The Advisory opinion of the ICJ on the legality of Nuclear Weapons

One of my first memories is a beautiful warm summer night, sitting in the garden with my grandfather, looking up to the stars. Then my grandfather started to talk about two powerful men in the world, who have all the capability just by pushing two buttons to destroy the entire planet. The bombs would come with great light and unbearable heat and there would be nowhere to hide. Everybody and everything would be destroyed. I remember the shock I felt, I could not understand why would somebody want to destroy me. This was precipitation of the Cold War in a remote village of Eastern Europe.

With the end of the Cold War the whole international climate seemed to change fundamentally. The theory that there is no stronger basis to human coexistence than "genocidal fear" was weakened. The arms race ended and it seemed clear that we are at crossroads. Disarmament was a political reality for the first time since the bomb was created. It soon became clear however, that there was no real political intention to do so. Security continued to be identified by nuclear strategy.

It turned out also that the cease of enmity between the superpowers did not turn the world into a peaceful heaven. The last decade of this century has been just as violent as the previous ones, with the major conflict situations in Yugoslavia and the Gulf and several bloody conflicts in different third world countries. It seemed also that the international community’s attention had been averted from the question of disarmament.

The question of nuclear weapons came back to the picture when allegations were spread in the media about Iraq having or almost having weapons of mass destruction; chemical and biological weapons and maybe nuclear weapons. This exposed the vulnerability and the imperfectness of the present regime of monitoring proliferation of nuclear weapons.

The nuclear tests by France, India and Pakistan also showed that we are still leaving in a world of a possible nuclear war. The spread of the weapons of mass destruction to officially non-nuclear state mean also a higher risk that it is actually going to be used- intentionally or by accident.

In this tense environment the United Nations General Assembly (UNGA) adopted a resolution requesting the International Court of Justice (ICJ) to render its Advisory Opinion on the following question: "Is the threat or use of nuclear weapons in any circumstances permitted under international law?"

In many respects both the question and the Court’s actual opinion are of historical importance. The ICJ dealt with the question despite the fact that most nuclear weapon states held that the Court has no jurisdiction on the matter.

Basically, the court concluded, that the threat or use of nuclear weapons (without drawing any distinctions between the two) falls under the principles and rules of jus in bello, particularly international humanitarian law, and thus it is generally unlawful- because it fails to comply with the requirements of its rules such as proportionality, discrimination between combatants and non-combatants, prohibition of causing unnecessary suffering, obligation of respecting the integrity of non-belligerent states, prohibition on genocide and crimes against humanity, prohibition against causing lasting and severe damage to the environment (ecocide)

The court could not conclude even in an "extreme circumstance of self-defence" that the use or threat of nuclear weapons would be lawful, though it failed to state that the use or threat of nuclear weapons is unlawful in every circumstance whatsoever. (2E) All of the dissenting opinions emphasised however, that this failure by no means should be interpreted as the Court actually legitimising the threat or use of nuclear weapons in any circumstances.

To underline its determination on the subject the Court found that there exists an obligation under international law to pursue disarmament. This was not part of the original question, however.

The Court’s Advisory Opinion bears of great importance; this was the first case that the question of nuclear weapons was dealt with by any tribunals in the world, which proved that nuclear weapons are subject to international law.

The Court looked at all relevant legal materials; treaties, customary law. Its first role was to find what is the law on nuclear weapons. It was of great importance, since in the light of the ICJ`s findings it became clear that under international law it is extremely hard to justify the threat or use of nuclear weapons; indeed the very existence of such devices. It is troubling however, that in the Court could not give a clear answer on the question of extreme circumstance of self-defence. The courts` non liquet answer exposed the fact that "the construction of a solid edifice for the total prohibition on the use of nuclear weapon is not yet complete" and also that this is due to "lack of willingness not of building materials"

It is very sad that the Advisory Opinion did not get much publicity and even the few articles misinterpreted the Courts` stance. These misinterpretations show that it was quite dangerous to leave a grey area on the law. A convincing, clear and categorical answer would have been of greater educational effect. There needs to be a "reorientation of human consciousness ".

The nuclear weapon states also simply ignored the opinion. It is true that the advisory opinions are not legally binding, but in practice they are followed in 90% of the cases. The advisory opinion is authoritative in that it embodies the collective view on a point of law of the highest judicial organ of international law.

It shows, however the political reality, that the question of security is still widely identified by the strategy of nuclear defence. This doctrine is entrenched too deeply in the minds of the strategists of nuclear weapon states and others under the "defence umbrella" of a nuclear superpower.

There are more and more voices even in the nuclear states that the nuclear strategy in itself is a paradox. The nuclear weapons are being discredited as military means. Their use appears wholly disproportionate at every circumstance and the use raises enormous risks. The joint statement of Gen. Lee Butler and Gen. Goodpaster stated: "Nuclear weapons are inherently dangerous, hugely expensive, militarily inefficient and morally indefensible."

This inefficiency was clear in the case of Iraq (not to mention the many cases of mutual threatening in the Cold War). It has no power of deterrence unless there is real intention of actually using it. It is hard to imagine any circumstance when a state could use nuclear weapons and the credibility of such threats thus is low. It is very useful though for the leader of the enemy country to convince his people that their very existence is endangered and this common threat unites these people.

The other lesson from Iraq is that collective security works with conventional weapons, and even these conventional weapons together with economic sanctions can cause vast destruction and suffering to the people.

A third lesson is clear from the Gulf crisis; that is on the spread of nuclear weapons. With the end of the Cold War the existing monitoring system is not efficient anymore to prevent the spread of nuclear weapons; many of the newly independent countries of the Soviet bloc having the capacities to sell parts and technologies to countries determined to have nuclear weapons. Thus the risk that a "Saddam Hussein" of the world will actually acquire such weapon (and uses it) is highly increased. "We depend on the eternal absence of madness, miscalculation, accident and bad look. If we look at the course of history it looks a poor bargain."

Besides the official nuclear weapon states there are several de facto nuclear weapon states: India, Israel, Pakistan, South Africa and several close to have such weapons: Iran, Brazil, Argentina, Taiwan, Iraq, Korea. There could be a longer list than that though. If nuclear weapon states continue to argue the legality and efficiency of the nuclear weapons than they will encourage other states to have their own nuke. It also sends the message to the international community that the threat of use of nuclear weapons is an acceptable means of diplomacy.

The people arguing for the nuclear weapons use the magic word deterrence as their ultimate argument. They argue that nuclear weapons prevented the outbreak of a World War III. It is hard to test the truth of this statement. Such strategists quote Hiroshima as the proof of effectiveness of these weapons. This is a very weak argument though. In that case nobody else had the bomb so there was no danger of escalation into nuclear war. The bombing of Hiroshima was clearly against humanitarian law- in terms of non-discrimination, causing unnecessary suffering- and as such unlawful. This kind of use of the weapon is unjustifiable even in case of self-defence.

From the fact that no nuclear weapon has been used since we can see that the taboo on the use of nuclear weapon is very strong. Any use can lead to mutual destruction. Nuclear weapons are too dangerous to be useable. Even the threat of use is unacceptable for the public and triggers hostile reactions. Besides the clear risks of a nuclear war it also bears political costs. It is not very popular to play with nuclear weapons even on the level of political rhetoric.

International law has outlawed aggression in the Charter of the UN, in Article 4(2), leaving only the narrow space of self- defence and collective self-defence. Criticists of the UN security regime claim that there are widespread violations of Art 2(4) already constitute state practice. The reality, however, is that there are relatively few blatant violations of the article and those are condemned by large numbers of states.

There are three different possible strategies for self-defence: