Select Committee on Defence Minutes of Evidence

Examination of Witnesses (Questions 280-299)


30 JANUARY 2007

  Q280  Chairman: I think they are legally deployable anywhere. Can I get back briefly to self-defence? Leaving aside the issue of whether these weapons are legally usable or not, if they are legally usable for self-defence does that legally include the defence of allies? Professor Greenwood, you nod. It does?

  Professor Greenwood: Yes, definitely.

  Q281  Chairman: Professor Grief?

  Professor Grief: I think yes, it does. The ICJ expressed itself in different ways, but yes.

  Q282  Chairman: And Professor Sands? Where does that consent end and who is an ally?

  Professor Sands: I nodded precisely subject to that caveat. It would depend on the pattern of the treaty relationships that are in force and it would not be an automatically open-ended demolition of what constitutes an ally. NATO, for example, is a treaty arrangement in which the parties to the North Atlantic Treaty Organisation undertake to protect each other against various forms of attack, so plainly in those circumstances that would be the allied justification.

  Q283  Chairman: So an agreement between prime ministers but not a signed treaty would not be sufficient to justify the use of nuclear weapons, you would say, Professor Sands?

  Professor Sands: I do not think one could say that. I think one would need again to look precisely at the factual set of circumstances.

  Q284  Chairman: In all this uncertainty does it not lead us to wonder what on earth the real meaning of international law is in these circumstances with the ICJ finding seven for, seven against and the President casting his vote? It is quite difficult to work out exactly what the concept of that is but with different interpretations of what international law is and what the international law on this point is and with different meanings of words, is this actually a legal issue at all?

  Professor Greenwood: Chairman, I think in the end, as I said in my first answer, it is primarily a political question, not a legal one. Some areas of the law are quite clear and one thing that is clear is that the right of self-defence is both individual and collective and there is no requirement of a prior treaty of alliance between the two states in question.

  Professor Sands: I go back to what I said at the outset. You cannot separate out the policy issues and the legal issues. They are so closely intertwined as to be inseparable. I would invite the Committee to proceed with caution in suggesting that there are not rules of international law to be applied here, if only because to do that would cause other countries to seize on those words in circumstances that I certainly would find very difficult. Again I am thinking of the Iran situation. There is a very difficult negotiation on the way right now on precisely what the 1968 treaty does and does not impose upon Iran and upon other countries.

  Chairman: You are causing a lot of trouble here, Professor Sands.

  Q285  Mr Jones: So those organisations that have been before us arguing that the reason why Trident should not be replaced is a legal one you would disagree with?

  Professor Sands: I come back to what I have said, I hope, consistently. It is a legal and political issue in which the two sets of issues are very closely intertwined. You have heard: we cannot as lawyers give you a clear black and white answer as to what the law requires. In that situation it is often no different from the English criminal law on murder and manslaughter.

  Q286  Mr Jones: No, but I know in a few weeks' time or when we are having debates in Parliament some colleagues will stand up and argue that there is a legal definition. We have had a campaigner here before who has actually argued that this policy is illegal, so what you are saying is that you do not agree with that, that you can boil it down to a for and against legal position on it?

  Professor Sands: No. I think it is much more complex.

  Q287  Linda Gilroy: Would you agree, and I would appreciate Steven Haines' observations on it as well, that ambiguity is really inherent to the nature of a deterrent and posturing, and as soon as you start entering into hypothetical circumstances you just run into difficulties which means that you end up with the lawyerly equivalent of angels dancing on the head of a pin?

  Professor Haines: One of the problems with talking about hypothetical situations is that in my experience you can talk about as many hypothetical situations as you like; what we will eventually be faced with will be something quite different, and if you base everything on your range of hypothetical situations that you are teasing through you will probably get it wrong.

  Professor Grief: On this question of law versus policy I think it is a mix, but even a body like the UN Security Council has to act within what has been described as a circumscribing boundary of legal norms and it is no different for the Prime Minister, or any prime minister. Perhaps another question is, after the event would there be anything in the way of enforcement, criminal proceedings perhaps, brought against a particular individual?

  Chairman: We have got quite enough questions ourselves. Once you get into the issue of nuclear reprisal then arguments about international law become somewhat academic, do they not?

  Mr Jones: You are not suggesting, Chairman, an Armageddon? There is no role for the lawyers?

  Robert Key: Don't you believe it, Chairman!

  Q288  Mr Jenkins: I want to probe a little bit on legal restraints. We have moved into an area now which has been in the back of my mind, listening to what you have been saying and your interpretation of agreements. Is there any legal restraint upon the development of a new generation of nuclear warheads?

  Professor Haines: I do not think there is a general legal restraint on the development of a new warhead. It seems to me that if you accept, as I do, but I appreciate one or two of my colleagues do not, that the possession and deployment of these systems is lawful, then, of course, one of the responsibilities you have as a nation possessing them is to have the safest, the most tested (in the general sense) system available so that you can be certain that it is a reliable, credible system that you can deploy with confidence, and the Trident system consists of a variety of different components. The submarines have got one, the missile system itself has got one, the warhead is another, and the development of warhead technology and the way that that will advance over the next 30 or 40 years may well result in a different warhead arrangement being required for the system. It is hardly surprising in many ways because, if you take yourself back 20 or 30 years to the point when we were deciding to replace Polaris with Trident and going for D5 and the warhead potential that that had, it was a decision that was made in the context of the Cold War and the warhead arrangement was designed with that particularly in mind. The circumstances are very different today, obviously, and that may require, it may allow, a lower capability in warhead terms and so on, so the development of different warhead arrangements, it seems to me, is an inevitable part of the process of maintaining this sort of deterrent capability on into the future, and it would be irresponsible not to continue to look at warhead technology.

  Professor Sands: I would approach the question in a slightly different way. I do not think I can give you a straight black and white answer because it would depend again on the factual circumstances. I would ask myself a couple of questions: would the development of these new warheads make the ultimate objective of disarmament more or less remote or impossible? And, secondly, would it make the use of nuclear weapons more or less likely? If the answer to those question is that it would make it both more likely that they were used and less likely or impossible that there could be disarmament then I think some serious legal questions would arise. For example, if we were sitting here today with a White Paper in front of us announcing a move to a whole new family of tactical nuclear weapons, I think our debate and discussion would not be very different.

  Q289  Chairman: You would take a much stronger view, would you not. Professor Grief?

  Professor Grief: No, I am happy to associate myself with those remarks. The only thing I would add is that I would emphasise the fact that if a smaller, lower yield weapon were deployed I do think it makes it more likely that the thing will be used, and it would probably be exploded at or near ground level. As I understand the science, the radioactivity from such an explosion would be that much greater.[3]

  Mr Jenkins: That is where you lose me a lot of the time because some of your evidence and your opinion has been that if I have got a gun and I have a smaller gun I am more likely to use it. Believe me, I am not more likely to use it because I will never use a gun in the circumstances. You are projecting things forward. If you consider that some of these warheads are under development, and Professor Haines is right when he says, if we can make a safer warhead will we have an obligation to make a safer warhead? If we can make a more accurate warhead we have an obligation to make a more accurate warhead. That does not imply that we will use it. It is just that what we have got at present, which is legal now, we have redesigned to make it safer. If that is the case with a warhead what is the difference between a warhead and this system? If we have got an existing system which we legally own and we are trying to make it safer, smaller, more accurate, more accountable, what is the legal difficulty, and do not give me that we have a propensity then, if it is smaller, to use it more often? I do not think that will wash.

  Q290  Chairman: I think that was addressed to you, Professor Grief.

  Professor Grief: I feared that. My answer reflected what I have read. I am no expert on military scenarios and nuclear technology but I understand that if a weapon is lower yield—let me start the other way round. I think strategic nuclear weapons were unlikely ever to be used. They might have gone off accidentally but they were unlikely ever to be used. There is something in the argument that a strategic nuclear deterrent is not a particularly credible deterrent at all because you are never going to use it because of the devastating effects of using it. If you develop a nuclear weapon which is smaller with a lower yield, for use perhaps in a battlefield type scenario, then it becomes conceivable that you could use the thing and the world would still turn. That is really what was behind my remark, and I cannot claim any expertise on that.

  Q291  Mr Havard: But developing that capacity now would not necessarily alter the legal imperatives on us?

  Professor Grief: Not as such.

  Q292  Mr Havard: Use would maybe?

  Professor Grief: Use would not as such, but I agree with Professor Sands that there could be issues under Article VI if it renders fulfilment of the NPT obligation more remote.

  Q293  Chairman: Professor Greenwood, you were shaking your head there.

  Professor Greenwood: With respect, I do not agree with that. I do not think there is any point in my speculating about whether a weapon would be more or less likely to be used if you had more of them. I find it counter-intuitive to suggest that a weapon which is capable of more precise targeting is more difficult to reconcile with your legal requirement not to use indiscriminate force than weapons which cannot be targeted so precisely. I have never seen the logic of that argument, but I think it is also worth keeping in mind that to the extent that the only treaty provision, indeed the only international provision at all which bears on the question of possession of nuclear weapons as opposed to their use, is Article VI of the NPT. Article VI was drafted nearly 40 years ago. There have been enormous changes to nuclear weapons technology introduced and implemented during the 30-something years that that provision has been in force. One of the best guides in international law to what the treaty means is how the parties apply it in practice. You are actually directed to take account of that under the rules of international treaty interpretation., and so the fact that there have been these enormous updatings of weapons systems during the 37 years now that this provision has been in force makes me find the argument that it impliedly prohibits any alteration to warheads, any change to them, very difficult to credit.

  Professor Grief: Could I just come back on the element of Professor Greenwood's answer about the indiscriminate nature of small weapons? Small nuclear weapons would still be indiscriminate weapons and still in my view be incapable of being used consistently with the principle of distinction.

  Q294  Chairman: Can I come on to that because, Professor Grief, in your memorandum you say, "The cardinal principles of international humanitarian law are (i) States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian objects and military objectives", and (ii) it is prohibited to cause unnecessary suffering to combatants", so we know what you think about. We know what Professor Haines thinks about that because in your memorandum you say that there are two exceptions to that. The first is if the civilian casualties are of a proportionate scale to the expected military advantage and the second is the case of reprisals. Professor Sands, do you agree that nuclear weapons are incapable of distinguishing between civilian objects and military objectives and are therefore illegal?

  Professor Sands: I do not agree with that blanket statement because this was an issue that was argued over before the International Court of Justice and the Court came to a different view, and my function here is to report to you what the International Court of Justice said. One can envisage scenarios in which the use of a nuclear weapon would possibly not affect civilian targets in that way, but to the extent that that would not happen, ie, civilian targets would be disproportionately affected, it is very hard to see how they could be justified to be used in law.

  Q295  Chairman: So you agree Professor with Haines's two exceptions to that rule about disproportionate and reprisals?

  Professor Sands: I am certainly much closer to that line of thinking. One certainly cannot say that nuclear weapons are inherently unlawful. That view was put to the International Court of Justice. It was rejected by the International Court of Justice and therefore an alternative analysis is to be applied.

  Professor Grief: Chairman, I simply wish to observe that in the memorandum you cited I think I do say that the use "in any realistic military scenario would be unlawful".

  Q296  Chairman: Inherently unlawful because of the discrimination point?

  Professor Grief: Yes, but I agree with Professor Sands that you could conceive of a situation where a weapon were exploded in the middle of a desert perhaps without causing any civilian casualties whatsoever. That to me is not a realistic military scenario.

  Q297  Chairman: Professor Greenwood?

  Professor Greenwood: I think, with respect, the way in which Professor Grief has framed the question is not quite right either in terms of military science or in terms of law. No weapon is capable of distinguishing between a civilian and a combatant. Weapons are themselves inherently capable of being used against anyone. More people have been killed by the use of machetes and primitive weaponry of that kind since the Second World War than died in Hiroshima or Nagasaki. The question is rather what legal test does international law apply in the use of weapons? It applies to: you must not deliberately target the civilian population as such save—and this is controversial—in the case of belligerent reprisals. Secondly, if you do target a military objective you must not do so if you are likely to cause civilian casualties which are wholly out of proportion to the military objective you are seeking to achieve. That is not quite the same test and I can envisage circumstances where it would be lawful to use a nuclear weapon against a military objective even though that was going to kill large numbers of civilians if the military gain which you were seeking to achieve was so important. It would only be in an extreme case but I think it is possible that it could happen.

  Q298  Linda Gilroy: What is the legal significance of the UK's recognition as a nuclear weapon state under the Non-Proliferation Treaty? Is this a legal justification in its own right for the UK's possession of nuclear weapons? We have already raised that earlier but if any of you have any further points to make, particularly on that latter point, we would be grateful. Feel free to say no if you have not.

  Professor Grief: I have made my remarks.

  Professor Greenwood: To ask whether the NPT authorises the possession of nuclear weapons, which is the way it is put in some of the literature, is the wrong question. Before the NPT there was no rule in international law that prohibited any state from possessing nuclear weapons. On ratifying the NPT most of the parties ratified it or acceded to it as Non-Nuclear Weapon States. They therefore assumed an obligation under the NPT not to acquire nuclear weapons. The five states that became parties as Nuclear Weapon States became parties subject to a different obligation, the obligation in Article VI, so the critical question is not, "Is our status as a Non-Nuclear Weapon state something that authorises the possession of nuclear weapons?". It is rather, "Is our ratification of the treaty as a Nuclear Weapon State something which leaves us where we were before in terms of our right to possess nuclear weapons?", and I think it does, subject only to our duty under Article VI to negotiate a comprehensive nuclear disarmament.

  Professor Sands: I agree with that, subject to a modest caveat. I think it is important, and we have not focused on it, to look at what happened. Christopher Greenwood has alluded to one aspect of that, since 1968 when the treaty was adopted, and in particular developments in the extension because originally the treaty was only to apply for 30 years. The Non-Nuclear Weapon States that joined did so for that limited period of time. The question then arose as to what would happen at the end of that period of time. A deal was struck in which it was extended indefinitely in return for a greater commitment on the part of the Nuclear Weapon States to their Article VI obligations, and again, and I know others at this table will say it is not for us to deal with those issues, I think it is ridiculous not to recognise the interplay of the legal and the policy. One has to ask oneself what is the consequence of a continued failure, if that is to occur, on Article VI for those states that have indefinitely extended their non-nuclear aspirations. The steps that were agreed, in particular in 2000, on Article VI, which I have set out in my opinion, are important at keeping at the forefront of our minds the future wellbeing of this treaty.

  Q299  Linda Gilroy: We went into that before but I would like to pursue that to the extent that it has been suggested to us in an earlier inquiry that our seat at the Security Council does not depend upon us having a nuclear weapon, but I wonder if any of you could give us the benefit of your experience. If we did that, in the unlikely circumstances of that happening, would it bring with it any legal limitations on our role as a member of the Security Council?

  Professor Grief: No.

  Professor Haines: No, none whatsoever.

  Professor Sands: There is nothing in the UN Charter which requires Permanent Members of the Security Council to possess a nuclear weapon.

3   Radiation effects would be greater for an explosion at or near ground level because solid material would be sucked in and irradiated and then spread over long distances. Back

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