After considering the consequences of using nuclear weapons the Tribunal concluded that they can never be used lawfully. More details of the conclusions are given at the end of this Chapter, and in the Judgment.
However, can they nevertheless exist as lawful weapons - weapons which it is lawful to possess but never to use? The answer to this question depends upon the absolute accuracy of the assertions that they will never be used, and that there exists no intention to use them under any circumstances.
The military, moral and legal justification for the existence of nuclear weapons is the same - the so-called "doctrine of deterrence". It is said that it is their very destructiveness which will deter anyone from ever using them12. Not only that, but also it will deter anyone from serious acts of aggression against any state which possesses nuclear weapons. Accordingly, it is said that nuclear weapons have kept the peace for 40 years. 40 years is a very short time in the history of the world - it is necessary to consider the long term future of this planet.
The paradox within the so-called doctrine of deterrence is that, while its intention is to avoid the use of nuclear weapons by means of a threat, the effectiveness of the threat depends entirely on a real intention to use them. As the witness Dan Smith put it: "The commitment to use nuclear weapons, though conditional, must. be unambiguously credible and irrevocable". Thus, in order to deter, the threat to use must be perceived by one's opponent as real and not mere bluff. Not only is this a theoretical strategy of high risk, but the real manifestations of nuclear credibility have led to a dangerously unstable military situation.
The public imagination may believe that nuclear war means a senior politician, after mature and reasoned consideration, pressing a button launching slow inter-continental ballistic missiles on their way across the world. This is not the reality of modern nuclear technology and structures. Vast numbers of highly accurate weapons are deployed in the field ready to destroy entire societies within minutes. In the words of Professor Boyle: "What we have here today is the gun out of the pocket, pointed at the other fellow"s head, and a firing mechanism is cocked and ready to pull).
The need to persuade the opponent of the credibility of one's willingness to strike hard and fast has led to actual weaponry and structures which are meant to and do reflect that willingness. Thus, of necessity, military personnel have had to be conditioned and trained to be willing to use nuclear weapons. In a war alert, the chain of nuclear command devolves from the politician to the officer in the field. Frequently in the case of so-called tactical nuclear weapons, this means soldiers below the rank of major; in the case of submarines, it means the submarine commander. There are two reasons for this devolution of command. Firstly, communications systems, based for example on vulnerable satellite and radio facilities, cannot be relied upon to convey commands to the field. Secondly because of the speed with which a nuclear strike can be delivered, there is not time to relay orders down the hierarchy of command. A further worrisome technological development is that of "launch on warning". This is a virtually automatic launch condition where once incoming missiles are detected a computer may give the order to fire. Thus, in time of a world crisis, which is bound to arise sooner or later, politicians may make the decision in principle that nuclear weapons may be used if necessary. The actual decision whether or not to use them will then have to be taken by military personnel in the field; personnel who are willing to use them and who believe that the opponent will use them. The entire history of warfare is riddled with errors of judgment and mistaken decisions made under stress. What is unique about the present situation is that decisions will have to be made within minutes which, if wrong, could escalate a nuclear exchange and destroy us all.
The USSR has sought agreement upon a treaty of no first use nuclear weapons. It was noted with dismay that NATO finds itself unable to agree to such a commitment. Further, the overall problem has been aggravated by the NATO strategy of "flexible response" first adumbrated in 1967. "Flexible response" allows for three options:
The idea of a limited nuclear exchange is dangerous nonsense. Professor Pentz represented that if we cannot avoid the start of a nuclear exchange then we have little hope of stopping or limiting one that has started. More to the point, however, the uncertainty inherent in NATO's declared policy to use nuclear weapons first, wholly undermines the balance of power. One argument in support of "flexible response" is that, because the USSR do not know at what point NATO would introduce nuclear weapons into a conflict, they would be less likely to risk any conflict at all. On the contrary, evidence suggested that it provides an inducement for the USSR to use nuclear weapons themselves. The Soviet witness, Professor Vlasikhin in cross-examination was adamant that the USSR would only use nuclear weapons if attacked with nuclear weapons. Other witnesses considered this to be an optimistic position on his part.
The USSR is faced with large numbers of missiles of phenomenal speed and accuracy. They can "decapitate" Soviet command positions and structures and destroy Soviet missile sites within minutes of launch. If the USSR does not launch its missiles before they are hit, it will have few left on land to launch. The difficulty facing the USSR is that there are no reliable radar systems for determining with absolute certainty whether one is under attack. Certainly no system can decide if NATO is about to attack. It follows, therefore, that in a war crisis, the USSR has to decide within minutes what NATO is about to do or is actually doing. In the face of NATO's commitment to first use, some witnesses did not accept Professor Vlasikhin's view that the USSR would wait and see -it cannot afford to. Similarly, Western Europe is faced with the nuclear weapons deployed by the Soviet Union.
The development of the strategic defence initiative (SDI) as a further dangerous ingredient in the overall equation. Robert Aldridge in his written paper described SDI as consisting of layered defence systems of interceptor missiles, electromagnetic guns, high energy lasers of various types, neutral particle beams and sensor systems. The claim underlying the development of SDI is that it could lead to an invulnerable defensive shield. If one side or the other were able to develop such a shield, it follows that they could start and finish a nuclear war with no fear of retaliation. The Tribunal however, does not accept the ability of either side to achieve such invulnerability in its defences. A more likely consequence is that such a system would simply reduce the number of missiles reaching their target. The obvious and regrettable response to this is that one's opponent is likely to increase the number of missiles deployed. One aspect of SDI that is, perhaps, achievable is its anti-satellite capability. This again reduces the ability to manage a war crisis and reinforce the need to devolve command to an even lower level, thereby increasing instability.
12 See, for example, the quotation from a British Foreign Office letter to this Tribunal, shown in Section 2.1.