JUDGE WEERAMANTRY'S DISSENT
In the critical last two formal conclusions of its July 8, 1996 nuclear weapons advisory opinion, the International Court of Justice held as follows:
[Para. 105(2)]E. By seven votes to seven, by the Presidents casting vote,
In his seminal magisterial dissenting opinion of nearly 100 pages, Judge Weeramantry praised the many positive contributions of the Court's opinion, including its holding that threat or use of nuclear weapons is subject to the requirements of humanitarian and environment law, and its statement of the nuclear disarmament obligation in paragraph 2(F). But he firmly rejected the Court's equivocation regarding an extreme circumstance of self-defense involving the very survival of a state in paragraph 2(E). He stated at the outset of his dissent:
With regard to self-defense, Judge Weeramantry explained that the "undoubted right of the state that is attacked to use all the weaponry available to it for the purpose of repulsing the aggressor holds only so long as such weapons do not violate the fundamental rules of warfare." "Once the domain of force is entered the humanitarian laws of war take over and govern all who participate, assailant and victim alike."
The supremacy of humanitarian law applies as well, Judge Weeramantry emphasized, to the threat inherent in deterrence justified as a system of international security:
Judge Weeramantrys dissent deserves to be widely circulated as a primer on the illegality of nuclear weapons. Replete with citations from the literature and jurisprudence of many cultures, he comprehensively discussed the facts and the law rendering nuclear weapons illegal in all aspects, patiently and convincingly rebutting every argument advanced by the nuclear weapon states. Addressing the argument that "collateral damage" caused by nuclear weapons targeted against military objectives is not prohibited, Judge Weeramantry stated that those who use nuclear weapons "cannot in any coherent legal system avoid legal responsibility" for the consequences, "any less than a man careering in a motor vehicle at a hundred and fifty kilometres per hour through a crowded market can avoid responsibility for the resulting deaths on the ground that he did not intend to kill the particular persons who died." While regretting that the Courts opinion did not go the last mile, Judge Weeramantry began by stating that it "contains positive pronouncements of significant value" which "take the law far on the road towards total prohibition." If the history of law is the history of the progression from dissent to norm, Judge Weeramantrys opinion could be a harbinger of things to come.
- John Burroughs, 8 March 2000