Select Committee on Defence Minutes of Evidence

Examination of Witnesses (Questions 260-279)


30 JANUARY 2007

  Q260  Mr Jones: Hooray! That is a first.

  Professor Grief: For the time being! In order to exercise the right of self-defence one has to comply with the conditions of necessity and proportionality and I focus in on proportionality and simply ask the question, could a nuclear weapon ever be a proportionate response. It possibly could, I am not ruling that out, but I think it is a question that needs to be asked given the question that has been put.

  Q261  Mr Holloway: Could it extend to defence of our vital interests as opposed to our territorial survival?

  Professor Grief: "Vital interests" is far too vague an expression. That is one of my concerns about the White Paper, that it talks about "vital interests" several times and "extreme circumstances" several times. To me those expressions are not sufficiently precise. I would go back to the Advisory Opinion where it seems to me the Court accepts that the only conceivable exception to the prohibition of use under international law is the in extremis scenario that it paints where the very survival of the state is at stake, but the President of the Court was at pains to stress that the Court was not thereby saying "it is therefore lawful to use nuclear weapons in extremis".

  Professor Greenwood: The President of the Court was one amongst the 14 judges and they had very different interpretations of what they had agreed and that was why it was such a finely balanced Advisory Opinion. They did expressly reject the argument that the use of nuclear weapons could never be proportionate for Charter purposes, so I think that is quite a useful starting point. I am beginning to sound as though I want to disagree with Professor Grief on principle about everything, and that is not the case, but one has to be rather cautious in reading that Advisory Opinion. It is also not confined to the survival of the state that has the nuclear weapon, the language is broad. For example, the use of nuclear weapons to prevent the destruction of an allied state or a state that we were seeking to protect, for example in 1991 the survival of Kuwait, that would come within the ambit of the Advisory Opinion as well.

  Q262  Mr Holloway: You could argue that was a vital interest, could you not?

  Professor Greenwood: Yes, but there are other British vital interests which would fall short of that, I accept that point.

  Professor Sands: Mr Holloway's question is a vital question that has been asked because it puts its finger right on an issue that is of concern and that is the apparent extension of the circumstances in which nuclear weapons could be used. If the Committee has a role to play it is in pushing the government on precisely what it means on that issue. That would be a very useful function for the Committee to play.

  Q263  Chairman: Why do you say it is an extension?

  Professor Sands: Because the door appears to be being opened to circumstances in which nuclear weapons could be used other than in that extreme situation. That is why I have got some hesitation with this White Paper. That is the matter of concern for me. Taking that a little bit further, one can see a scenario where quite understandably, the mere replacement with a new class of submarines is not in itself problematic unless it is part of an implicit or not explicit programme of extending use in other directions. It is the language of the White Paper that does not squarely address that issue but hints in that direction. That is giving me pause for thought about the White Paper.

  Q264  Mr Holloway: In that legal context where would you put Hiroshima and Nagasaki?

  Professor Sands: In my view the use of nuclear weapons in those circumstances would not conform under today's legal rules to the rules on international allow allowing the use of that type of weaponry in self-defence. But, of course, at the time they were used the United Nations Charter had not been adopted so the rules may have been different.

  Q265  Mr Holloway: Is it self-defence if you go for first use?

  Professor Greenwood: I think it could be self-defence. I do not think the fact that the weapon was used before any other nuclear weapon was used against you would necessarily take it outside the scope of self-defence. To fall within the limits of self-defence you would have to be the victim of the armed attack, actual or threatened. Secondly, your response would have to be proportionate. Obviously it is easier to show proportionality in a nuclear response to a nuclear attack but the NATO strategy for two decades was that if we were losing a conventional war in Europe and Warsaw Pact forces were over-running us then we would rely on our nuclear deterrent. In my view that would have been lawful within the terms of the UN Charter.

  Professor Haines: I would agree entirely with that. The idea that nuclear weapons are just there to deter other nuclear weapons is profoundly false.

  Q266  Chairman: In your memorandum you say: "It is not unreasonable to argue that the threat of the use of nuclear weapons should not be employed to counter a mere conventional threat for reasons of proportionality".

  Professor Haines: No, it is not unreasonable to make that statement, that is true.

  Q267  Chairman: You do not agree with it?

  Professor Haines: If there was a conventional threat of sufficient size and magnitude, as there was indeed in the context of the balance of forces in Europe, as far as I am concerned that would be perfectly acceptable. We were dealing then with a staged hierarchy of different systems. There were systems on the Central Front that could have been brought into play that would have taken us through the nuclear threshold which were very different from the sorts of weapons we are talking about in the context of the Trident debate. There was a process of escalation there and I was perfectly content with that. I put in that written submission that I do not think it is unreasonable in current circumstances to say generally speaking nuclear weapons should be there to deter other nuclear weapons. For example, I do not believe that it would have been appropriate to use nuclear weapons against Iraq if they deployed chemical weapons if they had them three or four years ago. It is a question of judgment in the precise circumstances.

  Q268  Mr Jenkin: This question of judgment in the precise circumstances is, I think, what becomes the most problematic question about this whole discussion—I compliment you on what is a fascinating discussion—but in the end you are wrestling with moral problems which any prime minister contemplating the use of weapons would have to wrestle with. Can I put it to you that if the prime minister of the day was satisfied that morally he had no alternative but to use a nuclear weapon and it was unquestionably in the national interest to use a nuclear weapon, difficult as these circumstances are to envisage, the questions of international legality become relegated. This is what I mean by the question that in the end international legality is too malleable a concept for us to set absolute store by because in the end the national interest of our country comes above any question of international legality. That is actually what the international law says in effect.

  Professor Sands: I think there are a number of ways of addressing that issue. Firstly, contrary to the view expressed by a member of the other House, I do not believe there are circumstances in which the national interest outweighs the rule of law, including the rule of international law. You need to be guided by the rules of international law. As you have rightly said, there is always some malleability in the rules, they are open to interpretation and application, and a reasonable prime minister acting in good faith has a range of options. In the second part of your scenario unquestionably the national interest needs to be put on one side because there will always be debate on that, but on the main thrust of your issue if we have a situation in which a prime minister or anyone else start taking decisions of this kind on moral grounds you get yourself into precisely the kind of difficulty we are in now on another story.

  Q269  Mr Jenkin: Except that the UN Charter was drafted by people trying to frame morality. The judges who contributed to the ICJ opinion are themselves human beings trying to frame a moral answer to a moral question, based on texts, agreed, but ultimately to elevate one group of people, ie lawyers, over the people who actually have the responsibility to Parliament, which is after all a sovereign institution, is more malleable than you might be comfortable with, but that is just an historical fact.

  Professor Sands: I would simply say: you have the rule of law or you do not.

  Q270  Mr Havard: Can I just pick up a point you were making, Professor Sands, about the possible extension, implicit or explicit, in the White Paper. Can I understand that a little bit better? Currently the nuclear deterrent we have is deployed on these boats in the North Atlantic or in the Atlantic. Are you saying that the White Paper then opens this up? What is your worry, that they are going to be sent out to the Pacific somewhere, that their extension of use is allowed in it? What are you saying there?

  Professor Sands: I am very grateful for that question because, with great regret, I have learned with this Government to treat words on a paper or words in Parliament with very great caution. I turn to paragraph 3.5 with the heading entitled "Ensuring against an uncertain future". Sections 3.11 and 3.12 are state-sponsored terrorism. Just pause there and ask yourself the question: what has that got to do with the narrow constraints of the use of nuclear weapons in circumstances in which traditionally the context in which they were going to be used has been very narrow. I am not saying that is what is being said will be done but I pause and my request to the Committee, in a sense, is to push the Government on precisely why it has put these issues in here. Why does the Government appear to be opening the door with these paragraphs to circumstances in which the use or the threatened use in the narrow way we talked about could be envisaged in circumstances that fall very significantly short of the in extremis circumstances we have been discussing?

  Q271  Mr Havard: As part of a collaborative arrangement, a coalition of the willing?

  Professor Sands: To cut to the chase, what I am talking about is the circumstance in which you have an alleged terrorist organisation present in a particular part of the world thought to be meddling with weapons of mass destruction, nuclear or non-nuclear. Is it being said here that those are now circumstances in which we would threaten or use nuclear weapons? It is a question I am posing; I do not know what the answer is.

  Q272  Mr Holloway: We are in a completely different world now. We are now in a position where we have terrorists who certainly have the intention, if not the capability, to use weapons of mass destruction. It pains me to defend the Government here but in a sense the terrorists could merely be the delivery system in the same way that the D5 is the delivery system for our warheads, they could be the people who transport it from other countries.

  Professor Sands: I am not disagreeing with you. What I am suggesting is that it should be a function of the Committee to wheedle out of the Government precisely what its thinking is on these issues. This language is too vague, it is too ambiguous and open to too many different possibilities to provide comfort.

  Q273  Mr Holloway: So are you saying that this is a potential policy shift which, because it is a policy shift, might actually shift the Government from a position where it could have been argued to be not acting unlawfully, illegally or whatever the definition is, into a position where it could well now be outside its treaty obligations or outside some other legal construct? Is that what you are saying?

  Professor Sands: Precisely, a possible policy shift. I am not saying that is the case but I would like comfort that it is not the case.

  Mr Holloway: Is that view shared, Chairman, by—

  Q274  Chairman: Professor Grief, you nod, so do you share that view?

  Professor Grief: I am in agreement with that.

  Q275  Chairman: Professor Haines?

  Professor Haines: I have not read it, I must say, in quite the same way, and I certainly do not believe that the nuclear weapons systems we are expecting to see running on over several years are appropriate weapons systems for use in the broad range of circumstances alluded to by Professor Sands, and I do not think that is what the White Paper says. One of the dilemmas you have when you are dealing with these sorts of systems is that you have to be deliberately vague in some senses in order to ensure that the whole policy has some sort of enduring credibility.

  Q276  Chairman: Yes, it says "intentionally ambiguous".

  Professor Haines: Absolutely right, and it is interesting, is it not, that often it is the case that Geoff Hoon's words are quoted against him in the context of the situation relating to Iraq? I did not read those words in that way. Perhaps that is because I came from an MoD background. This is the intentional ambiguity within certain statements of that sort. I disagree with Professor Sands that this Committee should spend a large amount of time drilling into precisely what the Government means here because I think that would be counter-productive. I really do not believe that that is what the Committee should be doing. For a start, you will never get a straight answer, so you will be wasting your time, and I have spent time myself drafting such things in the MoD. You will not get a straight answer, and quite rightly you will not get a straight answer because if they do give a straight answer they will be revealing their hand. This is one of the problems you are going to be faced with.

  Q277  Chairman: Professor Greenwood?

  Professor Greenwood: Chairman, I also disagree with Philippe about this, with great respect. There is obviously a political or policy issue here about the relationship between this Committee and the Government and Philippe Sands says that he is very sceptical about some of the things the Government says but that is not a debate I wish to engage in; I do not think it is any of my business. You have asked me here to give evidence about the law. If one looks at the legal issue I do not see that there is anything in this White Paper, and I have read it quite carefully, which in itself means that the decision that the country is being asked to take puts it in breach of any of its international legal obligations. It is necessarily vague about what might be happening in the future because this is a decision to upgrade nuclear weapons in such a way as to maintain a nuclear deterrent for up to 40 years from now. I do not have a crystal ball that enables me to see that far into the future.

  Q278  Mr Havard: Can I ask you that question again? If the policy were to change and we were to deploy these submarines in the Far East, in the Pacific, would that policy change have serious implications because we had?

  Professor Greenwood: I do not think that where the submarines are sent would make the slightest difference. The reach of the weapons is such that they could reach targets in many continents anyway. It would be more a question of whether there was a threat of using the weapon in a particular set of circumstances, whether there was an actual explosion of the weapon in certain circumstances. That is a matter that would have to be looked at very carefully in legal terms but, as for where the submarines are located, I do not think there is any legal issue in that, nor do I think there is any legal issue in how many submarines we have.

  Q279  Chairman: I want to suggest that there is no policy that the submarines currently should not be deployed anywhere in the world. I think they can be.

  Professor Greenwood: That is right.

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