Submission by Gerry Moynihan

12th October 2000

Gerry Moynihan is the amicus curiae (friend of the court) appointed by the court to ensure that Angie is not disadvantaged by representing herself.

The ICJ Opinion and Lawfulness of Trident 2

– The Court considered nuclear weapons in the abstract and did not consider specific scenarios (eg. use against rogue States) or particular weapons (eg.Trident 2)

ICJ para 15 [237] – The ICJ took into account the possibility of so-called clean or discriminating weapons (weapons that might be of a sufficiently small scale to amount to a proportionate response), despite the absence of evidence that any such weapon exists.

ICJ para 43 [245], 91 [261] – Leaving aside the possibility of discriminating nuclear weapons, the use of nuclear weapons would be contrary to customary international law (humanitarian law and the principle of neutrality) in any circumstances.

ICJ at 94-95 [262]

See also Bedjaoui at 19-22 [272-273].

The rules of humanitarian law are summarised at 78.

They are intransgressible principles of customary international law: 79.

Humanitarian law bears on the threat or use of nuclear weapons: 86.

Principle of neutrality – defined at 88

Applicable: 89 – There was a reservation about the possible legality of the threat or use of nuclear weapons (1) in self-defence and (2) where the survival of the State was at stake:

ICJ at 97 [263] and 105(2) E [266]

(1) The threat or use of nuclear weapons would be unlawful in other circumstances: ICJ 95 [262], 97263] and 105(2) C and D.

(2) Even in those circumstances, if any weapon can lawfully be used it is only a weapon of discriminating scale: ICJ 95 and 105(2)C and D. – If the actual use of any particular type of nuclear weapon would be unlawful, then the threat of use of that weapon is unlawful. ICJ 47 [246] – A policy of deterrence which entails either (1) a signalled intention to use force or (2) a declared preparedness to use force can amount to a threat.

If the policy relates to a weapon the use of which would be illegal, that threat is similarly illegal. ICJ at 47 and 48 [246] – The same holds true whether the question is considered at a time of War or a time of Peace: ICJ 105(2) C and D.

The facts about Trident

The references below are to pages and paragraphs in the official transcripts of expert witness evidence given at the Greenock trial. These transcripts are available on this website, but without the original page and paragraph numbering.

Links to Expert Evidence Transcripts: Prof. F. Boyle, Prof. P. Rogers, R. Johnson

– Trident is a mass indiscriminate weapon.

Boyle 62A-F, 63C-D

Rogers at 6-7: One Trident 2 warhead = 100 kilotons = 8 Hiroshima and each missile has 6. – Most probably going to be used against cities.

Boyle 64, 96 (Moscow) – It is maintained armed, equipped and ready for attack within 15 minutes.

Boyle 65 – Trident is an offensive, first strike strategic nuclear weapon whose primary purpose is mass destruction.

Boyle at 100E-102E

Rogers at 10 – Its potential use is not confined to survival of the UK- UK has considered it as part of the rogue State policy.

Boyle 106-107

Rogers (27) – UK has policy for use even in situations short of a world war.

Johnston – Rifkind talked about a warning shot across the bows (smaller weapon) – 58D-E – Trident is not the small scale, discriminating weapon that the ICJ made the subject of its reservation. The UK does not possess such a discriminating nuclear weapon.

Rogers – UK has sub-strategic warhead but even that is 5-10 kilotons (or about the size of Hiroshima). Even this is a weapon of mass destruction (12-13, 30-32).

Boyle 70-71, 106-107, see also 103, 110E-111A, 117-118. – The UK deployed Trident at the time of the Gulf War and Kosovo in circumstances that were open to interpretation as a threat to use:

Rogers 23-24, 25, 29-32

Johnson – Gulf War – 73E-74A

Zelter: document 29