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Nuclear
Weapons, Ethics, Morals and Law
By Jonathan Granoff
ETHICAL AND MORAL FRAMEWORK FOR
ADDRESSING THE ISSUE:
In his concurrence with the historic opinion of the
International Court of Justice (ICJ) issued July 8, 1996,
addressing the legal status of the threat or use of
nuclear weapons,1 Judge Ranjeva stated, "On the great
issues of mankind the requirements of positive law and of
ethics make common cause, and nuclear weapons, because of
their destructive effects, are one such issue."2 Human
society has ethical and moral norms based on wisdom,
conscience and practicality. Many norms are universal and
have withstood the test of human experience over long
periods of time. One such principle is that of
reciprocity. It is often called the Golden Rule: "Treat
others as you wish to be treated." It is an ethical and
moral foundation for all the world's major
religions.3
Several modern states sincerely believe that this
principle can be abrogated and security obtained by the
threat of massive destruction. The Canberra Commission
highlighted the impracticality of this posture: "Nuclear
weapons are held by a handful of states which insist that
these weapons provide unique security benefits, and yet
reserve uniquely to themselves the right to own them.
This situation is highly discriminatory and thus
unstable; it cannot be sustained. The possession of
nuclear weapons by any state is a constant stimulus to
other states to acquire them."
The solution can be stated simply: "States should
treat others as they wish to be treated in return."4
It is inconsistent with moral wisdom and practical
common sense for a few states to violate this ancient and
universally valid principle of reciprocity. Such moral
myopia has a corrosive effect on the law which gains its
respect largely through moral coherence. Can global
security be obtained while rejecting wisdom universally
recognized for thousands of years?
Judge Weeramantry said,"(E)quality of all those who
are subject to a legal system is central to its integrity
and legitimacy. So it is with the body of principles
constituting the corpus of international law. Least of
all can there be one law for the powerful and another law
for the rest. No domestic system would accept such a
principle, nor can any international system which is
premised on a concept of equality."5
LAW AND VALUES:
Law is the articulation of values. Values must be
based on moral foundations to have credibility. The
recognition of the intrinsic sacredness of life and the
duty of states and individuals to protect life is a
fundamental characteristic of all human civilized values.
Such civilized values are expressed in humanitarian law
and custom which has an ancient lineage reaching back
thousands of years. "They were worked out in many
civilizations -- Chinese, Indian, Greek, Roman, Japanese,
Islamic, modern European among others." Humanitarian law
" is an ever continuous development…(and) grows as
the sufferings of war keep escalating. With a nuclear
weapon, those sufferings reach a limit situation, beyond
which all else is academic."6
In testimony before the Court, then Foreign Minister
of Australia Gareth Evans said, "The fact remains that
the existence of nuclear weapons as a class of weapons
threatens the whole of civilization. This is not the case
with respect to any class or classes of conventional
weapons. It cannot be consistent with humanity to permit
the existence of a weapon which threatens the very
survival of humanity. The threat of global annihilation
engendered by the existence of such weapons, and the fear
that this has engendered amongst the entire post-war
generation, is itself an evil, as much as nuclear war
itself. If not always at the forefront of our everyday
thinking, the shadow of the mushroom cloud remains on all
our minds. It has pervaded our thoughts about the future,
about our children, about human nature. And it has
pervaded the thoughts of our children themselves, who are
deeply anxious about their future in a world where
nuclear weapons remain."7
We must never forget the awesome destructive power of
these devices. "Nuclear weapons have the potential to
destroy the entire eco system of the planet. Those
already in the world's arsenals have the potential of
destroying life on the planet several times over."8
Not only are they destructive in magnitude but in
horror as well. 9
Notwithstanding this knowledge we permit ourselves to
continue to live in a "kind of suspended sentence. For
half a century now these terrifying weapons of mass
destruction have formed part of the human condition.
Nuclear weapons have entered into all calculations, all
scenarios, all plans. Since Hiroshima, on the morning of
6 August, 1945, fear has gradually become man's first
nature. His life on earth has taken on the aspect of what
the Qur'an calls 'long nocturnal journey', a nightmare
whose end he cannot yet foresee."10
Attempting to obtain ultimate security through the
ultimate weapon, we have failed for, "the proliferation
of nuclear weapons has still not been brought under
control, despite the existence of the Non-Proliferation
Treaty. Fear and folly may still link hands at any moment
to perform a final dance of death. Humanity is all the
more vulnerable today for being capable of mass producing
nuclear missiles."11
As the General Assembly in its "Declaration on the
Prevention of Nuclear Catastrophe" in 1981 said, "all the
horrors of past wars and calamities that have befallen
people would pale in comparison with what is inherent in
the use of nuclear weapons, capable of destroying
civilization on earth."
A five megaton weapon represents greater explosive
power than all the bombs used in World War II and a
twenty megaton bomb more than all the explosives used in
all the wars in history. Several states are currently
poised ready to deliver weapons that render those used in
Hiroshima and Nagasaki small. One megaton bomb represents
the explosive force of approximately seventy Hiroshimas
while a fifteen megaton bomb a thousand Hiroshimas. Judge
Weeramantry emphasized that "the unprecedented magnitude
of its destructive power is only one of the unique
features of the bomb. It is unique in its
uncontainability in both space and time. It is unique as
a source of peril to the human future. It is unique as a
source of continuing danger to human health, even long
after its use. Its infringement of humanitarian law goes
beyond its being a weapon of mass destruction, to reasons
which penetrate far deeper into the core of humanitarian
law."12
We are challenged as never before: technology
continues to slip away from moral guidance and law chases
after common sense.
INTERNATIONAL COURT OF JUSTICE
When the International Court of Justice addressed the
legal status of threat or use of nuclear weapons members
of the nuclear club, which has since grown, asserted a
principled reliance on nuclear weapons. The Court held
that "the threat or use of nuclear weapons would
generally be contrary to the rules of international law
applicable to armed conflict, and in particular the
principles and rules of humanitarian law" and that states
are obligated to bring to a conclusion negotiations on
nuclear disarmament in all its aspects. 13
Did the Court open the way for permissible uses of a
nuclear weapon by saying that is "generally" illegal and
that it could not say that there would never be an attack
on a country that threatened its very existence to which
nuclear weapons would be necessarily an illegal
response?
Did the Court acknowledge that there were conceivably
hypothetically legally compliant uses? It quoted the
United Kingdom's statement that "(I)n some cases, such as
the use of a low yield nuclear weapon against warships on
the high seas or troops in sparsely populated areas it is
possible to envision a nuclear attack which caused
comparatively few civilian casualties."14 However, the
Court further pointed out that no state demonstrated when
even such a limited use would be justifiable or
"feasible."15
The Court had already ruled unanimously that nuclear
weapons must in any and all instances obey humanitarian
laws of war. Can our most basic moral judgments founded
on "dictates of conscience", "elementary considerations
of humanity" which remain "fundamental" and
"intransgressible" be squared with these devices?16 It
seems scarcely reasonable with respect to these
humanitarian legal requirements that they can.17
The Court stated unequivocally that the rules of armed
conflict, including humanitarian law, prohibits the use
of any weapon that is likely to cause unnecessary
suffering to combatants;18 that is incapable of
distinguishing between civilian and military targets;19
that violates principles protecting neutral states (such
as through fall out or nuclear winter);20 that is not a
proportional response to an attack;21 or that does
permanent damage to the environment.22
Under no circumstance may states make civilians the
object of attack nor can they use weapons that are
incapable of distinguishing between civilian and military
targets. Regardless of whether the survival of a state
acting in self defense is at stake, these limitations
continue to hold.
For this reason the President Judge stated in forceful
terms that the Court's inability to go beyond its
statement "can in no manner be interpreted to mean that
it is leaving the door ajar to the recognition of the
legality of the threat or use of nuclear weapons."23 He
emphasized his point by stating that nuclear weapons are
"the ultimate evil, destabilize humanitarian law which is
the law of the lesser evil. Thus the very existence of
nuclear weapons is a great challenge to humanitarian law
itself."24
The Court held that no formal testimony was presented
that nuclear weapons can meet the humanitarian law
requirements for their use.25
The President Judge along with several other judges
undertook to point out the illogic of the situation: "It
would thus be quite foolhardy unhesitatingly to set the
survival of a state above all other considerations, in
particular above the survival of mankind itself."26
The President Judge said, "Atomic warfare and
humanitarian law therefore appear to me mutually
exclusive: the existence of one automatically implies the
non-existence of the other."27 The Court said, "(M)ethods
and means of warfare, which would preclude any
distinction between civilian and military targets, or
which would result in unnecessary suffering to
combatants, are prohibited. In view of the unique
characteristics of nuclear weapons…the use of such
weapons in fact seems scarcely reconcilable with respect
to such requirements."28
Discordance between the incompatibility of these
devices with the requirements of humanitarian law, the
assertion that there could be possible instances in which
their use could be legal and the reliance on the doctrine
of deterrence compelled the Court to seek a resolution:
"the long promised complete nuclear disarmament appears
to be the most appropriate means of achieving that
result."29 The requirements of moral coherence and
ethical conduct and the need for "international law, and
with it the stability of international order which it is
intended to govern,"30 drive the imperative of nuclear
disarmament.
ONGOING PROBLEM
Legal and moral questions continue to loom before us.
We are not faced with nuclear policies founded on a
strategy of dropping depth charges in mid-ocean or bombs
in the desert. What the world faces is nuclear deterrence
with its reliance on the horrific destruction of vast
numbers of innocent people, destruction of the
environment rendering it hostile to generations yet to be
blessed with life.
Deterrence proponents claim that nuclear weapons are
not so much instruments for the waging of war but
political instruments "intended to prevent war by
depriving it of any possible rationale."3 The United
States has boldly argued that because deterrence is
believed to be essential to its international security
that the threat or use of nuclear weapons must therefore
be legal. The United States representative stated: "If
these weapons could not lawfully be used in individual or
collective self defense under any circumstances
(underlying added), there would be no credible threat of
such use in response to aggression and deterrent policies
would be futile and meaningless. In this sense, it is
impossible to separate the policy of deterrence from the
legality of the use of the means of deterrence.
Accordingly, any affirmation of a general prohibition on
the use of nuclear weapons would be directly contrary to
one of the fundamental premises of the national security
policy of each of these many states."32
It is clear that deterrence is designed to threaten
massive destruction which would most certainly violate
numerous principles of humanitarian law. Additionally, it
strikes at generations yet unborn.
Even in the instance of retaliation the moral
absurdity challenges us. As Mexico's Ambassador Sergio
Gonzalez Galvez told the Court, "Torture is not a
permissible response to torture. Nor is mass rape
acceptable retaliation to mass rape. Just as unacceptable
is retaliatory deterrence&emdash;'You burnt my city, I
will burn yours.' "33
Professor Eric David, on behalf of the Solomon
Islands, stated, "If the dispatch of a nuclear weapon
causes a million deaths, retaliation with another nuclear
weapon which will also cause a million deaths will
perhaps protect the sovereignty of the state suffering
the first strike, and will perhaps satisfy the victim's
desire for revenge, but it will not satisfy humanitarian
law, which will have been breached not once but twice;
and two wrongs do not make a right."34
Judge Weeramantry rigorously analyzed deterrence
theory:
1. Intention: "Deterrence needs to carry the
conviction to other parties that there is a real
intention to use those weapons in the event of an attack
by that other party. A game of bluff does not convey that
intention, for it is difficult to persuade another of
one's intention unless one really has that intention.
Deterrence thus consists in a real intention to use such
weapons. If deterrence is to operate, it leaves the world
of make believe and enters the field of seriously
intended military threats."35
2. Deterrence and Mere Possession: "Deterrence is more
than the mere accumulation of weapons in a storehouse. It
means the possession of weapons in a state of readiness
for actual use. This means the linkage of weapons ready
for immediate take off, with a command and control system
geared for immediate action. It means that weapons are
attached to delivery vehicles. It means that personnel
are ready night and day to render them operational at a
moment's notice. There is clearly a vast difference
between weapons stocked in a warehouse and weapons so
ready for immediate action. Mere possession and
deterrence are thus concepts which are clearly
distinguishable from each other."36
For deterrence to work one must have the resolve to
cause the resulting damage and devastation.
Is deterrence limited to depth charges in the ocean or
strikes in the desert? Are we willing to permit global
security to rely on a bluff? If it is not a lie but a
resolve to be willing to destroy all, are we not reducing
humanitarian law to being a mere servant of raw power? Is
not the very definition of lawlessness when might claims
to make right?
While deterrence continues to place all life on the
planet in a precarious position of high risk, one must
wonder whether it provides any possible security against
accidental or unauthorized launches, computer error,
irrational rogue actions, terrorist attack, criminal
syndicate utilization of weapons and other irrational and
unpredictable, but likely, scenarios.
Did the Court undermine the continued legitimacy of
deterrence? The Court stated clearly that "if the use of
force itself in a given case is illegal&emdash;for
whatever reason&emdash;the threat to use such force will
likewise be illegal."37
The moral position of the nuclear weapons states is
essentially that the threat to commit an illegal
act&emdash;massive destruction of innocent
people&emdash;is legal because it is so horrible to
contemplate that it ensures the peace. Thus the argument
is that the threat of committing that which is patently
illegal is made legal by its own intrinsic illogic. Does
this engender moral coherence in the youth of the world
to whom we must argue that violence and the threat of
violence in daily life does not bring human
fulfillment?
An unambiguous political commitment by the nuclear
weapon states to the elimination of nuclear weapons
evidenced by unambiguous immediate pledges never to use
them first as well as placing the weapons in a de-alerted
posture pending their ultimate elimination will promptly
evidence the good faith efforts by the nuclear weapon
states to reduce our collective risks. These steps
increase our collective security, but are hardly enough
to meet the clear decision of the court and the dictates
of reason. Only commencement in good faith of
multilateral negotiations leading to elimination of these
devices will bring law, morals, ethics and reason into
coherence. Only then will we be able to tell our children
that ultimate violence will not bring ultimate security,
a culture of peace based on law, reason and values
will.
CONCLUSION
We are heartened by the level of cooperation
articulated in the integrated human security agendas that
emerged from the world summits of the 1990's which
addressed our common environmental and human security
concerns. However, it must be pointed out that to fulfill
the commitments made at these summits a new level of
cooperation is required. It is appropriate, therefore,
that the United Nations has declared the first ten years
of the 21st century as dedicated to the creation of a
Culture of Peace. That Culture of Peace will require a
pattern in which trust, respect and transparency will
breed disarmament and reverse the pattern of fear and
threat which have continued to justify irrational levels
of armaments. According to the Brookings Institute the
U.S. alone has spent 5.8 trillion on nuclear arms since
1940.38 General Dwight D. Eisenhower said, "Every gun
that is made, every warship launched, every rocket fired
signifies, in the final sense, a theft from those who
hunger and are not fed, those who are cold and are not
clothed. The world in arms is not spending money on arms
alone. It is spending the sweat of its laborers, the
genius of its scientists and the hopes of its
children."
The moral experience of shame has been placed in us
along with the moral sensibility of revulsion. What right
do we have to organize ourselves such that we might give
human beings the Sophie's choice of ending all life on
the planet in order to save a human creation, the state.
As General Omar Bradley stated, "We live in an age of
nuclear giants and ethical infants, in a world that has
achieved brilliance without wisdom, power without
conscience. We have solved the mystery of the atom and
forgotten the lessons of the Sermon on the Mount. We know
more about war than we know about peace, more about dying
than we know about living."
It is time that we took bold moves to change the moral
incoherence of the 20th century for it is now time in
which statesmen must delve deep into themselves and
become men in a state of grace. Let us grasp this moment
of hazard and opportunity with our full humanity.
Ultimate hazard and horror is our future if we let it
slip away; opportunity to lead the world in fulfilling
nothing less than an ultimate moral imperative -- nuclear
disarmament -- is ours if we meet the challenge. This is
a long journey that must take us from fear and
incoherence into reason and moral coherence. Let it truly
begin with us today.
Thank you.
FOOTNOTES
1 Legality of the Threat or Use of Nuclear Weapons,
General List No. 95 (Advisory Opinion of the
International Court of Justice of July 8, 1996). Unless
otherwise noted, references are to this opinion, which
was requested by the General Assembly. The historic
importance of this decision cannot be overemphasized for
it is the first judicial analysis of the issue by this
international tribunal even though the first General
Assembly Resolution, unanimously adopted January 24, 1946
at the London session, called for elimination of atomic
weapons.
2 Opinion of Judge Ranjeva, para. 105(2)E1.
3 Buddhism: "Hurt not others in ways that you yourself
would find hurtful." Udana-Varga, 5:18; Christianity:
"All things whatsoever you would that men should do to
you, do you even so to them." Matthew 7:12; Confucianism:
"Do not unto others what you would not have them do unto
you." Analects 15:23; Hinduism: "This is the sum of duty:
do not unto others which would cause you pain if done to
you." Mahabharata 5:1517; Islam: "No one of you is a
believer until he desires for his brother that which he
desires for himself." Hadith; Jainism: "In happiness and
suffering, in joy and grief, we should regard all
creatures as we regard our own self." Lord Mahavir 24th
Tirthankara; Judaism: "What is hateful to you, do not do
to your fellow man. That is the law; all the rest is
commentary." Talmud, Shabbat 31a; Zoroastrianism: "That
nature only is good when it shall not do unto another
whatsoever is not good for its own self."
Dadistan-I-Dinik, 94:5.
4 See, excellent analysis, "Ethics of Abolition" in
Douglas Roche's Unacceptable Risk, Nuclear Age Peace
Foundation, 1995, p.90.
5 Opinion of Judge Weeramantry, V4.
6 Ibid. I 5.
7 Gareth Evans of Australia, verbatum record, 30
October, 1995, pp. 44-45, 49.
8 Opinion of Judge Weeramantry, II 3(a).
9
"1.Nuclear weapons cause death and
destruction; induced cancers, leukemia, keloids and
related afflictions;
2. cause gastrointestinal, cardiovascular and related
afflictions; continued for decades after their use to
induce the health related problems mentioned
above;
3. damage the environmental rights of future
generations;
4. cause congenital deformities, mental retardation
and genetic damage;
5. carry the potential to cause a nuclear winter;
6. contaminate and destroy the food chain;
7. imperil the eco system;
8. produce lethal levels of heat and blast;
9. produce radiation and radioactive fallout;
10. produce a disruptive electromagnetic pulse;
11. produce social disintegration;
12. imperil all civilizations;
13. threaten human survival;
14. wreak cultural devastation;
15. span a time range of thousands of years;
16. threaten all life on the planet;
17. irreversibly damage the rights of future
generations;
18. exterminate civilian population;
19. damage neighboring states;
20. produce psychological stress and fear
syndromes--as no other weapons do" Opinion of J,
Ibid. para. II 4.
10 Opinion of President Judge Bedjaoui, para. 2.
11 Ibid. para. 5.
12 Opinion of Judge Weeramantry II para. 3.
13 "THE COURT:
(1) By thirteen votes to one, Decides to
comply with the request for an advisory opinion;
IN FAVOUR: President Bedjaoui; Vice-President
Schwebel; Judges Guillaume, Shahabuddeen, Weeramantry,
Ranjeva, Herczegh, Shi, Fleischhauer, Koroma,
Vereshchetin, Ferrari Bravo, Higgins;AGAINST: Judge
Oda.
(2) Replies in the following manner to the question
put by the General Assembly:
A. Unanimously, There is in neither customary nor
conventional international law any specific
authorization of the threat or use of nuclear
weapons;
B. By eleven votes to three, There is in neither
customary nor conventional international law any
comprehensive and universal prohibition of the threat
or use of nuclear weapons as such;
IN FAVOUR: President Bedjaoui; Vice-President
Schwebel; Judges Oda, Guillaume, Ranjeva, Herczegh,
Shi, Fleischhauer, Vereshchetin, Ferrari Bravo,
Higgins;
AGAINST: Judges Shahabuddeen, Weeramantry,
Koroma.
C. Unanimously, A threat or use of force by means
of nuclear weapons that is contrary to Article 2,
paragraph 4, of the United Nations Charter and that
fails to meet all the requirements of Article 51, is
unlawful;
D. Unanimously, A threat or use of nuclear weapons
should also be compatible with the requirements of the
international law applicable in armed conflict
particularly those of the principles and rules of
international humanitarian law, as well as with
specific obligations under treaties and other
undertakings which expressly deal with nuclear
weapons;
E. By seven votes to seven, by the President's
casting vote,
It follows from the above-mentioned requirements
that the threat or use of nuclear weapons would
generally be contrary to the rules of international
law applicable in armed conflict, and in particular
the principles and rules of humanitarian law; However,
in view of the current state of international law, and
of the elements of fact at its disposal, the Court
cannot conclude definitively whether the threat or use
of nuclear weapons would be lawful or unlawful in an
extreme circumstance of self-defense, in which the
very survival of a State would be at stake;
IN FAVOUR: President Bedjaoui; Judges Ranjeva,
Herczegh, Shi, Fleischhauer, Vereshchetin, Ferrari
Bravo; AGAINST: Vice-President Schwebel; Judges Oda,
Guillaume, Shahabuddeen, Weeramantry, Koroma,
Higgins.
F. Unanimously, 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." Para.105.
For full opinion and commentary, See, Ann Fagan
Ginger, ed. Nuclear Weapons Are Illegal: The Historic
Opinion of the World Court and How It Will Be
Enforced, Apex Press, New York, 1998; For analysis
with excellent bibliography on the opinion, See, John
Burroughs, The (Il)legality of Threat or Use of
Nuclear Weapons, A Guide to the Historic Opinion of
the International Court of Justice, Munster, London,
1997; For opinion available at cost from UN (document
A/51/218, 15 October 1996), UN Publications, 2 UN
Plaza, DC2-853, NY, NY 10017, 212-963-8302; Also,
available at International Association of Lawyers
Against Nuclear Arms (IALANA) website
http://www.ddh.nl/org/ialana
14 Para. 91.
15 Para. 94.
16 Paras. 78-79.
17 Para. 95.
18 Paras. 78, see paras. 92,95.
19 Paras 78, 95
20 Para. 78.
21 Ibid.
22 Paras. 32, 33, 35.
23 Opinion of President Judge Bedjaoui, para. 20.
24 Ibid. 23
25 Paras.94-95, see para. 91.
26 Opinion of President Bedjaoui, para. 22.
27 Ibid. para 20.
28 Para. 95
29 Para. 98
30 Ibid.
31 Marc Perrinde Brichambaut, France, Verbatim record
(trans.) 1 November, 1995, page 33.
32 Michael Matheson, US, Verbatim record, 15 November,
1995, p. 78.
33 Verbatim record, 3 November 1995, p. 64.
34 Verbatim record, (trans.), 14 November, 1995, p.
45.
35 Opinion of Judge Weeramantry, VII 2(v).
36 Ibid.
37 Para. 47.
38 Washington Post, July 1, 1998.
About this article
It is an NGO Presentation for the Nuclear Non
Proliferation Treaty Prepcom of 1999 and The Hague Appeal
for Peace addressing nuclear weapons, morals, ethics,
spiritual values, the Culture of Peace, and law.
Organizations participating in creation of this
presentation include NGO Committee on Disarmament, World
Conference on Religion and Peace, Temple of
Understanding, Pax Christi International, Franciscans
International, Interfaith Center of New York, State of
the World Forum, and Lawyers Alliance for World
Security.
Convenor:
MYRNA PENA, World Conference on Religion and Peace ,
777 U.N. Plaza, 9th floor, NY, NY
10017,tel1.212.687.2163;fax1.212.983.0566;mpena@wcrp.org
Drafter and presenter:
JONATHAN GRANOFF, Lawyers Alliance for World Security,
Temple of Understanding, State of the World Forum, #300,
One Belmont Ave., Bala Cynwyd, Pa. 19004 tel.
1.610.668.5470;fax 1.610.668.5455; jgg786@aol.com
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