Lord Advocate’s Reference

Introduction

There is a sense in which the policy of deterrence presents the greatest barrier to the broad recognition of the unlawfulness of the use of nuclear weapons. It seems to be widely recognised that nuclear weapons, at least strategic nuclear weapons and probably virtually all nuclear weapons, are not reasonably useable. Yet many thoughtful and sincere people, leaders and populace alike, widely believe that the policy of deterrence makes sense: we have these weapons so no one else will use such weapons or commit acts of extreme violence against us.

Hence, the welcome nature of the recent decision of the Scots High Court of Justiciary ("High Court") in the Zelter case addressing the policy of deterrence. The Court, if my analysis is correct, got it wrong - but the decision serves to focus our thinking and hopefully the creative efforts of leaders of all persuasions throughout the world on the severe risks inherent in the policy of deterrence.

Following are the facts and procedural history of the case, as described by the High Court.¹ Angela Zelter, Bodil Roder, and Ellen Moxley ("respondents") were indicted at Greenock Sheriff Court for causing damage on June 8, 1999 to the vessel Maytime and certain property on board the Maytime, then moored in the waters of Loch Goil in Scotland. They were charged with malicious damage and theft.² Respondents defended on the basis that the Maytime played a support role in connection with submarines carrying Trident II missiles with nuclear warheads; that the deployment of such nuclear weapons by the United Kingdom under the policy of deterrence is in breach of customary international law, and, as such, illegal and criminal under Scots law; and accordingly that the otherwise criminal actions of the respondents to prevent or obstruct a crime were justified and hence not criminal.

After trial, the sheriff directed the jury to return a verdict of not guilty as to each of the respondents.³ Proceeding under Section 123(1) of the Scots Criminal Procedure Act 1995, the Lord Advocate thereafter petitioned the High Court to decide points of law that had arisen in the matter below.⁴

The High Court’s Decision

The High Court found the Greenock sheriff wrong on the law, determining that the United Kingdom’s deployment of Trident warheads under the policy of deterrence is not unlawful and that respondents’ actions were not justified under the doctrine of necessity or under international law. Although the Crown had not objected to the justiciability of the legal issues as to Trident and deterrence, the Court added that, if such an objection had been made, the Court would likely have upheld it on the basis that such questions were for the executive not the courts to decide.⁵

This article sets forth my appraisal of the High Court’s resolution of the international law issues as to Trident and deterrence.

The High Court stated at the outset that it was not its role, in addressing the Lord Advocate’s Reference, to make factual findings as to Trident or deterrence, but rather to decide the questions presented based on a "broader approach" than "any single or established view of the facts."⁶ The Court went on to state, however, that, while the Crown disputed respondents’ version of such matters,⁷ the Court regarded it as "appropriate" to answer the Lord Advocate’s Reference based on such facts which it characterized as "hypothetical."⁸ As to the characteristics of the Trident nuclear warheads, the Court thus assumed the following facts:⁹

• that the warheads are "100 to 120 kilotons each, approximately eight or ten times larger than the weapons used at Hiroshima and Nagasaki;"
• that the blast, heat and radioactive effects of detonation of such a warhead would be extreme, with "inevitably uncontainable radioactive effects, in terms of both space and time;"
• "that the damage done, and the suffering caused, could not be other than indiscriminate;"
• that it was not possible to use the weapons "in restricted ways, defensively or tactically" or to direct them "only against specific types of targets;"
• that it was not possible to use the weapons in such a way as "to remove this element of being indiscriminate in the suffering and damage which they would cause;"
• that the weapons would be "inevitably indiscriminate as between military personnel and civilians who could not be excluded from the uncontainable effects;"
• that even if much smaller warheads were used (and the possibility of this was not accepted in the context of the United Kingdom’s deployment of Trident) "one was still dealing with weapons of mass destruction, with uncontainable consequences;" and
• that the foregoing effects of the Trident would be "inevitable and indiscriminate."

As to the UK’s nuclear policy and intentions, the Court assumed the following:¹⁰

• the Government’s actual willingness and intention to use Trident nuclear weapons;
• "the familiar facts of deterrence (round-the-clock deployment, permanent preparedness to fire in a few minutes notice, long-term targeting and deployments related to particular trouble spots and the like) and also statements in various forms from high Government sources indicating a willingness and intention to use these weapons in response not only to nuclear attack but in certain other circumstances;"
• the risk that if certain circumstances were to emerge there would be a risk of threat and actual use; and
• the continuing and continuous risk of actual use and indiscriminate consequences that are inherent in deployment of Trident nuclear weapons.

The High Court stated that it was its role to reach "its own conclusions as to the rules of customary international law, taking full account of, but not being bound by, the conclusions reached by the International Court of Justice (the ’Nuclear Weapons Advisory Opinion’)."¹¹ In support of its conclusions, the High Court relied on two sources: the ICJ decision mentioned here - the July 8, 1996 Nuclear Weapons Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons - and a speech delivered at Oxford in October 1998 by Ronald King Murray (Lord Murray), former Lord Advocate of Scotland and Senator of the Scots College of Justice, and a subsequent article by Murray.¹²

Based on its reading of the ICJ’s decision, the High Court concluded that there were two "fundamentals flaws" in respondents’ contention that the United Kingdom’s deployment of Trident is in breach of customary international law:

"First, the submissions advanced on behalf of the respondents appear to us to ignore the fact that the relevant rules of conventional and customary international law, and in particular the rules of international humanitarian law, are not concerned with regulating the conduct of states in time of peace. They specifically related to warfare and times of armed conflict, and are designed to regulate the conduct of belligerents, against one another or against some neutral state."¹³

"Quite apart from the fact that the relevant rules of international humanitarian law appear to be restricted to situations of armed conflict, a question arises in relation to any rule which is concerned with the ’threat or use’ of force or of nuclear weapons, as to whether there is indeed a "threat" of the kind which the rule equiparates with actual use. ... And we are entirely satisfied that the general minatory [threatening] element in the deployment of nuclear weapons in time of peace, even upon the respondents’ hypothesis as to the United Kingdom Government’s policies and intentions, is utterly different from the kind of specific ’threat’ which is equated with actual use in those rules of customary international law which make both use and threat illegal."¹⁴

The High Court concluded:

"But broadly deterrent conduct, with no specific target and no immediate demands, is familiarly seen as something quite different from a particular threat of practicable violence, made to a specific "target", perhaps coupled with some specific demand or perhaps simply as the precursor of actual attack. The deployment of Trident II, however far one goes in adding hypotheses as to the immediacy with which it could be used against some potential and arguably identifiable target state, in our opinion in general lacks the links between threat and use, and an immediate target, which are essential to a "threat" of the kind dealt with by customary international law or in particular international humanitarian law. A state which has a deployed deterrent plainly could and might take some step which turned the situation into one of armed conflict, and involved a sufficiently specific threat to constitute a breach of customary international law. But that is another matter."¹⁵

The Court quoted Lord Murray’s statement as to the ICJ decision: "The court, I think rightly, proceeded on the basis that threat is equivalent to use. In this context threat means a practical warning directed against a specific opponent. So a general display of military might, such as a Red Square parade in Soviet days or a routine Trident submarine patrol, would not alone constitute a threat at law."¹⁶ Agreeing, the High Court stated:

"In relation to ordinary deployment, and routine patrols, that appears to us to be plainly right. In so far as they have a minatory element, it is so general and conditional that it is quite simply not a threat of the kind that is ’equivalent to use’. Whether that general position would be transformed into such a ’threat’ in some particular circumstances depends entirely upon those circumstances. According to the respondents, there have been occasions when specific circumstances would alter the general position, and give rise to a specific argument that what the United Kingdom was doing had on that occasion moved beyond general deterrence to specific ’threat’. These would be questions of fact; but one can have regard to this as an hypothesis. Even so, we see no basis for a contention that the general deployment of Trident in pursuit of a policy of deterrence constitutes a continuous or continuing ’threat’ of the kind that might be illegal as equivalent to use. In both of these respects, it appears to us that the respondents’ contention is baseless, and that the conduct of the United Kingdom Government, with which they sought to interfere, was in no sense illegal."¹⁷

The High Court characterized respondents’ argument as moving "from a claim that if certain circumstances were to emerge there would be a risk of threat and actual use, to a portrayal of the risk as already present."¹⁸ Illustrating its thinking, the High Court drew a distinction between two situations:¹⁹ "a youngster brandishing a knife at another a foot away from him, and perhaps indicting by word and action that he intends to stab him there and then," and "all the multifarious situations in which a person may say or show, perhaps very convincingly, that in some circumstances, specified or not, he would have recourse to violence against another or others."

Invalidity of the High Court’s Decision

In my view the High Court’s above conclusions are insupportable under international law and controverted by the very authorities upon which the High Court relied. The High Court is in error in saying that under the ICJ decision there are no restrictions on the use of force in time of peace; the ICJ decision was directly to the contrary. The High Court similarly misinterpreted the ICJ’s decision as to the circumstances in which the policy of deterrence constitutes an unlawful "threat" under international law. The High Court further overlooked the very facts it said it was assuming as to the effects of nuclear weapons.

The ICJ held that it is unlawful under international law for a state to threaten to use - or even to signal its readiness to use - force which it would be unlawful to use. The ICJ identified a wide range of circumstances in which the policy of deterrence would be unlawful:

"47. In order to lessen or eliminate the risk of unlawful attack, states sometimes signal that they possess certain weapons to use in self-defence against any state violating their territorial integrity or political independence. Whether a signalled intention to use force if certain events occur is or is not a "threat" within Article 2, paragraph 4, of the Charter depends upon various factors. If the envisaged use of force is itself unlawful, the stated readiness to use it would be a threat prohibited under Article 2, paragraph 4. Thus it would be illegal for a state to threaten force to secure territory from another state, or to cause it to follow or not follow certain political or economic paths. The notions of "threat" and "use" of force under Article 2, paragraph 4, of the Charter stand together in the sense that if the use of force itself in a given case is illegal - for whatever reason - the threat to use such force will likewise be illegal. In short, if it is to be lawful, the declared readiness of a state to use force must be a use of force that is in conformity with the Charter. For the rest, no state - whether or not it defended the policy of deterrence - suggested to the Court that it would be lawful to threaten to use force if the use of force contemplated would be illegal.

48. Some states put forward the argument that possession of nuclear weapons is itself an unlawful threat to use force. Possession of nuclear weapons may indeed justify an inference of preparedness to use them. In order to be effective, the policy of deterrence, by which those states possessing or under the umbrella of nuclear weapons seek to discourage military aggression by demonstrating that it will serve no purpose, necessitates that the intention to use nuclear weapons be credible. Whether this is a "threat" contrary to Article 2, paragraph 4, depends upon whether the particular use of force envisaged would be directed against the territorial integrity or political independence of a state,

or against the Purposes of the United Nations or whether, in the event that it were intended as a means of defence, it would necessarily violate the principles of necessity and proportionality. In any of these circumstances the use of force, and the threat to use it, would be unlawful under the law of the Charter."²⁰

The ICJ further stated, as to the requirements of humanitarian law, "If an envisaged use of weapons would not meet the requirements of humanitarian law, a threat to engage in such use would also be contrary to that law."²¹

In its description of these pivotal paragraphs of the ICJ decision,²² the High Court glossed over the ICJ’s conclusion that a state’s implementing the policy of deterrence would constitute a "threat" under the Article 2, paragraph 4 of the UN Charter not only if "the particular use of force envisaged would be directed against the territorial integrity or political independence of a state" but also if it would be "against the Purposes of the United Nations"²³ or "in the event that it were intended as a means of defence, it would necessarily violate the principles of necessity and proportionality."²⁴

Rather than identifying the ICJ’s articulation of the requirement that the exercise of self-defence must comply with the principles of necessity and proportionality, the High Court referred only to the ICJ’s having recognised "certain other considerations whereby the use or threat of force would be unlawful,"²⁵ and then simply assumed compliance of Trident and deterrence with such requirements. The Court stated, "In the absence of these other circumstances, therefore, it is directing a particular use of force against a particular ’target’ state’s integrity or independence which is seen as possibly amounting to a ’threat’ in the sense of Article 2, paragraph 4."²⁶ In so doing, the High Court assumed in the Crown’s favour a central issue it was called upon to decide. This approach is invalid as a matter of legal analysis. It also ignores the facts the Court said it was assuming - that the effects of Trident warheads would inevitably be uncontainable and indiscriminate. Effects that cannot be contained and cannot discriminate cannot be limited to what is necessary or proportionate and cannot comply with the requirement of discrimination. The fact that the threat is made in time of peace is immaterial. Under the ICJ’s analysis, a state may no more threaten unlawful military action in time of peace than in time of war. Article 2, paragraph 4 of the UN Charter prohibits such threats at any time if the use of force in self-defence would exceed the limits of permissible self-defence.

The High Court also gave inadequate weight to the ICJ’s determination that force used in self-defence would be unlawful if "against the Purposes of the United Nations." It is difficult to see how the use of nuclear weapons - with the inordinate and indiscriminate effects assumed by the High Court (described above) - could be anything but contrary to such purposes, although this is a point that was not developed by the ICJ.²⁷ Similarly, it is difficult to imagine how the inordinate effects of Trident warheads used in an excessive act of self-defence could fail to be directed against the "territorial integrity" and in effect the "political independence" of the target state.

The High Court concluded in ¶ 86 of its opinion that uses of nuclear weapons that violate humanitarian law could be lawful under the ICJ’s decision if done in an act of extreme self-defence.²⁸ In the High Court’s view, if a state is in a position of great peril, there are under the ICJ decision no definitive international law restraints on the level of force the state may use, regardless of the effects on non-combatants, neutrals and other protected persons and objects.

Interpreting Head E of the dispositif of the ICJ’s decision, the High Court stated, "Even if Trident is to be seen as inevitably indiscriminate, Head E does not in our opinion show that the court saw use or threat of such a weapon (as distinct from some small or tactical nuclear weapons) as always illegal."²⁹ Apparently inevitably indiscriminate weapons may potentially be used in extreme self-defence.

I submit that this reading by the High Court of the ICJ decision misses the central thrust of the decision and fails to take into consideration the specific provisions quoted above finding all uses of forces - including defensive ones - to be subject to the restraints of international law.³⁰ The High Court’s reading is also contrary to the ICJ’s admonition that the various grounds set forth in the ICJ decision are to be read not in isolation but rather in light of one another.³¹ It also fails to take into consideration the High Court’s recognition in the same paragraph that under the ICJ decision a "particular threat or use" will be unlawful if it "breaches any of the principles and rules of international humanitarian law."³²

The applicability of the law of armed conflict even to extreme circumstances was noted by the United States Military Tribunal in the Krupp trial: "It is an essence of war that one or the other side must lose and the experienced generals and statesmen knew this when they drafted the rules and customs of land warfare. In short, these rules and customs of warfare are designed specifically for all phases of war. They comprise the law for such emergency. To claim that they can be wantonly - and at the sole discretion of any one belligerent - disregarded when he considers his own situation to be critical, means nothing more or less than to abrogate the laws and customs of war entirely."³³

Contrary to the High Court’s reading of the ICJ decision, the ICJ determined that the exercise of self-defence is subject to humanitarian law: "[A] use of force that is proportionate under the law of self-defence, must, in order to be lawful, also meet the requirements of the law applicable in armed conflict which comprise in particular the principles and rules of humanitarian law."³⁴

If a weapon is unlawful, the fact that it is used for lawful self-defence or other lawful purpose does not immunise the unlawfulness. The ICJ stated:

"39. [Articles 51 and 42] do not refer to specific weapons. They apply to any use of force, regardless of the weapons employed. The Charter neither expressly prohibits, nor permits, the use of any specific weapon, including nuclear weapons. A weapon that is already unlawful per se, whether by treaty or custom, does not become lawful by reason of its being used for a legitimate purpose under the Charter."³⁵

Ironically, Great Britain, in its defence of nuclear weapons before the ICJ, acknowledged that the self-defensive use of nuclear weapons would be subject to humanitarian law. The UK attorney stated to the ICJ, "Assuming that a state’s use of nuclear weapons meets the requirements of self-defence, it must then be considered whether it conforms to the fundamental principles of the law of armed conflict regulating the conduct of hostilities."³⁶ Lord Murray himself, in the very next sentence following the one quoted by the High Court, stated: "What, then, of nuclear deterrence - is it a threat in law if missiles are targeted at key military installations of an opponent? On the face of it that would be a threat in law."³⁷

In a sense, the High Court’s distinction between the "youngster" threatening specific action here and now and the situation of a person describing the situations in which he would have resort to violence reveals the Court’s failure to apprehend the nature of the threat conveyed by deterrence. In reality, deterrence - based on the High Court’s own statement of the "hypothetical" facts, the evidence of record in the case, and matters of public record - is far more like the youngster making the threat to another a foot away than the vague toothless statement of general intent the High Court seems to believe.

The targets of the UK deterrence may not be a foot away, but realistically, in light of the physical capabilities of the weapons, the speed of potential delivery, the detailed nature of the targeting, and the computer programs for targeting and delivery, the targets, in the old sense of physical danger, might as well be in the room with the person pushing the button, the strike will be so swift and devastating. The United Kingdom’s policy of deterrence threatens the actual use of nuclear weapons.³⁸ The nuclear warheads are directable at specific targets within minutes and can reach such targets half way across the world with great speed and statistical accuracy. Trident warheads ranging between 100 and 120 kilotons are not the kind of putative "smaller, low yield tactical nuclear weapons" whose legality the UK, the US and other nuclear states defended before the ICJ,³⁹ but rather are strategic weapons of the kind the ICJ found to be generally unlawful.⁴⁰

The Trident missiles have a range of about 5000 miles or 7,400 kilometers,⁴¹ which they can apparently traverse in under thirty minutes.⁴² While they have been "de-targeted" in the limited sense that they are not currently pointed at any particular adversary,⁴³ this de-targeting is more symbolic than real. Real de-targeting, physical separation of the warheads from the missiles and storage of the respective units in separate places at a distance, was considered but rejected.44 The actual targets are set forth in computer programs, which remain in effect.⁴⁵ The re-targeting towards the pre-programmed targets can be accomplished in a matter of 10-15 minutes.⁴⁶

The targets are largely not even selected by the United Kingdom but rather by NATO⁴⁷ and the United States.⁴⁸ Such targeting has been perceived by Russia⁴⁹ and other countries, including Iraq,⁵⁰ to be threatening and has on a number of occasions been the subject of step-ups in alerting by targeted states, included a notable instance as recently as 1995, when Russia apparently believed a nuclear attack against it was in process from a point near Norway where the US patrolled Trident boats.⁵¹

For the foregoing reasons, the "general" practice of deterrence
  contrary to the High Court’s decision - ostensibly constitutes a sufficient level of "threat" under the ICJ decision to cross the threshold of unlawfulness if the threatened use of force would itself be unlawful. It should be noted, however, that the more specific level of threat with a "specific target" and an "immediate demand" which the High Court recognised could or possibly would be "equivalent to use" has existed at various points of time and unfortunately no doubt will exist again in the future.⁵² In a sense, this is the most interesting point of the High Court’s decision - the Court’s ostensible recognition of the potential unlawfulness of the practice of deterrence in circumstances when it is directed at a particular situation.

The UK government has itself recently reaffirmed the validity of the High Court’s assumption as to the uncontainableand indiscriminate effects of nuclear weapons. In a letter dated March 25, 2001, Dr. Lewis Moonie MP, the Parliamentary Under-Secretary of State for Defence, wrote to Dr. Kim Howells MP, in defending the putative lawfulness of Depleted Uranium (DU) weapons, that "Nuclear, biological and chemical weapons are indiscriminate weapons of mass destruction specifically designed to incapacitate or kill large numbers of people."⁵³

Deterrence may also be seen as a crime against the peace and a threat to commit a crime against humanity. The Nuremberg Charter defined "war crimes" as follows:

"[V]iolations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill treatment, or deportation to slave labor or for any other purpose, of civilian population of or in occupied territory, murder or ill treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity."⁵⁴

The Nuremberg Charter further defined "crimes against the peace" as follows: "planning, preparation, initiation, or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing."⁵⁵

The Nuremberg Charter defined "crimes against humanity" as follows: "murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetuated."⁵⁶

Conclusion

One can wonder and dispute whether law is relevant - whether Great Britain the United States, or other nuclear states care about the requirements of law in the area of national defence. But the requirements of the law, at least as defined by the ICJ, are beyond reasonable dispute. Yet now the Scots High Court comes along and, purporting to apply the ICJ decision, emasculates it.

If the policy of deterrence were simply innocent threatless possession of weapons whose use was recognised as irrational and not tenable, perhaps the risk of use would diminish. But it is not; deterrence is a policy of threatening overwhelming, disproportionate, and indiscriminate damage - threats that, to be effective, must be credible, backed up by weapons procurement, personnel training, contingency planning, pre-targeting, and weapons placement and alertness evidencing the resolve, on a virtually instantaneous basis, to actually use these weapons.

The notion that deterrence may be unthreatening because we independently recognise the unuseability of these weapons is contrary to the nature of deterrence and hence illusory. Deterrence is a Faustian bargain promising at best only delay of the suicidal apocalypse it portends.⁵⁷

Deterrence requires the communication of the intent to do the irrational, as reflected in the July 1995 US STRATCOM report "Essentials of Post-Cold War Deterrence," recommending that the United States project an "out of control," irrational, and vindictive willingness to use nuclear weapons in certain circumstances: "If ’some elements ... appear potentially "out of control,"’ it would create and reinforce fears and doubts within the minds of an adversary’s decision-makers. ’That the US may become irrational and vindictive if its vital interests are attacked should be a part of the national persona we project.’"⁵⁸

The effects of nuclear weapons are not reasonably subject to dispute and were assumed by the High Court. So too, the nature of the policy of deterrence is beyond reasonable dispute. The only real question is whether it is unlawful to threaten to do that which it is unlawful to do. The ICJ answered in the affirmative. The Scots High Court of Justiciary is in error - and does damage to the rule of law - by its abnegation of this restraint.

Notes and References

1. See Lord Advocate’s Reference No. 1 of 2000 [March 30, 2001] Misc 11/00 H.C.J. (Scot.), also available at http://www.gn.apc.org/tp2000/lar/laropin.html (May 21, 2001). A substantial portion of the record in the case is available on the Trident Ploughshares website at http://www.gn.apc.org/tp2000/lar/index.html

(May 23, 2001).

2. Attempted theft was also charged but not pressed by the Crown. See Lord Advocate’s Reference No. 1 of 2000, supra note 1, at ¶ 1.

3. See Greenock 1999 Summary of Sheriff Gimblett’s Ruling http://www.gn.apc.org/tp2000/greenock/crruling.html

(May 23, 2001) ("I have to conclude that the three accused in company with many others were justified in thinking that Great Britain in their use of Trident, not simply possession, the use and deployment of Trident allied with that use and deployment at times of great unrest, coupled with a first strike policy and in the absence of indication from any government official then or now that such use fell into any strict category suggested in the ICJ opinion ... the threat or use of Trident could be construed as a threat, has indeed been construed by others as a threat and as such is an infringement of international and customary law.")

4. Such a petition is not an appeal and does not affect the acquittal below. See Lord Advocate’s Reference No. 1 of 2000, supra note 1, at ¶ 13.

5. See id. at ¶¶ 56-60.

6. Id. at ¶ 62.

7. Based on its position that evidence was not properly admitted as to the substantive international issues raised by respondents, the Crown had not submitted its own evidence on the points. See id. at ¶ 64.

8. Id. at ¶ 62.

9. See id. at ¶¶ 63-64.

10. See id. at ¶ 64.

11. Id. at ¶ 66, referencing Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, Advisory Opinion, General List at pt. VI, 35-36, No. 95, 1996 I.C.J. Reports 226, 35 ILM 809 (July 8, 1996) available at http://www.icj-cij.org/icjwww/icases/iunan/iunan_judgment_advisory%20opinion_ 19960708/iunan_judgment_toc.htm (May 21, 2001) [hereafter, "The ICJ Nuclear Weapons Advisory Opinion"].

12. Id. at ¶ 98, citing Lord Ronald King Murray, "Nuclear Weapons and the Law," based on a speech given by Murray at Oxford in October 1998 and published in "Medicine, Conflict and Survival", vol 15 (1999) at pages 126-37, available at http://www.gn.apc.org/tp2000/legal/dmurray.html

(May 21, 2001).

13. Id. at ¶ 95

14. Id. at ¶ 96.

15. Id. at ¶ 97.

16. Id. at ¶ 98, quoting Lord Murray, supra note 12.

17. Id. at ¶ 98.

18. Id. at ¶ 64.

19. Id. at ¶ 97

20. The ICJ Nuclear Weapons Advisory Opinion, supra note 11, at ¶¶ 47-48 (emphasis supplied). The ICJ further stated in ¶ 67 of its opinion that it did not intend to pronounce upon the practice known as the policy of deterrence.

21. The ICJ Nuclear Weapons Advisory Opinion, supra note 11, at ¶ 78 (emphasis supplied). Inexplicably, the High Court in ¶ 80 of its decision construed the law as to threats to be limited to threats arising in the context of Article 2, paragraph 4 of the United Nations Charter, as if the law of armed conflict and humanitarian law do not apply to threats to use force prohibited under such law, although at ¶ 86 the High Court acknowledged that a threat to use force will be unlawful "if the particular threat or use breaches any of the principles and rules of international humanitarian law." Lord Advocate’s Reference No. 1 of 2000, supra note 1, at ¶¶ 80 and 86. See also, J. Burroughs, The Legality of Threat or Use of Nuclear Weapons 32-37 (Lit Verlag, Münster Germany 1997).

22. The High Court recognised these sections of the ICJ decision as "more directly relevant for present purposes." Lord Advocate’s Reference No. 1 of 2000, supra note 1, at ¶ 72.

23. The ICJ Nuclear Weapons Advisory Opinion, supra note 11, at ¶ 48.

24. Id.

25. Lord Advocate’s Reference No. 1 of 2000, supra note 1, at ¶ 72. (emphasis supplied).

26. Id.

27. UN Charter, June 26, 1945, arts. 1 & 2, UNTS XVI, USTS 993.

28. See Lord Advocate’s Reference No. 1 of 2000, supra note 1, at ¶ 86.

29. Id. The High Court’s emphasis on the narrow reading of the dispositiv sections of the ICJ decision largely ignores the substantive sections of the decision.

30. It must be acknowledged that the ICJ decision contains equivocal language on this point, although, I submit, the ICJ’s determination, in light of the totality of its opinion, is that even the exercise of self-defence in circumstances of extreme danger is subject to humanitarian law. See Charles J. Moxley, Jr., Nuclear Weapons and International Law in the Post Cold War World 174-84 (Austin & Winfield, Lanham, Maryland 2000).

31. The Court stated "that its reply to the question put to it by the General Assembly rests on the totality of the legal grounds set forth by the Court above (paragraphs 20 to 103), each of which is to be read in the light of the others. Some of these grounds are not such as to form the object of formal conclusions in the final paragraph of the Opinion; they nevertheless retain, in the view of the Court, all of their importance." The ICJ Nuclear Weapons Advisory Opinion, supra note 11, at ¶ 104.

32. Lord Advocate’s Reference No. 1 of 2000, supra note 1, at ¶ 86; see also ¶ 93 which implied the existence of an apparently unprincipled relative standard whereby some uses of substantial nuclear weapons might be lawful and others unlawful based on unarticulated bases of distinction. Note that, unlike the ICJ, the High Court was in the position of addressing a specific weapons system, and one assumed to involve high yield strategic nuclear weapons, not low-yield tactical weapons of the type the ICJ found itself without sufficient facts to evaluate. See Id. at 86; The ICJ Nuclear Weapons Advisory Opinion, supra note 11, at ¶¶ 96-97.

33. The Krupp Trial (Trial of Alfred Felix Alwyn Krupp Von Bohlen und Halbach and Eleven Others), 10 LRTWC 139 (1949), quoted in United States Department of the Navy Annotated Supplement to the Commander’s Handbook on the Law of Naval Operations 5-6 n.5 (Naval Warfare Publication 9, 1987).

34. The ICJ Nuclear Weapons Advisory Opinion, supra note 11, at ¶42 (emphasis supplied).

35. Id. at ¶ 39.

36. Written Statement of the Government of the United Kingdom ¶ 3.44, at 40, available at http://www.icj-cij.org/icjwww/icases/iunan/iunan_ipleadings/iunan_ipleadings_199506_WriStats_ 17_UK.pdf (June 27, 2001).

37. Lord Murray, supra note 12. Lord Murray goes on to state: "It is arguable, however, that a deterrent nuclear threat against a nuclear rival is not a threat in that sense, for it is intended only to neutralise the potential nuclear threat of that opponent. There is something specious about this reasoning, as General Lee Butler discerns. Neutralisation demands balance and balance, parity. An inherent escalation of arms is built in. In the end it is hard to see what is the distinction between this and an overt arms race between competing aggressor nations."

Id.

38. See UK Strategic Defence Review White Paper ¶ 63 (1998), http://www.army.mod.uk/servingsoldier/ policy/strategy/sdr/wpconts.htm (June 27, 2001); UK Strategic Defence Review Supporting Essay Number Five, ¶ 12.

http://www.army.mod.uk/servingsoldier/policy/strategy/sdr/essay05.htm (June 27, 2001).

39. See The ICJ Nuclear Weapons Advisory Opinion, supra note 11, at ¶ 91.

40. See id. ¶ 95 and dispositif ¶¶

105(2)D & E. Indeed, the Greenock Sheriff noted that the Crown had offered no "indication" to the contrary. Sheriff Gimblett’s Report on the Greenock Trial for the LAR (21 Aug 2000) http://www.gn.apc.org/tp2000/greenock/largimb.html (May 23, 2001).

41. See Evidence Given by Professor Paul Rogers, Professor of Peace Studies at Bradford University, UK, on October 15 1999, at the trial of H.M. Advocate v. Zelter, Roder, and Moxley (Sheriff Court, Greenock Scotland 1999), appearing at http://www.gn.apc.org/tp2000/greenock/rogersgk.html (May 23, 2001); Trident II D-5 Fleet Ballistic Missile, Federation of American Scientists, Nov/Dec 1996 http://www.fas.org/nuke/guide/usa/slbm/d-5.htm

(May 29, 2001) Bulletin of the Atomic Scientists, British, French, and Chinese Nuclear Forces 1996 http://www.bullatomsci.org/issues/nukenotes/ nd96nukenote.html (May 29, 2001) (reporting on the Trident II, a.k.a. Trident D5, the UK’s current SLBM, Submarine Launched Ballistic Missile).

42. See UGM-133A "Trident II" D-5 http://home.netcom.com/ chadeast/missiles/ugm133a.html

(May 24, 2001) (noting the missiles’ top speed is approximately 15,000 miles per hour, or Mach 23, after its three rocket stages have burned out, a process that takes less than three minutes of rocket burning.)

43. See President William Clinton, quoted in Show Transcript: Military Leaders for the Abolition of Nuclear Weapons (Aug 17, 1997), at http://www.cdi.org/adm.1049/transcript.html (May 23, 2001); Bruce G. Blair, Harold A. Feiveson and Frank N. Von Hippel, Taking Nuclear Weapons Off Hair-Trigger Alert, Scientific American, at http://www.sciam.com/1197issue/1197vonhippel.html (May 23, 2001); Evidence Given by Professor Paul Rogers, supra note 41.

44. See Adm. Shanahan and Adm. Eberle, quoted in Military Leaders for the Abolition of Nuclear Weapons, supra note 43.

45. See Blair, Feiveson and Von Hippel, supra note 43.

46. Evidence Given by Professor Paul Rogers, supra note 41; Evidence Given by Professor Francis Boyle Professor of Law at the University of Illinois College of Law, on Oct. 1st 1999, at the trial of H.M. Advocate v. Zelter, Roder, and Moxley (Sheriff Court, Greenock Scot. 99), appearing at http://www.gn. apc.org/tp2000/greenock/boylegk.html (May 23, 2001).

47. See Evidence Given by Professor Paul Rogers, supra note 41; NATO’s Strategy Review: A Litmus Test for NATO-Russia Relations, Berlin Information Center for Transatlantic Security Research Note 97.5 December 1997 http://www.basicint.org/natostra.htm#NATO

(May 23, 2001).

48. See Evidence Given by Professor Paul Rogers, supra note 41; Evidence Given by Professor Francis Boyle, supra note 46.

49. See Evidence Given by Professor Paul Rogers,

supra note 41; Blair, Feiveson and Von Hippel, supra note 43.

50. See Defence of Angie Zelter, at Argyll & Bute District Court, Victoria Halls, Helensburgh, 22nd September 1998 http://www.gn.apc.org/tp2000/legal/dzelter.html (May 23, 2001).

51. See Evidence Given by Professor Paul Rogers, supra note 41, Blair, Feiveson and Von Hippel, supra note 43.

52. See Lord Advocate’s Reference No. 1 of 2000, supra note 1, at ¶¶ 97- 98. On the facts of the Zelter

case, evidence was presented that June 8, 1999, the time of the actions which were the subject of respondents’ arrest, was a time of considerable international unrest, crisis and concern, in light of wars in Iraq and Kosovo and Russian counterthreats of possibly using nuclear weapons. See, e.g., Greenock 1999 Joint Statement of ’Loch Goil Three,’ of Zelter, Roder and Moxley, available at http://www.gn.apc.org/tp2000/ greenock/goilstmt.html (May 31, 2001); Evidence Given by Rebecca Johnston, Greenock 1999, in H.M. Advocate v. Zelter, Roder and Moxley, on October 18, 1999, available at http://www.gn.apc.org/tp2000/ greenock/johnsgk.html (May 31, 2001) see also, Zelter quoting from her written statement at 10(5), in Lord Advocate’s Reference No. 1 of 2000, Transcript of Day Three, Wed. October 11, 2000 available at http://www. gn.apc.org/tp2000/lar/larday3.html; Report of Sheriff Gimblett to Lord Justice General et al, Justicial Office Lodged in 21 August 2000 p. 151 A-B available at http://www.gn.apc.org/tp2000/ greenock/largimb.html (May 31, 2001).

53. Copy on file with author.

54. Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis Powers and Charter of the International Military Tribunal, Aug. 8, 1945, art 6(b) Sept. 10, 1945, 59 Stat. 1544, 82 UNTS 279. See also The Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on 17 July 1998 (A/CONF.183/9 http://www.un.org/law/icc/statute/romefra.htm (May 31, 2001)), Part 2. Jurisdiction, Admissibility and Applicable Law Art. 8 War Crimes. The United Kingdom signed the Statute of the International Criminal Court on Nov. 30, 1998. http://www.un.org/law/icc/statute/status.htm (May 31, 2001).

55. Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis Powers and Charter of the International Military Tribunal, supra note 54, at art 6(a).

56. Id. at art. 6(c).

57. For an analysis of the principles of probability portraying the risk of actual use, whether intentional, misconceived, or accidental, that is implicit in the policy of deterrence over time, see Moxley, supra note 30, at 540-553.

58. Hans Kristensen, Targets of Opportunity: How Nuclear Planners Found New Targets for Old Weapons, Bulletin of Atomic Scientists, vol.55, no. 5, Sep./Oct. 1997, quoting US Strategic Command, Essentials of Post-Cold War Deterrence, [n.d., probably April 1995], at 3, 4 (partly declassified and released under the Freedom of Information Act). As expressed by Henry Kissinger: "The dilemma never resolved [by the doctrine of assured destruction] was psychological. It was all very well to threaten mutual suicide for purposes of deterrence, particularly in case of a direct threat to national survival. But no President could make such a threat credible except by constructing a diplomacy that suggested a high irrationality - and that in turn was precluded by our political system, which requires us to project an image of calculability and moderation." Henry Kissinger, White House years 215-220, 216 (Little, Brown 1979).

Charles J. Moxley, Jr. is author of "Nuclear Weapons and International Law in the Post-Cold War World" (Austin & Winfield, Lanham, Maryland 2000). Moxley is a member of the board of the Lawyers’ Committee for Nuclear Policy (LCNP) and a former board member of the Lawyers Alliance for World Security (LAWS). The author acknowledges and thanks John Burroughs for his insightful comments on a draft of this article and Brian McBreen for his assistance in researching the article and reviewing the extensive record of the case.

© 2001 The Acronym Institute.

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