circumstance referred to by the UK Government except for the broad claim that UK nuclear weapons would never be used unlawfully and only in self-defence.
2. Your letter re-affirms the UK Government’s consistent position that “we deliberately maintain ambiguity about precisely when, how and at what scale we might contemplate using our nuclear weapons as we will not simplify the calculations of any potential future aggressor.” In May this year the Foreign Secretary announced a review into the circumstances when the government might use nuclear weapons. This is to be welcomed and it is some relief that, according to a press report, it is expected to conclude that the UK would rule out using nuclear weapons in retaliation against attacks involving biological, chemical, or conventional non-nuclear weapons. This seems to suggest some modification of the policy of ambiguity. Do you think this is so? In any case, it would be useful to know how this review is progressing and when its results will be available. Might it go some way towards clarifying the concerns I have raised in Point 4 below?
3. Your letter says that “My response will also provide you with some further useful information on the Government's position at and following the May 2010 NPT RevCon.” I would welcome any thoughts you might have on the statement in the Final Document which unanimously stressed the “catastrophic humanitarian consequences of any use of nuclear weapons” and demanded that all states “at all times” comply with “applicable international law, including international humanitarian law.” Do you think that this helps to develop our understanding of the legal obligations relating to the use of nuclear weapons, or that it simply confirms what we already know?
4. Finally, and most importantly, I am concerned about your account of our position on legality of nuclear weapon use. You say:
From our previous discussions we are aware that your constituent maintains that any radiation fallout following a nuclear strike would cause harm to civilians, even though they were not the intended victim of the strike, and therefore their use must always be contrary to humanitarian law. In our opinion that view is not consistent with that of the ICJ and the applicable LOAC principles.
My view is a more nuanced two-step one than this. I do not claim that any conceivable nuclear strike would necessarily result in disproportionate civilian casualties. Anything is empirically possible. Furthermore, I am well aware that even unintended civilian harm would not inevitably contravene the rule of Proportionality. The Manual of the Law of Armed Conflict(5.32.1) states:
Additional Protocol 1 lays down a general obligation on the parties to the conflict to take care in the conduct of military operations to spare civilians." and (5.32.1 .c) [those who plan or decide upon an attack shall]: refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.
The effects of any weapon can never be foreseen completely accurately but my position is that the unique unpredictability of radiation effects, bearing in mind the vagaries of atmospheric conditions at the moment of launch, makes it impossible to make any valid assessment of the balance between military advantage and civilian harm. Chemical weapons suffer in the same way. Thus it is the impossibility of exercising the Duty of Care, as required by Additional Protocol 1 and the Manual, that I claim to be the the source of illegality, rather than any violation of discrimination in any specific nuclear strike. It is this point that still needs an answer.
Yours sincerely
George Farebrother (Secretary)
