The question of whether mere possession of nuclear weapons is unlawful under international law is of great significance, and presents more complexities for jurisprudence than the use of nuclear weapons.
Professor Griffith presented a very well constructed argument for its unlawfulness, based upon the unlawfulness of use of these weapons and the Judgment of the Nuremberg Tribunal.
Nuremberg Charter Article 6(a) defines the term "crime against peace", as "the planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties or agreements or assurances or participation in a common plan or conspiracy, for the accomplishment of any of the foregoing".
Nuremberg Charter Article 6(b) defines the term "War Crimes" to include murder, ill-treatment or deportation to slave labour 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.
Nuremberg Charter Article 6(c) defines the term "Crimes against Humanity" to include "murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population...".
Article 6 also provides that leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit crimes against peace, crimes against humanity and war crimes are responsible for all acts performed by any persons in execution of such plan.
Nuremberg Charter Article 7 demonstrates the applicability of the "act of state defence" to those who have committed such heinous crimes, by making it clear that their official position "shall not be considered as freeing them from responsibility or mitigating punishment".
Nuremberg Charter Article 8 also provides that, although an individual acted pursuant to an order of his government or of a superior that fact should.not free the individual from responsibility but may be considered in mitigation of punishment if justice so requires.
Having stated the relevant Articles it is apparent that on the assumption that use of nuclear weapons is unlawful, the planning and preparation in breach of such treaties is also unlawful.
For this aspect of the question of unlawfulness, it is irrelevant whether there is or not an "intention to use" the weapons.
When one is considering the lawfulness of the possession of nuclear weapons one is not considering their abstract existence. One is considering a possession of weapons whose power, speed, accuracy, deployment and targeting taken together make it necessary for the protagonists in a potential crisis to take the nuclear initiative. In the case of the West, one is considering a declared policy to take that initiative, whether or not they are threatened with nuclear attack. The ability to manage a nuclear crisis has been reduced rather than enhanced by the development of technology. The risk of accidental or ill-judged nuclear exchange is becoming a certainty. One assesses the possession of nuclear weapons on the basis that it means possession combined with a willingness to use under certain circumstances, accidental or deliberate.
All legal systems endeavour not merely to punish crime but also to prevent it. Obviously, it is a rather ineffectual .system which can only deal with crime once its effects have been felt. Accordingly, in all criminal jurisdictions intentional preparation to commit crime is itself a crime. In common law systems, one has the example of conspiracy, incitement and attempt. A particularly pertinent example from English law is the offence of possession of an offensive weapon - it is a crime to carry with one any weapon with an intention to cause injury, whether or not the weapon is to be used only in self defence.
The laws of war are no exception. Thus, it is repeated that Article 6(a) of the Nuremberg Charter defines the term "crime against peace" as "the planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties or agreements or assurances or participation in a common plan or conspiracy for the accomplishment of any of the foregoing". As stated above, the Article goes on to provide that leaders, organizers, instigators and accomplices participating in the preparation or execution of a common plan or conspiracy to commit crimes against peace, crimes against humanity and war crimes are responsible for all acts performed by any persons in execution of such a plan. Articles 7 and 8 exclude as legal defences claims that a state has been acting in its own defence or that an individual has been following superior orders. The point is a simple one: if the consequences of the intended actions are themselves illegal, then preparation to inflict such consequences is also illegal. Whatever their disclaimers as to the use of nuclear weapons, the nuclear weapons states are expressly and by implication planning and preparing unlawful actions - the infliction of indiscriminate destruction. The development, deployment and targeting of nuclear weapons have no other rational interpretation.
Several witnesses have dismissed the idea that nuclear weapons will never be used. Accordingly, they also dismiss any argument that what would otherwise be unlawful preparations are not so because the preparations will never in fact, result in the use of nuclear weapons. On the contrary, they believe the exact opposite - that it is those very preparations which will inevitably lead to use.
Several witnesses also dismiss the alternative argument put forward by the nuclear weapons states based upon the right of self-defence contained in Article 51 of the United Nations Charter. In other words, that they are entitled under the Charter to use or at least to prepare to use nuclear weapons in legitimate self-defence. It is no answer under the Charter, nor under any legal system that we know of, to say that one is merely preparing to act in self- defence where the consequences of such actions are so wholly unreasonable. It is dishonest and perverse to suggest that the unlimited and indiscriminate damage which would result from a nuclear exchange can ever be described as reasonable self-defence. The proposition offends against the entire concept of reason.
The contradictions inherent in the postures of the nuclear weapon states are thrown into clear relief, for example, in the United States' manuals for military instruction (discussed in more detail elsewhere in this document). The manuals assert the lawfulness of using nuclear weapons. On the other hand, they also expressly provide "Conspiracy, direct incitement, and attempts to commit as well as complicity in the commission of crimes against peace, crimes against humanity and war crimes are punishable".
The Nuremberg Charter Articles only mention planning and preparation. If one plans, one has an intention to act under certain circumstances, and planning with nuclear weaponry and warfare in mind is far more than an abstract idea. The war plans are developed with considerable detail; they are also adopted. This involves systems being set up for the use of the weapons and they are actually used in military manoeuvres, which test the plans to ensure they actually work. This is therefore a high level of planning and must be against international law. The possibilities and dangers of accidental use of nuclear weapons also constitute an additional dimension of recklessness in the planning and deployment processes. Such recklessness would be considered unlawful under most legal jurisdictions of which the relevant witnesses were aware.
Professor Griffith stated that it makes no difference that both superpowers advance the same argument for possession, that is, "I do not personally intend to wage a war" since the stockpile of weapons is still present. Thus it is within the ambit of the Nuremberg Articles' "planning and preparation" and thus against international law.
The intention to use nuclear weapons first was seen as a more serious intent by some witnesses. The Tribunal take the view that it is a more serious breach of the Nuremberg Articles to plan, prepare and deploy the capability for first use of nuclear weapons.
Another key question to consider is whether the resorting to nuclear weapons in the face of a conventional attack would be in itself illegal.
Acts done by way of reprisals must not be excessive, are required to bear a reasonable relationship to the degree of violation, otherwise they will be punishable as war crimes.
It is a moot point whether the doctrine of reprisals may not be properly extended to cover nuclear response to large scale conventional attack, but the principles of discrimination, proportionality and so on still apply.
It can also be argued that the development and numerical increase in nuclear weaponry by the nuclear states, combined with no effective negotiations in good faith, are in breach of the 1968 Treaty on the Non-Proliferation of Nuclear Weapons, by failing to honour the undertaking to negotiate in good faith, and by at least indirectly encouraging or inducing some non-nuclear states to acquire a nuclear weapons capability.
Professor Boyle held that the question of the lawfulness of states even to possess nuclear weapons is itself a somewhat speculative and misdirected question, if not outrightly misleading. He claimed that the question may obfuscate the fact that today's acknowledged nuclear weapons states do not simply possess nuclear weapons. Rather, they have actively deployed nuclear weapons in enormous numbers and varieties by attaching them to delivery vehicles that are interconnected with sophisticated command, control communication and intelligence networks. Such nuclear weapons are ready for almost instantaneous launch upon immediate notice. Hence the only meaningful question for him concerns the legality of modern weapons systems as they are currently deployed and programmed for use. He suggested that if the nuclear weapons states had actually kept all their nuclear devices stored in warehouses where they were separated from their respective delivery vehicles, it might be pertinent to answer the question whether or not such mere possession of nuclear weapons was legal under international law. Historically mere possession has not been the case. The nuclear weapons systems maintained by all the world's nuclear weapons states, and especially by the two superpowers, are far beyond this stage of mere possession, and have been at the point of deployment and preparation for immediate use in a thermonuclear war for quite some time. He reminded the Tribunal that under the Nuremberg Principles, such planning, preparation and conspiracy to commit crimes against peace, crimes against humanity, war crimes and genocide, inter alia, constitute international crimes in their own right.
The Tribunal feels that such defensive escalation goes beyond the level of intensity or scope permitted by the rules of target discrimination and proportionality.
The Tribunal concludes that the possession of nuclear weapons and planning of a nuclear war are in breach of Articles 6 and 6(a) of the Nuremberg Charter and the actual use of a nuclear device in all but the most remote location will be in breach of Articles 6 (b) and 6 (c). An individual or organization agreeing to be part of a system which leads to the use of nuclear weapons is also in breach of the relevant Nuremberg Principles.
Following Article 8 people who obey orders may be found guilty. The Nuremberg Judgment affirms the principle that one is obliged to impede illegal action designed towards such heinous crimes, to the extent that one is able. So under such circumstances a moral choice exists whether to follow orders or not, be they civilian or military.
Indeed the likely consequences of nuclear war are admitted in terms by the USA and USSR in the ABM Treaty (and repeated in the Treaty on Limitation of Strategic Offensive Arms, 1979 - unratified) where they admit ...nuclear war would have devastating consequences for all mankind. It is difficult to imagine such a blatant admission accompanied by continuing policies, developments and deployments which are such an affront to the conscience of mankind, and constitute ongoing aggravated Crimes against Humanity. It is entirely within the power of each and every nuclear power to cease such profound unlawfulness forthwith. This admission has considerable legal significance.
The General Principles of customary international law create "universality" of jurisdiction for the prosecution and punishment of those alleged to have committed heinous crimes and found guilty. All government officials and members of military forces who might order or participate in a nuclear attack upon population centres could lawfully be tried by any government of the world community that subsequently obtained control over them for the above-mentioned crimes.
The possession and deployment of nuclear weapons indicates a breach or intention to breach the Nuremberg Charter and all the customary norms of warfare.
There are additional reasons to declare the unlawfulness of possession. Mere possession and deployment under specified circumstances is already capable of being clear violations of the Antarctic Treaty 1959, the Outer Space Treaty 1967, the Nuclear Weapons Sea-Bed and Ocean Floor Treaty 1971, and the Moon Treaty 1979. These all place restrictions on the possible theatres and regions of any possible nuclear war, and on the deployment of nuclear weapons systems. The failure to have concluded a treaty confirming the unlawfulness of possession can be considered a breach of the Non-Proliferation Treaty 1968, and the failure on the part of some nuclear powers to even start negotiations seriously is a breach of that Treaty. Possession is in clear breach of the Geneva Protocol I 1977.
The requirement to conclude a treaty prohibiting nuclear weapons (and other weapons of mass destruction) is expressed in various United Nations General Assembly Resolutions, the Non-Proliferation Treaty, reconfirmed in the Bacteriological (Biological) and Toxic Weapons Treaty 1971 which states "Determined to act with a view to achieving effective progress towards general and complete disarmament, including the prohibition and elimination of all types of weapons of mass destruction...", the Nuclear Weapons, Sea-Bed and Ocean Floor Treaty which states "...this Treaty constitutes a step towards a treaty on general and complete disarmament...", the ABM Treaty is quoted above, the Treaty on Limitation of Underground Nuclear Weapon Tests 1974 states "Declaring their intention to achieve at the earliest possible date ... nuclear disarmament ...".
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 states:
" Recalling that every State has the duty, in conformity with the Charter of the United Nations, to refrain in its international relations from the threat or use of force against the sovereignty, territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations.
Further recalling the general principle of the protection of the civilian population against the effects of hostilities,
Basing themselves on the principle of international law that the right of the parties to an armed conflict to choose methods or means of warfare is not unlimited, and on the principle that prohibits the employment in armed conflicts of weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering,
Also recalling that it is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment,
Confirming their determination that in cases not covered by this Convention and its annexed Protocols or by other international agreements, the civilian population and the combatants shall at all times remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience".
Finally, it is instructive to ask the question "could nuclear powers enter into a binding Treaty for the purpose of declaring the possession or use of nuclear weapons to be lawful?". If such a treaty was attempted it would undoubtedly fall foul of Article 53 of the Vienna Convention on the Law of Treaties16 (see Section 5.1 for the relevant part of this Article).
Hence there is an irresistible conclusion that the possession, deployment and intention to use, of nuclear weapons are profoundly unlawful in existing (and probably future) international law.
16 United Nations Convention on the Law of Treaties, 1969.