Peter Weiss, April 2, 2001
“It has to be observed”, said the court in paragraph 56 of the opinion it handed down on March 30, 2001, “that there may be an important issue which is not disposed of” as a result of the Crown’s failure to challenge the justiciability “in this court” of the legality of the deployment of Trident II. That issue is whether the position taken by Lord Reid in 1964 in Chandler v. Director of Public Prosecutions, i.e. that no one is entitled to challenge in court “the disposition and armament of the armed forces”, was correct then and is correct now. The Lords Prosser, Kirkwood and Penrose leave the reader of their opinion in little doubt as to where they stand on this issue: Not only do they call attention to it in par. 56 with an extensive quote from Lord Reid, but they return to it in pars. 58 and 60 and, significantly, in the concluding paragraph of their opinion, in the following terms: “We have grave misgivings as to the justiciability of the issues which we have been asked to deal with, in relation to defense policy and the deployment of the Trident.”
Having thus aligned themselves with the view that the deployment of weapons, even those which may be illegal under international law, is not subject to judicial challenge, it is not surprising that the judges devoted their opinion to attempting to show that, in any case, the illegality of Trident II had not been conclusively proven and procedural errors had been committed by the trial court. It was not enough to bury the ability of three courageous women to exercise their Nuremberg obligation to prevent the commission of crimes against humanity; the coffin had to be nailed tight. The following comments will deal with some of the specifics of this sad abdication of judicial responsibility.
Ad Question 1: In a trial under Scottish criminal procedure, is it competent to lead evidence as to the content of customary international law as it applies to the United Kingdom?
This question, like the other three, was answered by the court in the negative. In par. 24, the court admits that evidence as to foreign law may competently be led in Scottish proceedings – by implication, even before a jury – but goes on to state, without a shred of authority, that “any analogy between such foreign law and customary international law is false.” It is true that, in principle, as the court correctly observes in par. 23, “a rule of customary international law is a rule of Scots law” and is therefore “a matter for the judge and not for the jury.” But it does not follow either that a Sheriff’s acquaintance with customary law may reasonably be assumed or that evidence as to the customary law applicable to the case at bar must be withheld from the jury. Ultimately, it is the Sheriff who must instruct the jury as to the relevance of either foreign law or customary law in any given case and it is difficult to see why, as to foreign law, the jury should have the benefit of expert testimony while, as to customary law, it should be deprived of such testimony.
In any case, the High Court should, at the very least, have observed that evidence as to customary law may competently be presented to the trial judge, if not to the jury.
Questions 2, 3 and 4
Necessity
In par. 37, the court falls into the usual trap of equating the timeline for a run-of-the mill necessity case, like damaging a runaway car in order to prevent that car from injuring people, with the timeline for preventing a nuclear holocaust: “A danger which is threatened at a future time … might be avoided by informing the owner of the property and so allowing that person to take action to avert the danger.” To which one can only respond: When the owner has been warned repeatedly and unsuccessfully over a long period of time, what then? And when would be the appropriate time to take action, after the Trident’s warheads have been launched? The court’s reasoning here is a classic example of applying a principle taken from one factual context to an entirely different context in which this principle cannot possibly serve the same function.
On the other hand, the applicability to the present case of the principle of an action “remorselessly compelled by human instincts” (par. 38) seems to have escaped the good Lords.
This part of the opinion contains a number of other useful findings at variance with the Crown’s position.
The “any normal person” test is wrong, since not all normal people perceive emergencies in the same way or, even if they do, are “equally brave or of equal resolve.” (Par. 40)
“There is no acceptable basis for restricting rescue to the protection of persons already known to and having a relationship with the rescuer.” (Par. 44),
“The defence of necessity [can] be available where the place and person or persons under threat from the apprehended danger [are] remote from the locus of the allegedly malicious damage.” (Par. 45)
None of this, however, has a bearing on the case at bar, since “it is an essential element of the respondents’ argument in relation to necessity that they must show that the Government is in breach of customary international law.” This requires, first, a discussion of the dangers posed by the nuclear-armed Trident and second, a discussion of the ICJ Advisory Opinion.
Trident and Danger
With respect to this section, it is sufficient to observe that the court, in its non-fact-trying mode, simply notes “certain undisputed facts about Trident” (par. 61). These include the fact that “the Trident nuclear warheads are 100 to 120 kilotons each, approximately eight or ten times larger than the weapons used at Hiroshima and Nagasaki” (par. 63) and that therefore, if they were used, “the damage done, and the suffering caused, could not be other than indiscriminate.”
The Advisory Opinion
This section of the High Court’s opinion constitutes the most extensive judicial analysis to date of the ICJ Opinion. It is, however, based on a serious misreading of what the ICJ said.
At the outset, we are confronted by an astounding contradiction within a single paragraph (66). We are told in line 2 that the ICJ opinion “is an advisory opinion, not a judicial determination of customary international law” and in line 8 that “the advisory opinion may be regarded as confirmatory of the then rules of customary law.” It is easy to agree with the second statement, but not with the first: Since the ICJ opinion is indeed confirmatory of customary law, how can it not be a determination of that very same law?
Then, in par. 72, the court comments on ICJ par. 48, which states that whether a policy of deterrence is a threat contrary to Art. 2(4) of the UN Charter depends on whether “the particular use of force envisaged would be directed against the territorial integrity or political independence of a State” and concludes that “it is apparent that the court sees deployment as a deterrent as not necessarily involving this crucial element of ‘threat’”. Well and good, but , one may be permitted to ask, how much territorial integrity, not to mention political independence , would a country have after being hit by not one, but several nuclear warheads eight to ten times the size of those dropped on Hiroshima and Nagasaki?
The court then, in par. 74, turns to ICJ par. 67, which states that there is no opinio juris concerning the threat and use of nuclear weapons. The Scots court finds this passage unequivocal, but as to what? In the same paragraph 67, the ICJ went out of its way to say that it did not intend to pronounce upon deterrence. Does this constitute and unequivocal endorsement of deterrence? Hardly.
In par. 75, the court also finds unequivocal the ICJ’s statement, in its par. 73, that there is an emerging, but not yet established, lex lata concerning the prohibition of the use of nuclear weapons. But this refers only to the prohibition of nuclear weapons in haec verbis, not to the prohibition of the threat and use of strategic nukes under principles of humanitarian law.
More significant is the fact that, in par. 76, the High Court quotes from par. 78 ICJ the cardinal principles of humanitarian law, which dictate, inter alia, that “States must never … use weapons that are incapable of distinguishing between civilian and military targets” and that “cause unnecessary suffering to combatants”.
The court also quotes the ICJ’s statement, in its par. 79, that these are “intransgressible principles of international customary law”. At this point, it would have been useful had Lord Prosser and his colleagues attempted to analyze how nuclear weapons eight to ten times the size of those dropped at Hiroshima and Nagasaki could ever comply with these cardinal principles of humanitarian law,
We come, then, to par. 86, where the High Court finds the use of the words “should” and “particularly” in par. D of the ICJ’s dispositif ”somewhat surprising and confusing” and concludes that Section E, with its “extreme circumstances” clause, “identifies no rule, expressly or by implication.” There is, however, nothing surprising or confusing about par. D, which was decided unanimously. The fact that the threat and use of nuclear weapons should be compatible with the requirements of international law, and particularly those of humanitarian law, follows from everything that has gone before in the ICJ opinion and is, indeed, merely “an asseverance of the obvious”, as Vice President Schwebel said in another context in his separate statement.
What is surprising and confusing is the High Court’s statement that par. E identifies no rule. One would think that its first subparagraph clearly identifies the rule that “the threat and use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law.” True, the modifier “generally” introduces an element of vagueness. But that vagueness is removed by the certainty of the major theme running throughout the entire ICJ opinion, which can be summed up in the following syllogism framed with a view to the undisputed facts of the Greenock case:
Weapons which cause indiscriminate damage to civilians and unnecessary suffering to combatants violate the laws of war and must never be used .
Weapons of the size carried by Trident II are such weapons.
Ergo, the weapons carried by Trident II violate the laws of war and must never be used.
As to the second part of par. E, the first thing to note is that, as President Bedjaoui forcefully declared in his separate statement, it is not to be interpreted as a sanction for the threat and use of nuclear weapons in any circumstance. It is, as Judge Higgins said, a non liquet, an admission of failure to reach a legal conclusion in view of the limited elements of fact at the court’s disposal. It was, therefore, an invitation to future courts to deal with this non liquet in the light of the elements of fact at their disposal. Here, those facts were quite clear: the action of the respondents was aimed at nuclear weapons eight to ten times the size of those used at Hiroshima and Nagasaki and therefore inherently incapable of meeting the requirements of humanitarian law. But the High Court declined the invitation and preferred to rest its opinion on the imprecision of the ICJ’s 1996 Opinion rather than on what should have been the certainty of its application of customary law to the facts before it.
The court could also have examined whether in the intervening timespan the embryonic opnio juris to which the ICJ referred had crystallized into an unequivocal rule of customary law. It could, for instance, have drawn some conclusions from the “unequivocal undertaking” given by the nuclear powers, including the UK, at the end of the quinquennial NPT review conference last year, “to accomplish the total abolition of their nuclear arsenals.” That it did not do so is a matter more for regret than surprise.
What is surprising, however, is the court’s novel theory, in par. 95, that humanitarian law does not apply in time of peace. Saddam Hussein will be pleased to hear that attempts to discourage him from producing weapons of mass destruction lack legal justification because he is not currently engaged in armed conflict (although he may be technically in a state of war with a number of countries). Surely some distinction must be drawn between those parts of humanitarian law, like the mistreatment of prisoners, which by definition apply only to the conduct of hostilities, and preparations for war, including the manufacture and deployment of illegal weapons.
In sum, the court not only failed to find justification in the narrow sense of the term, but justice in the broad sense.