Letter dated 15 June 1995 from counsel appointedby Nauru,
together with Written Comments of the
Government of Nauru (in two parts)
-
Wty othUs ey
aStaofNuclear
WeapoinArmeCdonfiict Régistrar
Lnrernaiional Court oi Justice
Peace Palace
2517 KJ Tne Hague
The Xetherlands
Dear Registrar,
Enciosed please iind two Responses to Submissions of Other States by
Lie ReFublic of Xaurii Li the case conceming TheLegai;in/of the UseofNuclear
Weaponsiry Statesin P.moli Conqict and one Mernorial inthe case conceming
Lie Lega!ityojthe UstandThreatof UseofNuc!carWeapons.
1understand that the Court has set the date of 30 October as the date
for khebeginnig of oral hearigs in the two cases.1would like permission to
use a number of witnesses. in the case concemg Tho Lega1;ityof the Useof
'iuc!egrWeapons by a StateinAmed Conjic: iivouid Lketo put on the stznd a
Dr. Frank Banaby who is a nuclear physicis: oi re?u:e. 1would aiso like to
Dut on the stand Lhe Mayors of Hiroshima and Xagasaki. in the case
concering the iegniiiy ofiiie Esouni ThreOJL'senjXilciezr Weapons 1wouid
lihe to p!ace on the stand ~Is. Hiida Lin:, iorrner blinster of Health of
Varsuatu, Ms. Ligon Ehiiang who h2s experiencei Lieefiects of U.S. nuclear
::sis during Oueraiion Bravo or some other wornan kon chePacific who nas
exaerienced those effects and Ms. Claudia Peterson who has expenenced the
èffectsoi nuclea; tsetinthe Unireastates.REPUBLICOF NAURU
RESPONSE TO SUBMISSIONS OF
OTHER STATES
Very few of the submissions presented by Statesin the case conceming
the Useof NirclearWeapons bya State in Anned Confliaddress the legal
arguments that we have offered to show that the use of nuclear weapons is
unlawful but the submissions make other points. One point made about the
legality of the use of nuclear weapons is that the issue is abstract and
theoretical.isdifficultto seehow the question can be considered abstract. It
is reaiiyuite simple. The General Assembly has asked the question "is the
use or threat of use ofnudear weapons in any circumstances unlawful"? The
World Health Assemblyhas asked "isthe use ofnudear weapons by a Statein
armed confiictnlawful"? Even assuming that the question is abstract, in the
Reply of the Court to the Request for an Advisory Opinion inStatilsof
EasteniCareliCase,l the Permanent Court ofInternationalJustice said:
The question put to the Court is not one of abstractlaw,
but concems directiy the main point ofthe controversy
between Fiand and Russia....
As a result the Court refused to give an advisory opinion in that case.
Clearly if the Court refused to give an advisory opinion because the question
was notsufficiently abstract, then it is appropriate to give advisory opinions
when an abstract question oflaw is asked. Perhaps one reason for feelingthat
the question is abstract is the difficulty of determining who has standing to
request the opinion. But this is a request for an advisory opinion and
questions of standing are irrelevant. Perhaps the argument can best be
[[192 3C.I.J.Rep.Ser8,No.5,p.7 atpp. 28-29.understood by looking at the written statement of the Government of
Fdand:
.the legality ofthe use ofnudear weapons can only
be determined in respect ofthe circumstances of the
case,.it foliows that in the absence of a concrete
factualsituation,the courtwould itselfbe required to
entertainvarious hypotheses about situations inwhich
nudear arms might conceivablybe used. That isto Say,
the Courtwould be required to speculate with a very
largenumber ofpotential situations, induding,
for example, situations of first useand counter-use,
various types ofiimited useand practices oftargeting, the
Court would be required to analyze different types of :
nudear weapons and entertainhypotheses about
the factual consequences of their use. AU thiswould
require analyzing extremelycomplex and controversial
pieces oftechnical,strategic and scientificinformation.
It should be pointed out that the difficulty foreseen by the Goverment
of Finland can arise only if the Court decideç that not al1uses of nuclear
weapons are unlawful. We submit that al1 uses and threatç of use are
unlawful and that the Court isnot required to distinguish among them
Secondly, the nudear weapons owning Statesimagine that the majority
of Stateshave consented to the legality of the use ofnudear weapons because
of their participation in such treaties as the Non-Proliferation Treaty3. It
should be pointed out that the Non-Proliferation Treaty is not reaily relevant
to this case. The Non-Proliferation Treaty appears to validate the possession
of nuclear weapons. Even thugh we believe that the possession of nuclear
weapons is a relevant issue, it is not a relevant issue in this case. This case is
about the legality oftheIlse of such weapons. Secondlyit is wrong to imagine
that the majority of Statessupport the legality of the use and threat of use of
2Page4.
729U.N.T.S.161(1968).nudear weapons. States are aware that the existence of nuclear weapons is a
fact of life.Given that they are a fact of Me,whether they are lawfd or not, it
is essential that their use, manufacture, possession and testing be regulated
and controlled. Therefore States have participated in negotiations and
agreements to regulate and control their use, manufacture, possession and
testing. But the position of most States can be gleaned by the fact that a
majority of Stateshave voted in the United Nations General Assembly and the
World Health Assembly to request these advisory opinions and a review of
the submissions made to this Court in thi sase wili show that the majority of
States oppose the legaiity ofthe use ofnudear weapons.
A number of States have expressed a fear that a decision in this case
wiii somehow hinder negotiations on the extension of the Non-Proliferation
Treaty, on disarmament and on a test ban treaty. It is difficulty to see how
negotiations wiii be hindered if this Court decides that the use and threat of
use of nuclear weapons is uniawful. Negotiations can only be enhanced if
they are carried out in the knowledge that the use and threat of use of these
weapons is uniawful. It is a short logical step from a finding that the use and
threat of use of these weapons is unlawful to a belief that possession,
manufacture and testing ofthese weapons is thereforepointless.
The only argument that we made that has been addressed is the
argument that the use of nuclear weapons contravenescustomary and treaty
prohibitions against the use ofpoisonous weapons. The argument seem to be
that nudear weapons are not specifically poisonous weapons. They kill by
other means as well. In the view ofthe United States:4
Thisprohibition was estabiished with specificreference to
projectilesthat carry poison into thebody of the victim. It was
4 Written Statement ofthe Govemment of the United States ofAmenca, p. 27. not intended to apply, and has not been appiied, to weapons
that are designed to injure orause'desmction by other means,
eventhough they may also aeate toxicbyproducts. For
example, the prohibition on poisonweapons does not prohibit
conventional explosives or incendiaries, eventhough they may
produce dangerous fumes. By thesame token, it does not
prohibit nudear weapons,which are designedto injure or
causedestructionby means other thanpoisoning of the victim,
eventhough nudear explosionsmay also aeate toxic
radioactive byproducts.
The fundamental flaw in this reasoningisthat it equatesradiation with
the pureiy incidental toxic fumes of incendiaries and explosives. Nuclear
weapons killin three ways, blast, heat and radiation5 .Of these three ways,
radiation is the most persistent killer. Victims of blast and heat are usualiy
killed in the first seconds of the explosion Victimsofradiationmay take days,
months, years, even decades to die. The radiation effects of nuclear weapons
which consist of the transmission of gamma rays, neutrons, beta partides and
some alpha partides, are very similar to the effects produced by chemical
weapons as opposed to conventional high explosive weapons. In 1979-80,
thirty-five years after the bombing, 2,279 names were added to the list of
deaths ofic~lly attributed to the delayed radiation effects on victims of the
"little boy" bomb that was dropped on Hiroshima. In 1983the Est of deaths
from radiation in Hiroshima totalied 97,964.
A study prepared by the United States Department of Defense and the
United States Department of Energy had this to Sayabout nudear weapons:
..there are several basic differencesbetween nudear
and high explosive weapons. ..Fourth, the nudear
explosion is accompanied by highly penetraüng and
Rumble, ThePoliticsofNuclear Defolce (1985)pp. 130-7;EffectsofNuclear
Weaponson Healthand Health Semices (World Health Organisation 2d ed.
1987) pp 9,15: Tone (ed.) ,TheEffects ofNuuclearWeapons ( 3d ed. Prepared
and published by the United States Defence Department 1977). harmful invisible rayscaiied the "initial nudear
radiation."Finaiiy, the substances remaining after
a nudear explosion are radioactive, emitting
similar radiationover an extended penod of tirne.
This is known as the "residual nudear radiation"
or "residuairadioactivity".
Figure 1.02is labelled "Effectsof a nudear explosion". The effects listed
are "blast and shock, "thermal radiation", "initial nuclear radiation" and
"residual nudear radiation". 6
Concerning the harmfui effects ofradiation,the book says :7
The had effects ofnudear radiation appear
to be caused by the ionization(and excitation) produced
in the cellscomposing livingtissue. Asa result of
ionization, some of the constituents, which areessential
to the normal functioning of the ceiis, are altered or
destroyed. In addition, the products formed mayactas
poisons.. mong the observed consequences ofthe action
ofionizing radiations on cells are breaking of the
ciuomosomes, swelling of the nudeus and of the
entire cell,increase in viscosity of the ceii fluid, increased
permeability of the ceii membrane, and destruction
of cells. (Emphasis added)
In total the book devotes 136pages to "initialnuclear radiation" and
"residualradiation and fallout", evidence that at least two Departments of the
United States Government consider the radiation effects ofnuclear explosions
to be more than incidental effects.
Glasstone and Dolan (eds.), TheEffects of NuclearWeapons (3d ed. United
States Dapartment of Defense and the United States Department of Energy
isn) pp.1-3.
Ibid. atp.575. The fact is that most nuclear weapons are deployed in part to utilise
the destructive effects of radiation andfaliout. The neubon bomb is a
weapon specifically designed to kill by radiation so that human beings are
kilied whiiebuildings and otherstructuresare left standing.
There are five main arguments supporting the legality of the use of
nudear weapons. The submissions do not make al1those arguments. But they
may be made subsequently. The arguments are:
(a) There isno specific treaty making the use of nudear weapons
unlawfui.
(b)Nuclear weapons are justified by military necessity.
(c)Nuclear weapons may lawfully be used in retaliation.
(d)Nuclear weapons may lawfully be used in self-defence.
(e)It is possible to invent a scenario where the use of nudear weapons
would be lawful.
We wiil consider these arguments one at a the.
(a)There is no treaty specifically banning the use of nuclearweapons
The answer to the argument that there is no specifictreaty banning the
use of nuclear weapons and that therefore they must be legal isfound inthe
Brownlie, "Some Legal Aspects of the Use of Nuclear Weapons" (1965)14
ICLQ 437,445.Martens clause of the Preamble to the Nth Hague Convention of 1907
Conceming the Laws and Customs of War on Land. Martens was a leading
member of the Russian delegation to the Hague Peace conference. The clause
says:
Until a more suitable code ofthe laws ofwar
can be drawn up, the high coniracting parties deem
itexpedient to deciare kt,in casesnot covered by the
rdes adopted by them, the inhabitants and
thebeiligerents remain under the protection and
governance ofthe general prinaples of the law ofnations,
denved from the usages established among avilised
peoples, from the laws ofhumanity, and fromthe
dictates ofthe public conscience.
This telis us that a complete answer to the legaiity of nuclear weapons
cannot be had by a study of treaty law alone. A specific treaty rde is not
required. If a weapon or its use violates the dictates of the public conscience
and the laws of humanity, then it is certainly a violation of the Hague
Convention.
We might Say that the United Nations General Assembly
Resolution is redundant when it asks the Court to consider whether the use
and threat to use nuclear weapons is unlawful. Threatening is an active and
destructive use ofnudear weapons. If 1hold agun to someone'shead and Say
"if you don't giveme aliyour money 1 will blow your braim out",isthere any
doubt that 1am using that guneven if 1do not actualiy pull the trigger?
There is a more sophisticated version of the argument that thereisno
specific treaty banning nuclear weapons and that version is that there is
neither a specific treaty nor a specific rde of customary international law.
International law recog~ses that legal effect stems from more than treaties.
Article 38 (1) of the Statute of the international Court ofJustice is frequentlyrecognised as an authoritative statement of the sources of international law. It
says:
TheCourt, whose function isto deùde in accordance with
internationallaw such disputes as are submitted to it shali
~PP~Y:
a. international conventions, whether general or particular,
establishg rules expressly recognised by the contesting
States;
b. international wtom, as evidence of a general practice
accepted as law;
c. the general principles oflaw recognised bycivilised nations;
d. subject to the provisions ofArticle 59,judicial decisions and
theteachings of the most highly qualified publickts of the
various nations, as subsidiary means for the determination
ofdes oflaw.
The Article contains three specificsources of law as outlined in (a)-(c).
It also mentions in (d) two "subsidiary"law determining agencies. The three
prime sources of law are treaty, custom and general principles of law.
Therefore ifwe can Say that there are rules emanating from any of those
sources which outlaw nuclear weapons, then we can Say that the use of
nuclearweapons is unlawful.
Let us look at the first source, keaties. In the firstplacewe do not need
a spellhc treaty outlawing nuclear weapons to make these weapons unlawfui.
If we find that they violate the terms of any existing treaty, then we may Say
that they are unlawful under that treaty. At the outse1thinkit isnecessary to
reject the notion that nuclear weapons are bamed by implication. If these
weapons are the type of weapons that do what the treaties do not aiiow
weapons to do, then we must Say that the weapons are outlawed by the
treaty.If the use of such weapons amounts to conduct that isprohibited by abeaty then we mut Say that the use of those weapons directiy contravenes
the treaty. in the course of our argument we have cited many existing
international treaties that outlaw the use of certain weapons in warfare. If
nuclear weapons are the sort of weapon that offends the terms of the aeaty
then we may Saythat nuclear weapons areoutiawed by that treaty. In the hst
place the use of nuclear weapons violates the United Nations Charter. It
violates the International Covenant on Civil and Political Rights and it
violates the international Covenant on Economic, Social and Cultural Rights.
Nuclear weapons are also offensive to the Dedaration of St. Petersburg of
1868, ïhe Hague Declaration on Asphyxiating Gases of July 29, 1899, the "
Geneva Gas Protocol of 1925, the Hague Regulations on Land Warfare of
1907,10 the Geneva Convention for the Ameiioration of the Condition of the
Wounded and Sickin Armed Forces in the Field of August 12,1949(the First
Geneva convention), the Geneva Convention for the Ameiioration of the
Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea of
August 12,1940 (the second Geneva Convention), the Geneva Convention
Relative to the Treatment of Prisoners of M'arof August 12, 1949(the third
Geneva Convention), the Geneva Convention Relative to the Protection of
Civilian Persons inTimes of War of August 12, 1949 (the fourth Geneva
Convention) and Geneva ProtocolI (1977).11 Arguably the use of nuclear
weapons is criminal. Article 6 of the Agreement for the Prosecution and
Cmnd. 3604(1930);94LNTS65(1927),
IoSupranote 11.
Protocol Additional to the Geneva Conventions of 12 August 1949, and
Relating to the protection ofVictimsof International Armed Confiicts adopted
at Geneva, June 8,1977, U.N. Doc. A/32/144 August 12,1977; 16 ILM 1391
(1977);Misc,No. 19;(Cmnd.6927)p.23.Punishment of the Major War Criminals of ,the European Axis 12 (The
NurembergCharter)provides:
...he following acts,or any of them, are crimes coming
within the jurisdiction of the [Nuremberg]Tribunal for
whichthere shallbe individual responsibility:
@) War crimes. Namely, violation of the laws and
customs ofwar. Suchviolations shaii indude, but not be
iimited to,murder, iii beatment .w.anton destruction of
cities,owns or viiiages, or devastation not justified by
military necessity.
(c)Crimesagainst humanity. Namely murder,
extermination ..and other inhumane acts committed
against any civilianpopulation .w.hether or not in
violation ofthe domestic law of the country where
perpekated.
On May 25, 1993,the United Nations Security Council established an
international tribunal to punish persons reçponsible for violation of
international law in the former Yugoslavia. Article 3 establishesjurisdiction
over the violation of the "laws and customs ofwar" which the artide describes
as including "but not lirnited ton:
(a)employment ofpoisonousweapons or otherweapons
calculated to cause unnecessary suffering;
@) wanton destruction of cities,towns or viiiages or
devastation not justified by military necessity;
(c)attack, or bombardment, by whatever means, of
undefended towns, viiiages, dwellings or buildings;
Nuclear weapons are poisonous and they are capable of causing
unnecessary suffering.They are capable of destroying cities, towns and
l2 Signed August 8,1945.39 A.J.I.L.Supp. 259(1945).viilages induding undefended towns, viilages, dwellings or buildings. Sowe
can see that the use ofnuclear weapons violates many prinaples of treaty law
and may is not oniy a war aime but ais0a crime against humanity.
As to customary international law, again we may Saythat there is no
specificrule ofcustomary law banning nudear weapons as such. But thi soes
not mean that nuclear weapons do not offend principles of customary
international law. Wehave already demonstrated the inconsistency ofthe use
of nuclear weapons with the Universal Dedaration of Human Rights. Ifwe
accept the idea that the Universal Dedaration has found its way into the '.
corpus of customary international law then here is one important set of
customs that the use of nudear weapons violates. But we have shown that
there are other mles of customary law which the use of nuclear weapons
offends. Clearly itsa violation of customary international law to use poisons
or other analogous substances. Thus even where a State is not a party to the
Geneva Gas Protocol it is nonetheless bound under customary international
law to refrain from using poisonous weapons and this would seem to include
weapons that emit radiation. It is also a violation of customary international
law to use weapons that cause unnecessary suffering and to use weapons that
cause severe damage to the environment. Furthermore it is probably a
violation of customary international law to use weapons that cause injury to
neutrai terntory.
Secondly, although Resolutions of the United Nations General
Assembly are not binding, as such, upon the Members of the United Nations,
some Resolutions, if they are passed with substantial majonties may be taken
to reflect the views ofStates as to what the law is;in other words they may be
taken as reflections of thopiniojuris of States. Hence they can assist us in
ascertaining the nature of customary international law. There are quite a fewResolutions of the General Assembly which hold that the use of nuclear
weapons isuniawful. One example isG.A. Res. 2936XXVIII,Nov. 29, 1970;
G.A.Res.1653(XVI),16 GAOR Supp. (No. 17)(1961)which isalso calied the
Declaration on the Prohibition of the Use of Nuclear and Thermonuclear
Weapons of November 24,1961. SeealsoResolution on the Non-use of Force
in International Relations and Permanent Prohibition of the Use of Nuclear
Weapons, G.A.Res.2936,U.N. GAOR20thSess.,Supp. No. 31, at 5,U.N. Doc.
A/8730 (1972); Resolution on the Non-use of Nudear Weapons and the
Prevention of Nudear Weapons, G.A.Res. 33/71B, 33U.N. GAOR,Supp. No.
45, at 48, U.N. Doc. A/33/45 (1978);Resolution on the Non-use of Nuclear
Weapons and Prevention of Nudear War, G.A.Res.34/83G, 34 U.N. GAOR,
Supp. No. 46, at 56,U.N. Doc.A/34/46 (1979);Resolution on the Non-use of
Nuclear Weapons and Prevention ofNudear War, G.A. Res.35/152D,35U.N.
GAOR,Supp. No. 48,at 69,U.N. Doc.A/35/48 (1980);Resolution on the Non-
use ofNudear Weapons and Prevention ofNudear War, G.A.Res.36/921,36
U.N. GAOR, Supp. No. 51, at 64, U.N. Doc. A/36/51 (1981); Resolution
37/100C Convention on the Prohibition of the Use of Nudear Weapons, U.N.
GAORSupp. No. 51at 83(1982);Resolution 38/75, Condemnation ofNuclear
War, U.N. GAOR,Supp. No. 47 at 69 (1963);Resolution 39/63H, Convention
on the Prohibition ofthe Use ofNuclear Weapons,U.N. GAOR,Supp. 57at 70
(1984); Resolution 40/51F, Convention on the Prohibition of the Use of
Nuclear Weapons, U.N. GAOR,40th Sess.,Supp. 53 at 90 (1985);Resolution
41/60F, Convention on the Prohibition of the Use of Nudear Weapons, U.N.
GAOR,41st Sess.;Supp. 53 at 85 (1986);Resolution 42/39C, Convention on
the Prohibition of the Use ofNuclear Weapons, U.N.AOR,42nd Sess.,Supp.
No. 49 at 81(1967);Resolution 43/76E, Convention on the Prohibition of the
Use of Nuclear Weapons, U.N. GAOR,43rd Sess.,Supp. No.49 at 90 (1988);
Resolution 44/117C, Convention of the Prohibition of the Use of Nudear
Weapons, U.N. GAOR 44th Sess., Supp. No. 49 at 80 (1989);Resolution45/59B, Convention on the Prohibition of the Use of Nuclear Weapons, U.N.
GAOR 45th Sess., Supp. No. 49 at 71 (1990);Resolution 46/37D, Convention
on the Prohibition of the Use of Nudear Weapons (1991),U.N. Doc. GA/S307
at 217;Resolution 47/53C, Convention on the Prohibition of the Use of
Nudear Weapons (1992)U.N. Doc. GA/8470 at 112(1993);Resolution 48/76B,
Convention on the prohibition of the Use of Nudear Weapons (1993),U.N.
Doc. GA/8637 at 124(1994).SeeAppendix Bof Memorial 1.
The Martens clause seems to require the application of general
principles of law. It speaks of the laws of hurnanityand the dictates ofpublic
conscience. General principles of law recognised by civilised nations would
therefore seem to embody the principles of humanity and the public
conscience. Inhumane weapons and weapons which offend the public
conscience are therefore prohibited.
Now we come to the two law-determining agencies. As for judicial
decisions, there areertainly no international decisionsyet that are relevant to
Our discussion. There is one important municipal case that requires
discussion. That case is the Shimodacase. The case was begun in May of 1955
when five individuals instituted legal action against the Japanese Government
to recover damages for injuries aliegedly sustained as a consequence of the
atomic bombings of Hiroshima and Nagasaki. On December 7, 1963 the
District Court ofTokyo delivered a lengthy decision.l3 The case is important
both for its third party decision-making genre, and for the fact that it appears
to be the oniy attempt by any court of law anywhere to wrestle with the legal
implications of nuclear warfare. The Court accepted the plaintiffs' argument
that the dropping of atomic bombs on Hiroshima and Nagasaki constituted a
13The decision has been translated into English and printed in the Japanese
annual; of International Law for 1964.It is digested in 58A.J.I.L.1016(1964).violation of internationallaw on the ground that the dropping of said bombs
not oniy constituted an indiscriminate bombardment of undefended aties far
beyond the requirements of destroying military objectiveswithin those cities,
but also violated the generalprinciple of international law (which it derived
from the specifictreaty limitations on the use ofpoisonous gas) that weapons
which give rise to "unnecessary ailmenu" to enemy personnel must not be
used. However the Court recognised that individuals have no standing under
international law. Consequently,there was no liability to the plahtiffs on the
part ofthe Govemment ofJapan.
With regard to publicists-There are many publicists who would argue
that theuseofnuclearweapons is unlawful for the reasons ated above and in
Nauru's Memorials nos. 1and 3. The attitude of publicists is summarised by
Meyrowiîz in his article "The Opinions of Legal Scholars on the Legal Status
of Nudear Weapons" l4Many legal scholars take the view that the use of
nuclear weapons is unlawful. A fairly complete list of them appears in
Memorial 1 at p. 66. Others are seduced by the argument that nuclear
weapons must be lawful in the absence of any treaty banning them
specifically.We have already demonstrated why we believe this argument to
be faliauous.
(b)Nuclear weapons are justified by military necessity
When we speak of miiitary necessity we must ask two questions. The
fust question is what is miiitary necessity? The second question is, what is
justified by it? Theobject of war is to hurt the enemy, to kill as many enemy
soldiers as possible and to convince the enemy that itisnot worthwhile to
continue their campaign. But international humanitarian law tells us thatthe
l424Stanford J.I.L.111 (1987-88).means of hurting the enemy are not unrestricted. Artide 22 of the Hague
Ruiessays:
The right ofbeiiigerents to adopt means ofinjuring
the enemy isnot unlimited.
ina tnal before a United States Military Tribunal called thHostages
Thl, the Tribunal said:
Miiitary necessity orexpediency do not justify
a violation ofpositivees. International Law is
prohibitive law.15
The right to adopt measures to injure the enemy is subject to
very dehite limitations and these limitations are speiied out by the principles
ofinternationalhumanitarian law. Saida former President of the international
Court ofJustice:
..it is submitied thifthe mere fact of defeat
were accepted as a legaljustificationfor ignoring
the des ofwarfare, the entireraisond'et~eofthe
laws ofwar wouid disappear, sincethe objectof every
war is the achievement ofvictory or success.Thus.
if, for the attainment of that objective,no des
whether customary or conventional canbe accepted,
ailwars wouid degenerate into wild savagery and
cruelty and the societyofnationswould revert to
the law ofthe jungle.ucha concept ofthe doctrine of
successwould wipe out the achievements ofhumanity
as enshrined in the Hague and Geneva Conventions
and usher in the worst experiencesof the Middle Ages.l6
One thing which the military is not permitted to do is to attempt to
convincethe enemy to surrender by terrorising the uvilian population. Article
22 ofthe Hague mles provides that:
l5Law Reportsof Truilsof WarCriminals ,ol.8,p.34at p. 66.
l6Singh, N.,NuclearWenpotla sndlntemationaL lnw (1959) p. 82. Aerial bombardment for the purpose of terrorising
the civiiianpopulation, ofdestroying or damaging
private property not ofa military character, or of
injuring non-combatants isprohibited.
Strategicnuclearweapons are instrumentsof terror against the civilian
population. Sowe can Saythat military necessity does not permit this use of
nuclearweapons.
The 1863 Lieber Code l7 spelis out the restrictions on the principle of
miiitary necessity:
Artide 14.Military necessity,as understoodby modem
civilizednations, consists ofthe necessity ofthose measures
which are indispensable for securing the ends ofwar,and
which are lawful according to the modem law and usages
ofwar.
Artide 15.Military necessity admits of ail directdestruction
oflifeorlimb of armed enemies, and otherpersons whose
destructionis incidentaily unavoidable.
Article 16.Military necessity does not admit of cruelty-
that is, theinfliction ofsuffering for the sake ofsuffering or
for revenge, nor ofmaiming or wounding except in fight, nor
of torture to exact confessions. Itdoes not admit ofthe use
ofpoison in any way, 18nor of the wanton devastation of
adistric...nd, in general miiitarynecessity does not indude
any actofhostility which makes the retum to peace
unnecessarily difficult.
17 For the text see Friedman, L., THE LAW OF WAR: A DOCUMENTARY
HISTORY(1971) p.158.
Note that this prohibition predates the 1925Geneva Gas Protocol. Military necessity consists in ali measures immediately indispensable
and proportionate to military objectives when taken on the decision of a
responsiblecommander.
A weapon, any weapon must be justified according to four basic
limitations regarding the purpose, nature and scope of permissible violence.
The first limitation concems the purpose of permissible violence. uiflicting
injury on the enemy as an end initself is not permitted. Violencemust have a
legitimate purpose if it is to be described as violence having "military
necessity". The second limitationis concemedwith the nature of permissible '
violence, and isparticularlythough not exdusively addressed to the weapons
ofwarfare. Use ofweapons which cause uuel sufferingor unavoidable death
may or may not be helpful to the party who would use them for the
achievement of an othenvise legitimate military end. Their use is, however,
forbidden under any urcumstances. The third limitation relates to the scope
of permissible violence. The rule here is that of proportionality. Only such
amount of violence is permissible as is reasonably proportionate to the
legitimate military objective sought to be achieved in the given military
operation. The fourth limitation concerns the objectives of permissible
violence.Thislimitation is particularly though not exdusively concemedwith
the protection ofcivilianlives and property.
The measures taken must not be contrary to the laws ofwar. There are
certain weapons and conduct which are prohibited even though they may
lead to military advantage. Among the weapons which are prohibited are
those which cause unnecessary or aggravated suffering, those which are
poisonous and those which are harmful to the environment. Resort to such
weapons is not permitted by military necessity. Prohibited conduct indudes
the use of such weapons.It has been the thrust of our argument that nuclearweapons cause unnecessary and aggravated suffering, create radiation w~hich
can be seen to havepoisonous effectsand are devastating to the environment.
Therefore the use ofsuch weapons cannot be justified by military necessiîy.
(c)Nuclearweapons may lawfully be used in retaliation
There isa heavy emotionalcontent to thisargument. It isthe argument
that was most strongly used to justify the use of atomic weapons against
Japan. Because the Japanese military was contemptuous of the laws of war,
the argument goes, the use of the atomic bomb was a justified punishment. A :
string ofJapanese atrocities, induding the rape of Nanking, the treatment of
aiiied pnsoners of war and even the treachery of the attack on Pearl Harbour
are cited as justification for the use of the atomic bomb. But the facts that
hundreds of thousands of people; men, women and children were kiiied by
the atomic bomb and most of the victims had nothing to do with the
treacherous and brutal actions of their government. Why did they deserve to
die because of the actions of someone else? The fact is that the Emperor
Hirohito and the Prime Minister Tojo were not even in Hiroshima and
Nagasaki when the Atomic bomb was dropped. They survived. Perhaps their
punishment was the defeat of Japan. But they did not suffer the grusome
injuries and deaths that thousands of ordinary, innocent people suffered.
Secondly, itis a fundamental principle of international humanitarian
law that a violation does not juste a counte~iolation. Article 46 of the
Geneva Convention for the Amelioration of the Condition of the Wounded
and Sick in Armed Forces in the Field of August 12,1949 ( the FirstGeneva
convention) says:
Reprisais against the wounded, sick,personnel,buildings or equipment protected by the Convention are prohibited.
The same prohibition of reprisals appears in Atticle 47 of the Geneva
Convention for the Amelioration of the Wounded, Sick and Shipwrecked
Members of the Armed Forces at Sea of August 12,1940 (the second Geneva
Convention), Article13 and Article 33 of the Geneva Convention Relative to
the Protection of Civilian Persons inTimes of War of August 12, 1949(the
fourth Geneva Convention). The prohibition againstreprisais also appears in
Article 20 of Protocol 1to the Geneva Conventions. Articles 51-56 of that
Protocol also have provisions prohibiting reprisals. So it is clear that
retaliation or reprisa1with nuclearweaponsisprohibited by the laws ofwar.
(d) Nuclearweapons may lawfully be used in self-defence
Article51of theUnited Nations Charters says:
Nothing in the present Charter shallimpair the inherent
right ofindividual or collectiveself-defenceif an armed
attack occurs against a Member ofthe United Natiom... .
Given this approval of self-defence expressid in the Charter many
States wiil attempt to daim that the use of nuclear weaponç is lawful if they
are used in self-defence.Buta slightly more carefulreading isrequired. It says
"nothing in the present Charter". This means that the Charter prohibitions
against the use offorcedo not apply where the Member is exercising the right
of self-defence.It does not and cannot mean that no des ofinternational law
shall apply. Defensivemilitary action is subject to the laws of war to thesame
extent as offensive military action. None of the des which we have ated in
our submission make any exceptionfor a 'defensive'use ofnuclear weapons.
Thereforewhere we have rules of international law that prohibit (a)the use of
poisonous weapons or (b) weapons that cause unnecessary or aggravatedsuffering or (c)harm the environment or (d) destroy medical faùlities or (e)
damage or poliute neutral terntory or (f)cannot distinguish between civilian
objectsand military objectives,then their useisunlawfui.
In fact it is hard to see how one might use nuclear weapons in self-.
defence. If one has been attacked with nudear weapons, then the use of
nudear weapons against the attacker will do nothing to defend the attacked
State.It has aireadybeen hitIts citieshave been devastated. There isno way
for it to defend itseif against a result which has already occurred. Soits use of
nuclear weapons in that situation WU, of necessity, be retaiiation and we
have aiready shown why it isnot lawful to usenuclear weapons in retaliation.
One might argue that a State may threaten to use nuclear weapons in self-
defence. Butthis is acceptableonly if one accepts the validity of the deterrence
theory ofinternational affairs.Thereare senous flaws in deterrence theory.
(e) It is possible to inventa scenario where the use of Nuclear Weapons
would be Lawfui
Some state representatives wdl attempt to argue that nudear weapons
are lawful in certain circumstances. In attempting to so argue they will
present scenarios in which the use of nuclear weapons are free of the legal
defects which the use ofnudear weapons possess. On the general question of
scenarios Ian Brownliehas commented 19:
It israther ridiculous to aliow refined examples
ofputatively lawhd use to dominate the legalregime
[thus ignoring] the generalcontext of conflict and
the nsk ofescalation.
l9 Brownlie,supranote 2 at 450. Certady, the risk of escalation must not be ignored, but as we wiii
show, it is doubtful that any scenarios invented can meet the test of
lawfuiness.
It is submitted that, in any scenario designed to meet the cnterion of
lawfuiness, six conditions wouldhave to be met:
1. The nudear weapons would have to be radiation free. We submit
that there is no such thing as a nudear weapon whichis entirely radiation
free. We venture to predict that al1scenarioswili talk about "substantially"
radiation free nuclear weapons. But just a little probing wili reveal that none
of the so-calied "clean"weapons are entirely free of radiation.
2. The nuclear weapons for which the status of legality is claimed
shouid not cause unnecessary or aggravated suffering.
3. The nuclear weapons for which the status of legality is claimed
shouid not be harmfd to the environment.
4 The nuclear weapons for which the status of legality is claimed
should not be likely to destroy medical fadities.
5 Nuclear weapons for which the status of legality is claimed should
not damage or pollute neutral territory.(Thi wsas not dealt with in Nauru's
submissions. But the point was made quite effectivelin other submissions.)
5. The nuclear weapons for which the status of legality is claimed
should be capable of distinguishg between miliary objectives and civilian
objectç.
6. At any rate it must be unlikely that conventional weapons could
accompiish the desired military resuit. The scenario most commonly invented isthe use of low yield tactical
nuclear weapons on a military base isolated in the dessert. The scenario
attempts to eliminate some of the illegal consequences of the use of nuclear
weapons. By calling the weapons low-yield the argument theoreticaily
eliminates the poison argument because the weapons would not contain as
much radiation. Itismy intention to cailto the stand a nudear saentist who
wiil tesûfy that there is no such thing as a completely dean nudear weapon.
Sowe can see that it isnot possible to completely do away with radiation and
the ha& effectsofradiation.
Another matter which tius scenario is intended to deal with is the
desirability of eliminating the failure to distinguish between civilian and
military targets. Thismay be kue. Buteven in this case.
1.A nudear weapon would stillcause unnecessary and aggravated suffering.
2.As 1 have shown it would stiilbe poisonous.
3.It would stiiidamage the environment, and
4. It would stiil destroy any medical facilitythat might exist on the base. Soit
would stilibe uniawful.
Conclusion
We have shown that the use of nuclear weapons violates a number of
important des of international law. There may be no speafic treaty ban-ing
the use ofnudear weapons but we have shoum that these are weapons whichdo things which many nile3 of treaty and customary law prohibit weapons
from doing. We have also shown that international humanitarian law does
not cease to have effectjust to satisfy daimsmiliary necessity.Furthemore
the rules of international humanitanan law apply whatever the nature of the
conflict.They apply when a State isacting in self-defenceand when a State is
acting in retaliation.
Letter dated 15 June 1995 from Counsel Appointed by Nauru, together with Written Comments of the Government of Nauru