Examination of Witnesses (Questions 280-299)
PROFESSOR CHRISTOPHER
GREENWOOD QC, PROFESSOR
NICK GRIEF,
PROFESSOR STEVEN
HAINES AND
PROFESSOR PHILIPPE
SANDS QC
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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