WCP Commentary on Scottish Report 4

INLAP/World Court Project UK

for the legitimate use of nuclear weapons is clearly a high one. We would only consider using nuclear weapons in self-defence (including the defence of our NATO allies), and even then only in extreme circumstances. The legality of any such use would depend upon the circumstances and the application of the general rules of international law, including those regulating the use of force and the conduct of hostilities. (Para 2-11).

This pre-empts discussion of the issues by stating that the legality of use could only be assessed in an actual situation when they might be used. It follows that legal considerations can be dismissed as “hypothetical”.

We can glean a little more about Government thinking from the 1995 UK written and oral pleadings before the ICJ in 1995-96. It is unlikely that there has been much new analysis since then.

The UK argued before the Court that if nuclear weapons were used the intention would be to destroy military targets through their heat and blast. Radiation, said the UK, is only a side effect. There would therefore be no actual intention to "poison" the enemy through radiation (UK oral pleading 1995 para 3.60).

However, nuclear weapons are "explosive devices whose energy results from the fusion or fission of the atom.” (ICJ 1996 Advisory Opinion, para 35). Radiation is therefore of the essence. The UK might believe that consequences which are inevitable and necessary, but unintended, are not relevant to the legal argument. If this is so, it has to be argued, not merely asserted.

The UK pleadings emphasised the accuracy of small nuclear weapons detonated in isolated areas. These may not violate the IHL principle of discrimination. This, it is argued, would depend on the circumstances prevalent at the time.

We accept that targeting may well be accurate. However, the likely effects of a weapon must also be taken into account when assessing discrimination. No one could reliably forecast the complex atmospheric conditions and the direction of the wind at any given moment. The effects would be so unpredictable that accurate targeting would be irrelevant. No nuclear launch could be made with any assurance that its effects would fall within the bounds of legality.

Weapons like the 100 kiloton Trident warhead are designed to detonate as air bursts to cause the maximum damage. Smaller 1-5 kiloton weapons would be exploded on the ground in order to destroy precise targets. They would throw up enormous quantities of radioactive dust which would be sucked into the stratosphere and come down anywhere - even thousands of miles away. This would irradiate unpredictable numbers of people then and well into the future.

Both the UK and the US have consistently asserted that those arguing for illegality claim that all nuclear weapons have certain "inherent" characteristics which inevitably make their threat or use incompatible with international humanitarian law. "Many of the submissions made to the Court have displayed a similar tendency to assume that, as a matter of course, any use of a nuclear weapon will