Examination of Witnesses (Questions 240-259)
PROFESSOR CHRISTOPHER
GREENWOOD QC, PROFESSOR
NICK GRIEF,
PROFESSOR STEVEN
HAINES AND
PROFESSOR PHILIPPE
SANDS QC
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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