‘Mini nuke strikes’ and the ICJ advisory opinion

By Myint Zan, Jordan Times, Friday-Saturday 15–16 August 2003

A RECENT BBC news item stated that the United States government is contemplating the development and potential use of ‘mini nukes’ whereby “many buried targets could be attacked using a (nuclear) weapon with a much lower yield than would be required (if) a surface based (nuclear) weapon was used.” This news item appeared around the time of the 58th anniversary of the dropping of the first nuclear bombs on the Japanese cities of Hiroshima and Nagasaki which led to the deaths of over 110,000 people. According to the BBC report this scenario or option of using ‘mini-nukes’ was being raised in a conference that was recently held at StratCom, the headquarters of US Strategic Command in Nebraska.

On July 8, 1996 the International Court of Justice (ICJ) gave an ‘advisory opinion’ on the issue of legality of the threat or the use of nuclear weapons. The advisory opinion was sought by the United Nations General Assembly which requested the ICJ to give its opinion as to whether the threat or the use of nuclear weapons is comprehensively prohibited in contemporary international law.

The ICJ by a majority decided that such threats or uses of nuclear weapons are ‘generally’ unlawful. However, in an important proviso the ICJ stated to the effect that it was “unable to determine under the prevailing circumstances and with the resources (concerning international law) at its disposal, whether there is or is not a prohibition against the use of nuclear weapons when the very existence of a state is threatened.”

‘Cold comfort’ can be taken from the ICJ proviso and its frank admission that it was unable to decide whether international law mandates the avoidance of the threat or use of nuclear weapons even in a case where the “very existence” of a state is threatened. Arguably, this aspect of the ICJ advisory opinion could theoretically facilitate a state to justify its putative use—God forbid one should add—or threat to use, nuclear weapons on the grounds that its “very survival” is at stake.

It might be argued that even postulating a scenario whereby a state, relying on this aspect of the ICJ advisory opinion, justifies its putative threat or actual use of nuclear weapons is “alarmist.” (Strange as it may seem, though there are international treaties that prohibit states from testing or “proliferating” nuclear weapons there is not a formal treaty which specifically prohibits the use of nuclear weapons.)

How does one determine the fact that the “very” existence of a state is threatened? Would, say, Kuwait—if it had nuclear weapons—have used them against invading Iraqi troops in August 1990 when Iraq invaded Kuwait? Would the previous Iraqi government of Saddam Hussein itself— if it has the yet-to-be-discovered weapons of mass destruction including nuclear weapons—have used them against the invading ‘coalition troops’ under the same rationale? Would Israel have been justified to use nuclear weapons in the 1973 Yom Kippur war if the tide of the war had not changed and Egyptian and Syrian troops continued to make further advances to recover occupied Arab lands? Under this aspect of the ICJ advisory opinion would the United States have been justified to use nuclear weapons against Cuba in the October 1962 “Cuban Missile Crisis” if the Soviet Union did not withdraw its missiles from Cuba? Luckily in all these past historical instances the question was “academic” in that no nuclear weapons were used. Still, in the 1962 Cuban crisis there was at least an implicit threat that they might had been used if the Soviet Union did not accede to the late President Kennedy's demands that the Soviets immediately removed their missiles from Cuba.

The current Bush administration does not seem to have been bothered to check or “verify” whether its contemplated use of mini-nukes perhaps as a “preemptive strike” against underground targets is ‘legal’ or not.

As with many other actions of the current Bush administration, Sept. 11 seems to have given the legal and even the moral justification (for the Bush coterie) for launching mini-nukes against potential (underground) targets. Extrapolating the advisory opinion that was given by the ICJ in 1996 can we hypothetically justify the use of (mini) nukes by the United States, say, in Afghanistan if the Taleban had proved to be a much tougher nut to crack? If the US used even mini-nukes in Afghanistan could it have justified it legally by reference to the 1996 advisory opinion?

Arguably, the attacks in the United States on Sept. 11, did amount to, in a certain sense, an armed attack since no armies or aeroplanes crossed borders, and they were non-state actors—such as the Afghanistan-based Osama Ben Laden and his Al Qaeda network which initiated the attacks of Sept. 11. But could the United States have claimed that its existence as a state was threatened as a result of those attacks to justify the use of mini nuclear weapons? Even in a future hypothetical scenario if there is evidence, say by Al Qaeda operatives to launch another Sept. 11 type attack, could the US use mini-nukes against say an underground Al Qaeda network? Or in such a hypothetical case would the hypothetical use of nuclear weapons fall within the first limb of the 1996 ICJ advisory opinion in that they would be generally unlawful since the (United States) existence as a state had not been threatened?

These questions for the time being remain theoretical. Yet it would not be inapposite to claim that events in the intervening years—since the ICJ gave the advisory opinion in 1996—have developed to the extent that we cannot for ever take for granted that the above and other uncontemplated scenarios would always remain as theoretical conundrums. A pessimist, perhaps alarmist, view is to claim that the ICJ in its advisory opinion has provided a potentially dangerous legal loophole for states to justify the threat, if not the actual use, of nuclear weapons.

All persons who care for the welfare of fellow humans must fervently hope that the possibility of the use of nuclear weapons will always remain (merely) as a theoretical conundrum. And those governments and persons in positions of power must also do all they can to see to it that the issue of the use of nuclear weapons continues to remain theoretical.