generations, and elevate the concept to the level of binding state obligation.
Juristic opinion is now abundant, with several major treatises appearing upon the subject and with such concepts as intergenerational equity and the common heritage of mankind being academically well established(23) . Moreover, there is a growing awareness of the ways in which a multiplicity of traditional legal systems across the globe protect the environment for future generations. To these must be added a series of major international declarations commencing with the 1972 Stockholm Declaration 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 forward to the promotion of social progress and better standards of life, and they fix their vision, not only on the present, but on "succeeding generations".
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 international law, butä 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."(24)(d) The Nuclear WinterOne 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 Winter: Global Consequences of Multiple Nuclear Explosions" , 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(26) . 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 an 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 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 apparent that life everywhere on this planet would be threatened."(27)(e) Loss of lifeThe WHO estimate of the number of dead in the event of the use of a single bomb, a limited war and a total war vary 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, according 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 fall-out.
"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."(28)Over and above the immediate effects just set out, there are longer term effects caused by ionizing radiation acting on human beings and on the environment. Such ionization causes cell damage and the changes that occur may destroy the cell or diminish its capacity to function(29) .After a nuclear attack the victim population suffers from heat, blast and radiation, and separate studies of the effects of radiation are complicated 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, uncomplicated by blast and/or burn."(30)Apart from the long-term effects such as keloids and cancers, these effects include in the short- term anorexia, diarrhoea, cessation of production of new blood cells, haemorrhage, bone marrow damage, damage to the central nervous system, convulsions, vascular damage, and cardiovascular collapse(31) .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 - 5000 trucks, 800 buses, 240 ambulances, helicopters and special trains(32) . Yet the Chernobyl explosion was thought to be approximately thatä of a half-kiloton bomb (ibid., p. 127) - about 1/25 of the comparatively "small" Hiroshima bomb, which was only 1/70 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 suffering ... does not emerge from the figures and statistics only ... but from the account of survivors". These recordsä of harrowing suffering are numerous and well known(33) .
Reference should also be made to the many documents received by the Registry in this regard, including materials from the International Symposium: Fifty Years since the Atomic Bombing of Hiroshima and Nagasaki. It is not possible in this Opinion even to attempt the briefest summary 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 radiation suffer from various malignant tumours caused by radiation, including 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' vulnerability 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 exposure, from radiation emitted from the ground, from buildings charged with radioactivity, and from radioactive fall-out 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(34) .
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. That medical material should also be considered as incorporated in this account of the unique effects of the nuclear weapon.
(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 conventional bombs, the third is peculiar to nuclear weapons. In addition to instantaneous radiation, there is also radioactive fall-out.
The distinctiveness of the nuclear weapon can also be seen from statistics of the magnitude of the heat and blast it produces. The representative 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 atmospheres. 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(35) . 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 1000 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."(36)(h) Congenital deformitiesThe 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 result in a crop of deformed and defective offspring, as proved in Hiroshima and Nagasaki (where those who were in the vicinity of the explosion - the hibakusha - have complained for years of social discrimination 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 monitored for several generations to clarify the genetic impact, which means that the descendants will be forced to live in anxiety for generations 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 individuals. Nothing can be done for them medically. The atom bomb stamped its indelible mark on the lives of these utterly innocent unborn babies." (Ibid., 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 atmospheric testing of nuclear weapons. She gave the Court a moving description of the various birth abnormalities seen on that island after the exposure 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 radiation came.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"(37) .Women on Rongelap, Likiep, Ailuk and other atolls in the Marshall Islands have given birth to these 'monster babies'. ... One woman on Likiep gave birth to a child with two heads. ... There is 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,ä 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.)
(i) Transnational damage
Once a nuclear explosion takes place, the fall-out from even a single local detonation cannotä be confined within national boundaries(38) . According to WHO studies, it would extend hundreds of kilometres downwind and the gamma ray exposure from the fall-out could reach the human body, even outside national boundaries, through radioactivity deposited in the ground, through inhalation from the air, through consumption 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 case ofä 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 uncontrolled 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 notä 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 Belorus than before the accident, that about 375,000 people in Belorus, 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(39) . 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 explosions of Hiroshima and Nagasaki.
(j) 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:
"The European allies should not keep asking us to multiply strategic 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."(40)So, also, Robert McNamara, United States Secretary of Defense from 1961 to 1968, has written:
"Is 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 available for use? The answer is clearly no."(41)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 weapons 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
All the institutions of ordered society - judiciaries, legislatures, police, medical services, education, transport, communications, postal and telephone 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"(42) .
(ii) 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:
"The task ... would be not to restore the old economy but to invent a new one, onä 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 economic 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 automobile 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."(43)(iii) Cultural treasuresAnother 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 cultural property is entitled to special protection. Historical monuments, works of art or places of worship which constitute the cultural or spiritual 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 Wartime. 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(44) . 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.
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 buildings(45) . A nuclear attack on a city such as Cologne would thus deprive Germany, in particular, and the world community in general, of a considerable 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 preservation 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 electrons 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 aroundä 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 communication lines are cut, health services (among other essential services) disruptedä and organized modern life collapses. Even the command and control systems geared for responsesä 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'Électronique, describes the effects of the electromagnetic pulse in the following terms:
"Electromagnetic pulse, nuclear pulse; strong pulse of electromagnetic 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 inä 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 equipment in a large country, such as the United States, as well as a large part of its energy distribution networks, without other effects being felt on the ground, with military consequences easy to imagine." [Translation of the Registry.(46) ]An important aspect of the electromagnetic pulse is that it travels at immense speeds, so thatä 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(47) .
(l) Damage to nuclear reactors
The enormous area of devastation and the enormous heat released would endanger all nuclear powers stations within the area, releasing dangerous levels of radioactivity apart from that released by the bomb itself. Europe alone has over 200 atomic power stations dotted across the continent, someä 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"(49) .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.The effects of such radiation could include anorexia, cessation of production of new blood cells, diarrhoea, haemorrhage, damage to the bone marrow, convulsions, vascular damage and cardiovascular collapse(50) .
(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 populationä 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."(51)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 various parts of the Pacific,ä 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(52) . 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."(53)(n) Multiple nuclear explosions resulting from self-defenceIf the weapon is used in self-defence after an initial nuclear attack, the eco-system, which had already sustained the impact of the first nuclear attack, would have to absorb on top of this the effect of the retaliatory 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 tendency to release as strong a retaliation as is available must enter into any realistic evaluation of the situation. The eco-system 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.
(o) "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 blanket 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 Manhattan Project in Los Alamos, a Rapporteur for the 1983 WHO investigation into the Effects of Nuclear War on Health and Health Services, and a Nobel Laureate. Professor Rotblat was a member of one of the delegations, but was prevented by ill health from attending the Court.
Here is a passage from his statement to the Court:
"I have read the written pleadings prepared by the United Kingdom 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 WeaponsAfter 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 compelling 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. cause death and destruction;
2. induce cancers, leukaemia, keloids and related afflictions;
3. cause gastro intestinal, cardiovascular and related afflictions;
4. continue for decades after their use to induce the health-related problems mentioned above;
5. damage the environmental rights of future generations;
6. cause congenital deformities, mental retardation and genetic damage;
7. carry the potential to cause a nuclear winter;
8. contaminate and destroy the food chain;
9. imperil the eco-system;
10. produce lethal levels of heat and blast;
11. produce radiation and radioactive fall-out;
12. produce a disruptive electromagnetic pulse;
13. produce social disintegration;
14. imperil all civilization;
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 knowledge to learn of additional effects."(55)The words of the General Assembly, in its "Declaration on the Prevention 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"(56) .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. Juxtapose 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 consequences 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 July 17, 1945, United States Secretary of War, Stimson, informed Prime Minister Churchill of the successful detonation of the experimental nuclear bomb in the New Mexican desert, with the cryptic message "Babies satisfactorily born"(57) . 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 military studies, there have been detailed studies by WHO and other concerned 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 additional 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 consequences. 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 humanitarian law, and in a sense welding them together in one overall consideration, 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 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 differences 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 assistance. 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.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.
Hiroshima and Nagasaki thus do not prove the survivability of nuclear war.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 betweenä 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 correlation 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 precursors, might quite easily shatter every relationship and institution of mankind."(58)The power that would be unleashed by the atom was known theoretically in 1913. That theoretical knowledge was enough, even without practical 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 international law is still the subject of serious discussion, considering that the power of the bomb was awesomely demonstrated forty years after its consequences were thus seen as "quite plain", and that the world has had a further fifty years of time for reflection after that event.
III 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. 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 Russia 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 collective 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 limitations under customary rather than treaty law." (Written Statement, p. 18.)The United States states:
"The United States has long taken the position that various principles 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 confirmed 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 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 humanitarian 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 civilians, 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 Stateä in any given situation contrary to the elementary considerations 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,ä 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 argument 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 April 2, 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."(59)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 American President, President Reagan, "I pray forä the day when nuclear weapons will no longer exist anywhere on earth"(60) . That sentiment, shared by citizens across the world - as set out elsewhere in this Opinion - provides the background to modern humanitarian law, which has progressed 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 purposesä of fighting one's enemy. The problem under consideration is a universal problem, and this Court isä a universal Court, whose composition is required by its Statute to reflect the world's principal cultural traditions(61) . 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(62) .
Of special relevance in connection with nuclear weapons is the ancient South Asian tradition regarding the prohibition on the use of hyperdestructive weapons. This is referred to in the two celebrated Indian epics, the Ramayana and the Mahabharatha, which are known and regularly reenacted 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.
The Ramayana(63) 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"(64) .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(65) . The Greek historian Megasthenes(66) 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(67) .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 extraordinary or unconventional types was not even moral, let alone in conformity with religion or the recognized laws of warfare.(68)"Weapons causing unnecessary suffering were also banned by the Laws of Manu as, for example, arrows with hooked spikes which, after entering the body would be difficult to take out, or arrows with heated or poisoned tips(69) .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(70) . For example,ä 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(71) .In the Christian tradition, the Second Lateran Council of 1139 offers an interesting illustrationä 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"(72) . 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 Wednesdayä to sunrise on Monday(73) .
Gratian's Decretum in the 12th 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. Augustine examined the concept of the just war (jus ad bellum) in great detail, the ius in bello was not the subject of detailed study for some centuries.
Vitoria gathered together various traditions upon the subject, including traditions of knightly warfare from the age of chivalry; Aquinas 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 applicationä of poison on weapons such as swords or spears(74) . 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(75) 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"(76) . 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(77) .
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."(78)In rendering an Advisory Opinion on a matter of humanitarian law concerning the permissibility ofä 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(79) .Examples of the adoption of humanitarian principles in more recent history are numerous. For example, in the Crimean War in 1855, the banning 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 proposed in 1862, but rejected by the Government(80) .
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 19th 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"(81) .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 humanity in a vast range of civilizations and cultures.Grotius' encyclopedic study of literature, from which he drew his principles, 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 ius in bello.
3. Outline of humanitarian law
Humanitarian principles have long been part of the basic stock of concepts 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.
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, referred to at the 1899 Peace Conference as having resulted in great benefit, not only to the United States troops but also to thoseä 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 II, was "the logical and natural development". This conference in turn led to the Peace Conference of 1899, and in its turnä to the Hague Conventions which assume so much importance in this case(82) .
The St. Petersburg Declaration of 1868 provided that "the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy" - and many subsequent declarations have adopted and reinforced this principle(83) . It gives expression to a very ancient rule of war accepted by many civilizations(84) .
The Martens clause, deriving its name from Mr. Martens, was by unanimous vote, inserted into the preamble to the Hague Convention II 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 inhabitants 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(85) . It appears in one form or another in several major treaties on humanitarian law(86) . The Martens clause clearly indicatesä 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(87) .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 recognized the pre-eminent importance of considerations of humanity in fashioning 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 accelerating under the impact of technology. It was visualized that more sophisticated 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 meantä 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 principles 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)International law has long distinguished between conventional weapons and those which are unnecessarily cruel. It has also shown a continuing interest in this problem. For example, the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate 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 II); 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(89) , and projectiles diffusing asphyxiating or deleterious gases as also being extraordinarily cruel(90) , 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 compounded when that weapon hasä 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 floundering in the midst of its own tec