President, Lawyers' Committee on Nuclear Policy
Vice-President, International Association of Lawyers Against Nuclear Arms
Notes for Address to Parliamentarians Network for Nuclear Disarmament
Vancouver, B.C., November 2, 2003
From time to time the American Journal of International Law, the most prestigious international law journal in the United States and probably in the world, runs a section called Agora, no doubt intended as a reference to the marketplace of ideas.
The July 2003 issue contains such a section, consisting of a debate between proponents and opponents of the legality of the recent war against Iraq. The introduction to this section begins as follows: The military action against Iraq in Spring 2003 is one of the few events of the UN Charter period holding the potential for fundamental transformation, or possibly even destruction, of the system of law governing the use of force that had evolved during the twentieth century.
These are strong words, to be sure, but justifiably so when seen in the context of the new doctrine of preemptive war propagated by the United States, which should more accurately be called preventive war. Let me examine with you the connection between this new doctrine and nuclear weapons.
In order to do this, we must first review briefly the principles which have governed ius ad bellum, the law governing the legality of going to war, since the UN Charter came into force in 1945. The first is Article 2(4) of the Charter, which states that all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any manner inconsistent with the purposes of the UN. This is, or was meant to be, the heart of the Charter, which, you will recall, was intended to save future generations from the scourge of war.
Only two exceptions are allowed to this prohibition against the threat or use of force by one nation against another. Article 42 permits the Security Council to take such action by air, sea or land forces as may be necessary to maintain or restore international peace and security once it has determined that a threat to the peace, breach of the peace or act of aggression has occurred and that measures not involving the use of force would be or have proved to be inadequate to maintain or restore international peace and security. And Article 51 states that nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the UN, until the Security Council has taken measures necessary to maintain international peace and security. This Article is the codification of the definition of self-defense as it has existed in customary law since at least the famous Caroline Incident of 1837, when Daniel Webster, then the American Secretary of State, defined justifiable self-defense as requiring that it be instant, overwhelming and leaving no choice of means, and no moment for deliberation.
How far from the mandate of the Charter the new policy of preventive war digresses is made plain by President Bushs introduction to the National Security Strategy of September 17, 2002, in which he states: As a matter of common sense and self-defense, America will act against such emerging threats before they are fully formed. (see www.whitehouse.gov/nsc/nss.pdf)
Now we must ask: What are these emerging threats which allow the United States to throw overboard the fundamental structure of the UN Charter, insofar as it relates to the use of force? We find the answer in the three contributions to the debate in the American Journal of International Law by the defenders of the legality of the war.
William Howard Taft IV and Todd F. Buchwald, the Legal Adviser and Assistant Legal Adviser of the Department of State:[a] central consideration, at least from the U.S. point of view, was the risk embodied in allowing the Iraqi regime to defy the international community by pursuing weapons of mass destruction.
Professor John Yoo of the University of California In addition to the probability of the threat, the threatened magnitude of harm must be relevant. The advent of nuclear and other sophisticated weapons has dramatically increased the degree of potential harm, and the importance of the temporal factor has diminished. Weapons of mass destruction threaten devastating and indiscriminate long-term damage to large segments of the civilian population and environment.
Professor Ruth Wedgwood of John Hopkins University uses President Kennedys handling of the Cuban missile crisis as a precedent for President Bushs action last spring. The introduction of nuclear weapons into Cuba, she writes, reducing Soviet launch time to seven minutes, would have destroyed any adequate interval for the assessment of nuclear warnings, thus justifying the United States in imposing a defensive quarantine.
What is it, then, about this new doctrine of preemptive/preventive war that has made it palatable to so many people, despite the fact that it undermines the very essence of the United Nations Charter? Apparently it is the magnitude of the armed attack which the first belligerent sees coming from the second, as well as the impossibility of determining just when the attack will occur. It is a commonplace that 9/11 changed everything about international relations and perhaps also about international law. But it is doubtful that the United States would have felt justified in invading and occupying Afghanistan before the tragic events of 9/11, simply on the speculation that they might occur.
What then are this magnitude and this imminence which are supposed to have rendered Articles 2(4) and 51 nugatory? I submit to you that they are the characteristics of by far the most destructive weapon in the history of warfare, i.e. the nuclear bomb.
Never mind that the UN weapons inspectors found no evidence of nuclear weapons activity in Iraq since 1991, never mind that the Niger uranium purchase turned out to be a forgery of which President Bush either was or should have been aware, never mind that in his first postwar report the chief inspector for the United States, Donald Kay could not point to any nuclear weapons activity in Iraq and asked for six to nine months to complete his job, when Dr. Blix, at the time the Iraq war was launched by the US and the UK, had only asked for three. Never mind also that the Saddam-Al Quaeda link in which about half of the American public believed has now been called by the President something for which there is no evidence. The mere fact that these things were said and believed was enough to make a majority of Congress give the President a green light for the invasion of Iraq under his new preemptive war doctrine.
Would the Congress have gone along if the principal justification had been only chemical and biological weapons? I doubt it. Indeed, only nuclear weapons were originally called weapons of mass destruction. The chemical and biological categories were added later, but, without denying their capacity to devastate large numbers of people, this was, proportionately speaking, like adding fleas and mosquitoes to elephants.
The mere invocation of the threat of nuclear weapons, whether delivered by plane, by missile or by suitcase, tends to freeze the mind and cut off discussion. But because the preemptive war doctrine is couched in broad and vague terms it will, I am afraid, spread like nuclear fallout to the four corners of the earth and be used in the future to justify so called defensive wars, whether based on an alleged nuclear threat or some other threat.
I find it curious that with all this defending and bemoaning the new doctrine ten contributions in 125 pages in the current American Journal of International Law alone there is no word of what international law requires of the worlds nations to pave the way for a return to the law of the Charter. And that is, simply, to proceed with all deliberate speed to the abolition of nuclear weapons.
When the Non-Proliferation Treaty was done in London, Moscow and Washington in 1968, its Article VI required each party to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament. In other words, NPT was a deal between the then existing five nuclear weapons powers - the US, the UK, France, China and the Soviet Union - and the rest of the world. If you, said the five, agree not to develop or acquire nukes, we agree in good faith to give them up.
When the nuclear weapons case on the illegality of the threat and use of nuclear weapons went to the International Court of Justice in 1994, the Court two years later rendered a split advisory opinion that the threat and use of nuclear weapons is illegal under international law, but concluded unanimously that there exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.
When the NPT quinquennial review conference was held at the UN in 2000, it ended with a unanimous declaration by which all participating states, including the five official nuclear powers, gave an unequivocal undertaking to accomplish the total elimination of their nuclear arsenals.
So many words, so soon and so cavalierly brushed aside.
I have a standing disagreement with one of my good friends, Professor Saul Mendlovitz, the driving force between Global Action to Prevent War. He maintains that nuclear weapons will never be abolished until we abolish war first. And I reply that it is the other way around; war will never be abolished so long as nuclear weapons have not been effectively banned and eliminated. If he were here today, I would offer him my latest piece of evidence. In the May 2003 issue of the American magazine Vanity Fair, Paul Wolfowitz, the US Undersecretary of Defense who is credited with being the intellectual instigator of the war against Iraq, is quoted as saying that "For bureaucratic reasons, we settled on one issue, weapons of mass destruction, because it was the one reason everyone could agree on."
In a recent interview with Le Monde, Mohamed ElBaradei, the Director General of the International Atomic Energy Agency, estimated that, in addition to the known nuclear weapons powers, 35 to 40 countries were currently capable of manufacturing nuclear weapons on short notice. Maybe none of them will ever use a nuclear weapon. But just think how many preventive wars may be triggered by false or accurate intelligence that this or that country is setting about to build one or more nukes.
Here then is the ultimate paradox of nuclear deterrence: The weapon that is supposed only to dissuade countries from going to war is turning into a, if not the, major reason for countries to go to war.