Examination of Witnesses (Questions 260-279)
PROFESSOR CHRISTOPHER
GREENWOOD QC, PROFESSOR
NICK GRIEF,
PROFESSOR STEVEN
HAINES AND
PROFESSOR PHILIPPE
SANDS QC
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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