Select Committee on Defence Minutes of Evidence

Examination of Witnesses (Questions 240-259)


30 JANUARY 2007

  Q240  Chairman: Can you give us some examples of those states which are outside the NPT regime?

  Professor Haines: North Korea is outside the NPT regime, Pakistan is outside the NPT regime, as indeed are India and Israel.

  Q241  Chairman: Professor Grief, you were disagreeing.

  Professor Grief: Yes. I wanted to come in, if permitted, on this question of possession because I have to disagree with Steven that the NPT somehow allows the United Kingdom to have nuclear weapons. It is quite true, as Steven has said, that the NPT in Article IX defines a nuclear weapon state as a state which exploded a nuclear weapon or other nuclear device before 1 January 1967 but Article IX actually says that is a definition for the purposes of the Treaty and only for the purposes of the Treaty. I am sorry to use this word again but it seems to me that it is not good faith interpretation of the Treaty to suggest that it somehow authorises states to have nuclear weapons. The other point I wish to make is that we do not simply possess nuclear weapons in any event.

  Q242  Chairman: No, of course that is true. In a moment we will get on to the threat of use.

  Professor Grief: I was simply going to say that, therefore, the rules regarding use of force and the conduct of hostilities are relevant here. I would disagree with the White Paper when it says—

  Q243  Mr Jones: Can I just turn that back round a little and ask you where does it say, therefore, that it is illegal for the UK to have nuclear weapons?

  Professor Grief: Where does it say that it is lawful for the UK?

  Q244  Mr Jones: No, that it is illegal.

  Professor Grief: It does not, I have to admit. It does not in so many words but there are cardinal principles of international humanitarian law, I think, about which we would all agree in terms of their existence at least, perhaps not about their interpretation and application. By applying those principles to what we know about these weapons and realistic military scenarios of use then I think it is possible to conclude that—

  Chairman: We are perhaps making an artificial distinction here between possession and use. We need to move on to the issue of use.

  Robert Key: Chairman, can we see if we can get our witnesses to agree on this: under what circumstances is the use of nuclear weapons lawful?

  Q245  Chairman: Professor Sands, would you like to begin?

  Professor Sands: Perhaps the easiest place to start is with the Advisory Opinion of the International Court of Justice which gave an Advisory Opinion in 1996. It plainly left open the possibility that certain uses of nuclear weapons could indeed be lawful. It did not clearly specify the circumstances in which such use would be lawful but it indicated, at least a majority indicated, that the use could be lawful in circumstances in which the very survival of a state was at stake. That is one view of what the Advisory Opinion actually says. In my view it is clear that the use of a nuclear weapon which does not affect the global environment or civilians, is able to distinguish between combatants and non-combatants, would not raise difficulties in international law but, of course, the very nature of nuclear weapons makes those criteria very difficult to be fulfilled. I do not think I can give greater clarity than the International Court of Justice gave on the issue.

  Q246  Robert Key: Are we all agreed on what the ICJ said?

  Professor Grief: Probably not.

  Professor Haines: Agreed in the sense that the words on the paper were clearly agreed to.

  Professor Greenwood: It was a seven votes each way Advisory Opinion given on the casting vote of the President. Of the seven who wrote dissenting opinions three thought that the Court should have said that nuclear weapons could not lawfully be used in any circumstances; three said that the Court should have decided that there were circumstances, although unspecified, in which they could lawfully be used; and the seventh thought the Court should not have answered the question put to it in the first place. One might perhaps have some sympathy with that view. Yes, the Court's opinion plainly leaves open the possibility that nuclear weapons can lawfully be used in extreme cases of self-defence where the survival of a state is at stake.

  Q247  Robert Key: Thank you. Let us try this one: is there a legal difference between the threat of use of nuclear weapons and their actual use?

  Professor Haines: Can I answer this in a sort of roundabout way which will involve some mention of strategic thinking. My answer to your question about use, and something I wrote earlier about this, is that nuclear weapons are used in different ways. There is the actual physical use, which is essentially what you have been talking about, but I see them as having been used very effectively over a number of years to maintain strategic balance and to maintain a situation in which we have for 60 years or so not had great power war. The importance of deterrence is absolutely central to this. The use of those weapons, their use as a deployed system that is capable of maintaining that arrangement, seems to me to be a perfectly lawful use. Indeed, one could argue that in self-defence terms it is the only way of ensuring your own defence if you face the possibility of a threat from another power with weapons of that type.

  Q248  Robert Key: So you are saying that to deploy nuclear weapons is to use them but not necessarily to explode them?

  Professor Haines: Absolutely right. That is my belief. My feeling is that these weapons are currently being used this very day. There is a debate now as a result of the end of the Cold War as to exactly what it is that they are deterring, and we can get into a discussion about that that is probably not appropriate at this session. The use of those systems over many, many years has been to maintain that balance between states that hold those weapons. I am perfectly happy that that is a perfectly lawful use of the systems.

  Q249  Chairman: Professor Haines, would you say that the threat of firing an illegal weapon is a legal thing to do?

  Professor Haines: No, but I am not saying that nuclear weapons are illegal.

  Q250  Chairman: You are not. You are avoiding that question, are you not?

  Professor Haines: No, I am not avoiding it, I am saying in certain circumstances they are lawful, that the actual physical use of weapons of that nature would be lawful.

  Professor Greenwood: Chairman, might I add something about threat. There is a danger that the use of terms here is becoming rather loose. To me the use of a nuclear weapon is exploding it, and that is certainly the way in which the term is used in the Advisory Opinion and in international law. A threat to use a nuclear weapon, however, has to be distinguished rather carefully from a deterrent. It is not a threat to use a nuclear weapon to say, "We have these weapons, if we were attacked in extreme circumstances of self-defence we would use them", but the point was put in almost exactly these terms to the International Court by leading counsel who worked with Professor Sands for one of the anti-nuclear groups of states. As he said to the President of the Court: "If I say, Mr President, that if you attack me I will punch you on the nose and I have got big enough fists to do it, that is not a threat to use force." A threat would be, for example, what happened in 1939 when the Czech Government was told by Germany, "Place your country under our protection or Prague will be in ruins by tomorrow". That is an example of a threat. A threat of that kind would be plainly illegal in international law. A deterrent posture, in my view, is not addressed by international law at all.

  Professor Sands: Just taking it a step forward, I think we would probably all agree that mere possession does not constitute threat and in assessing the legality of a threat you need to look precisely at the fact or circumstance in which the threat is made.

  Q251  Robert Key: So is the deployment on our current submarine fleet of warheads a threat?

  Professor Sands: No.

  Professor Haines: No.

  Professor Grief: I would disagree with that. I am sorry to do this. To me, deployment on the submarine is a threat because, to use the words of the International Court of Justice, there is a "signalled intention" to use the things if certain events occur, and that is a threat.

  Professor Greenwood: Chairman, I disagree radically with that. If the weapons are not targeted on any state, and we are told that quite clearly, to possess a weapon is not a threat to use it because if that were true of nuclear weapons on a Vanguard submarine it would be equally true of any weapon possessed by any state at any time. Obviously you have them with a view to using them if you have to but the possession of them is completely different from the threat to use them.

  Q252  Robert Key: Since you have mentioned it, could I just ask you this: does it make any difference that since 1998 in the Strategic Defence Review we have not targeted our warheads? Does it make any difference legally whether the weapons are pre-targeted?

  Professor Greenwood: I think the fact that they are not pre-targeted makes it even more difficult to argue that they are a threat. In the particular circumstances of the Cold War even the fact that they were pre-targeted did not amount to a threat.

  Q253  Robert Key: Do we agree about that?

  Professor Sands: Not necessarily. The fact that they are not pre-targeted does not of itself mean that there is no threat. For example, when the Secretary of Defence tells the Government of Iraq, "If you use certain types of non-nuclear weapons of mass destruction we reserve our right", some will construe that as a threat even though there was not pre-targeting.

  Q254  Chairman: Professor Grief, if you are walking around with a rifle, is that a threat to use it?

  Professor Grief: It could be according to the context, depending upon the circumstances, on what I might have said or what somebody does.

  Q255  Chairman: But not as such, would you agree?

  Professor Grief: Not necessarily as such, I agree.

  Q256 Robert Key: Can I ask now does the United Nations Charter forbid either the use, or the threat of use, of nuclear weapons?

  Professor Sands: No.

  Professor Greenwood: It does not deal with any particular weapons system. It prohibits the threat or use of force with any weapons whatever save in certain rather narrowly defined categories.

  Q257  Robert Key: Do we all agree?

  Professor Haines: Yes.

  Professor Sands: Professor Greenwood has stated absolutely correctly that there is no explicit reference to any form of weapon in the UN Charter, it addresses general rules that are applicable to nuclear and non-nuclear weapons alike.

  Robert Key: Okay. I think I will quit while I am ahead, Chairman!

  Q258  Linda Gilroy: In relation to that set of questions can I ask one about Continuous-at-Sea deterrence, which is the current way in which the deterrent operates. In the debate there is mention that we do not need to maintain that. If it changed so that it was not Continuous-at-Sea, would that in any of your views raise issues about the debate we have just had about use of the weapons, ie in order to use them you would need to threaten somebody specific presumably.

  Professor Haines: There is one issue, of course, and it has always been the argument used to maintain Continuous-at-Sea deterrence, and that is the sailing of a boat in a time of crisis would send out a signal. That is a very valid comment for those in favour of Continuous-at-Sea deterrence to make. Personally I think that in the current circumstances it is not necessary to maintain a deterrent at sea at all times. Obviously I would differ from my erstwhile colleagues in the Ministry of Defence by saying that. In legal terms it does not seem to me to make any difference whatsoever, it is not a legal question, it is a policy question.

  Q259  Mr Holloway: The Government has said that the UK's nuclear weapons will only ever be used in self-defence but they have never said that they would not go for first use. What difference does it make to the legal position if nuclear weapons are used in self-defence?

  Professor Greenwood: To be lawful the use of any weapon has got to comply with two different bodies of law. It has got to comply with the UN Charter rules on whether it is lawful to use force and it has got to comply with the law of armed conflict which governs the way in which hostilities are conducted. If it were not used in self-defence and it were not used in one of the other rather narrow categories in which force is lawful under the UN Charter then it would be a breach of the Charter.

  Professor Grief: I agree entirely with what Christopher has said.

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