This analysis builds on Government replies to the stream of letters from World Court Project UK (WCP UK) supporters, Parliamentary Questions, and other attempts to engage the authorities on the legal status of Trident. The Government statements and letters tend to be very repetitive, so only a fraction of the material has been reproduced here.
Bringing the sources together in one place should be useful for those working in the area of international law and nuclear weapons as it relates to the UK, especially if they are preparing for court appearances. It can be used to show that the authorities have repeatedly been informed of our concerns and that they have not succeeded in showing that Trident could ever be used without running a grave risk of contravening International Humanitarian Law.
The analysis consists of quotes from government material with commentary in italics. Often only parts of documents have been reproduced. The original sources can be seen on request.
Strategic Defence Review 8 July 1998, (SDR) para 62:
"Trident is our only nuclear weapon. We need to ensure that it can remain an effective deterrent for up to 30 years. This is why we need a force of four Trident submarines."
… the Government seems to envisage nuclear deterrence persisting until at least 2028.
SDR Supporting Essay "Deterrence, Arms Control, and Proliferation", para 14:
"...it would be premature to abandon a minimum capability to design and produce a successor to Trident should this prove necessary."
This suggests that the government sees no real possibility of a world free of nuclear weapons.
SDR Supporting Essay "Deterrence, Arms Control and Proliferation"?, para 13
"Consideration was given to more radical de-alerting measures, such as taking submarines off deterrent patrol, and removing warheads from their missiles and storing them separately ashore. Our work concluded, however, that neither step would be compatible in current circumstances with maintaining a credible minimum deterrent with a submarine-based nuclear system."
One World Court Project supporter pointed out: "The fate of humanity and possibly all life on Earth is therefore to be risked for this, the final, intransgressible justification for maintaining nuclear arsenals."
This is certainly at odds with the International Court of Justice (ICJ) Advisory Opinion, 8 July 1996 Para 105 F: "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." It sits ill with the promises the UK made when it accepted the Programme of Action at the NPT Review Conference in May 2000 and voted for the New Agenda Resolution in November 2000.
George Robertson, then Secretary of State for Defence, letter to Austin Mitchell MP, 23 August 1999:
"Thank you for your letter of 22 July 1999 requesting a meeting to discuss the legality of Trident. I am afraid that such a meeting would serve little purpose. We have repeatedly made our position clear. We do not consider the possession or use of nuclear weapons as such to be illegal. Nor does our position conflict with the Opinion of the International Court of Justice. If the Court had thought that it was impossible to use nuclear weapons in accordance with international law, it would have said so..."
The delegation would have consisted of three Members of Parliament and Lord Murray, a former Lord Advocate of Scotland. There is a complete refusal to discuss the matter, even with very well-informed and distinguished people, and with no real reason given - only bald assertions.
Stephen Willmer, Ministry of Defence, letter to Angie Zelter, 2 March 2000:
"The threshold for legitimate use of nuclear weapons clearly is, and should be, a very high one. ... However, an action that is legal in one set of circumstances can be illegal in different circumstances. The Government continues to believe that there is no useful benefit to be gained from hypothetical speculation on where precisely the dividing line would lie. Nor does the Government believe that any conceptual planning on potential use of nuclear weapons carried out by the Ministry of Defence can reasonably be made open to public scrutiny. Secrecy in this area plays an important part in enabling the United Kingdom to maintain a credible minimum deterrent capability at the lowest possible level."
The paragraph suggests that the "conceptual planning" involves legal criteria; and that these legal criteria themselves cannot be disclosed because they are essential to deterrence. So the legal thinking is classified as well. How can courts operate correctly under such restrictions? How can Trident resisters know the limits of the law? This suspicion is confirmed by an earlier Parliamentary exchange which follows.
Legality of Nuclear Weapons, 17 November - 21 December 1999, House of Commons, Written Questions, 13 Dec 1999 : Column: 30W, Nuclear Deterrence Policy:
Mr. Tony Benn: To ask the Solicitor-General what advice he has sought on the legality of British nuclear deterrence policy.
The Solicitor-General: ... As a matter of convention (observed by successive Governments) neither the substance of the Law Officers' advice on a question, nor the fact that they have been consulted, is disclosed outside Government, other than in exceptional circumstances.
Douglas Henderson, Minister of State for the Armed Forces, letter to Nigel Waterson MP, in response to a letter from Leslie Dalton, 1 June 1999:
"... We are confident that the Opinion does not require a change in the UK'?s or NATO's entirely defensive nuclear deterrence policy. It follows that those who operate Trident submarines are acting legally under the Nuremberg Principles.
Any decision on the use of UK nuclear weapons would always be taken centrally by Ministers. Legal advice from the Government's legal advisers was available to Ministers and senior officers and officials in considering within the Strategic Defence Review (SDR) the nuclear options we might need to have available to maintain a credible minimum deterrent throughout the life of Trident. Legal advice would also be available to Ministers if circumstances were extreme enough for us ever to have to consider the use of nuclear weapons to defend ourselves from attack. We are satisfied that our arrangements to ensure informed legal advice in such circumstances are fully adequate. …"
We have not been been told what legal advice was given for the SDR. The idea that considered legal advice would be available during a nuclear crisis beggars belief.
Alan Hughes, Ministry of Defence, letter to Sister Mary Lampard, 26 June 2000:
"... As regards the yield of Trident nuclear warheads the Government's position is not to comment. Such information is classified. ..."
The legal status of Trident depends on its effects and therefore its yield. Classified information is one more way of avoiding the legal issue.
10 January 2000 House of Commons, Written Questions, Legality of Nuclear Weapons:
Mr. Corbyn: To ask the Secretary of State for Defence (1) what assessment his Department has carried out of the long-term effects of a 100 kiloton Trident on a military target; (2) what assessment his Department has carried out of the effects of a 100 kiloton Trident warhead detonation on the civilian population living near military targets.
Mr. Hoon: The Trident missiles on which our nuclear deterrent is based have been de-targeted since 1994. Our judgment of the minimum level of deterrence required is supported by comprehensive computer modelling which enables us to assess the effects of nuclear detonations. A number of factors are taken into account in this assessment. As Lord Robertson made clear to my hon. Friend the Member for Newport, West (Mr. Flynn) on 4 February 1998, Official Report, column 655W, these include the yield and design of the weapon used; the accuracy of the delivery system employed; the nature and construction of the target; the characteristics of the surrounding terrain; the height of the detonation; and geological and weather conditions. I am withholding information on UK nuclear warhead yield under Exemption 1 of the Code of Practice on Access to Government Information, relating to defence, security and international relations.
The "number of factors taken into account in this assessment" do not include the likely effects on the civilian population. Without this, and the fact that information on Trident's yield is withheld, neither we, nor the government lawyers, can make a legal assessment of any likely use.
Fax from George Farebrother to Christopher Donnelly, Procurator Fiscal,
Dumbarton, 3 March 1999
"As a member of a group representing Trident Ploughshares 2000 I had a long conversation with Superintendent Wylie at Police Headquarters in Dumbarton last August. We discussed a Citizens' ... As a result he undertook to bring the document to your attention. You should have received this late in August or in early September. ...
Would you be kind enough to confirm that you received this document and whether you decided to act on it? This confirmation is needed urgently by defendants preparing their court cases. I look forward to your early reply ..."
Fax from George Farebrother to Christopher Donnelly, Procurator Fiscal, Dumbarton, 6 June 1999
"Dear Christopher Donnelly
Following is a copy of a fax I sent you on 18 March 1999. That was more than three months ago. I have still not received a reply. I feel that you have now had time to consider the matter thoroughly and would appreciate your comments."
Letter from Christopher Donnelly, Procurator Fiscal, Dumbarton, to George Farebrother 6 July 1999
"Dear Sir
I refer to your letters of 18 March and 28 June 1999, which I have seen. I have no comment to make on the matters referred to therein."
Considerable trouble was taken to inform the authorities of our concerns through the correct channels. The response was insulting.
From Alastair Merrill, Deputy Director of the Private Office of the Secretary General, NATO, to Angie Zelter, 13 November 1997
"Thank you for your Letter dated l2 October 1997.
As I explained to you during our meeting last August, NATO, as an intergovernmental organization, is composed of 16 sovereign States. Within the cooperative framework of NATO, the member States of the Alliance, as sovereign States, decide collectively on their defence policy, which includes the policy of nuclear deterrence.
NATO's strategy is set out in the Alliance's Strategic Concept approved by the member States in Rome in November 1991. The core of that strategy is to preserve peace and prevent any kind of war. Nuclear weapons play an essential role in this.
The Advisory Opinion of the International Court of Justice has no bearing on NATO's Strategic Concept. Consequently, neither NATO nor any of its staff members is involved in any illegal activity through implementing the Alliance's policies. ..".
Several letters have been written to NATO. The above reply is typical in that it only makes simple assertions, and refuses to engage in detailed argument.
Stephen Parkinson, Attorney General's Office, letter to Andrew Gray, 7 January 2000:
"... The Attorney General does not share your view that legal questions have been raised about nuclear weapons in general, or the Trident system in particular, such as to justify investigation. The Government are confident that the UK's minimum nuclear deterrent is compatible with its obligations under international law."
This is the only known letter from the Attorney General's office. It is another in the long series of simple assertions that Trident is legal. Legal questions certainly have been raised - not just by World Court Project UK, but by several learned scholars.
Stephen Willmer, Ministry of Defence, letter to Geoffrey Carnall, 15 December 1999</p>
"... The Government agrees entirely with the Court that a threat or use of force by means of nuclear weapons that is contrary to Article 2(4) of the UN Charter and that fails to meet all the requirements of Article 51 is unlawful. Article 2(4) prohibits any use of force in a manner inconsistent with the Purposes of the United Nations. ...
... Additionally, as the Court made clear, and as the United Kingdom argued in its evidence to the Court, the principles and rules of international humanitarian law apply to nuclear weapons, as they do to all weapons. ...
... The Government has made it clear that the United Kingdom would only consider using nuclear weapons in self-defence and in extreme circumstances, and subject to the rules of international law, and humanitarian law, applicable in armed conflict. ...
... However, the legality of any specific threat or use of force, including with nuclear weapons, can only be determined in the light of all the circumstances applying at the time, It is impossible to anticipate in advance with any confidence the exact circumstances which might arise, and the Government does not believe that speculation on particular hypothetical uses serves any useful purpose..."
This is the fullest explanation we have seen in a letter of the Government's legal position. The refusal to speculate on the "exact circumstances" is a constant theme in the letters.
However, in the main it adopts a similar position to that of World Court Project UK and Trident Ploughshares - that nuclear weapons are subject to humanitarian law and that humanitarian law applies in all circumstances - that it is intransgressible.
Therefore the Government must accept our view that the Opinion, (paras 86, 105, 2D) confirms that weapons which could not distinguish between civilian and military targets, would be unlawful (paras 86, 105, 2D); and that even if a nuclear response were proportionate to a threat or attack, it would still have to meet the requirements of humanitarian law (para 42).
But there is a yawning gap. Nowhere is it explained how Trident could ever meet this exacting test.
Legality of Nuclear Weapons, 10 January 2000, House of Commons, Written Questions, Nuclear Weapons:
Mr Hoon ... The relevant section on nuclear weapons (of the Law of Armed Conflict for the Armed Services) ... reads:
"There is no specific rule of international law, express or implied, which prohibits the use of nuclear weapons. The legality of their use depends upon the application of the general rules of international law, including those regulating the inherent right of self-defence and the conduct of hostilities. Those rules cannot be applied in isolation from any factual context to imply a prohibition of a general nature. Whether the use, or threatened use, of nuclear weapons in a particular case is lawful depends on all the circumstances. Nuclear weapons fall to be dealt with by reference to the same general principles as apply to conventional weapons...."
Professor Francis Boyle comments: "…this language is helpful. At least we can use it in any future anti-nuclear protest case in the UK. We would simply take the UK government statement at its word, and contextualize the particular nuclear weapons system in dispute. This is exactly what we successfully did at Greenock. We did not argue the illegality of nuclear weapons as an abstract proposition. Rather, we argued that the particular characteristics of the Trident 2 (targeting strategy, destructive power, casualties, deployment, command and control, etc.) made it criminal under international law".Peter Weiss (US Co-President, International Association of Lawyers Against Nuclear Arms points out: " ... in articles 35 & 36 of the Opinion reference is made to the 'unique characteristics of nuclear weapons', which 'render the nuclear weapon potentially catastrophic' because, inter alia, its enormous destructive power 'cannot be contained in either space or time'.
The third sub paragraph of par. 35 deals with the effects of the radiation released by nuclear weapons on 'health, agriculture, natural resources and demography over a wide area.' 'Ionizing radiation', the Court says in this passage, 'has the potential to damage the future environment, food and marine ecosystems, and to cause genetic defects and illnesses in future generations.' All of this would clearly be applicable to Trident 2 if anything were known about its characteristics."
John Spellar, Minister of State at the Ministry of Defence, letter to Alan Keen MP, in response to a letter from Joanna Bazley, 27 July 2000:
"... In fact, the ICJ confirmed that the legality of the threat of use, or use, of nuclear weapons is governed by the same laws of war as determine the legality of any other form of weapons not specifically prohibited under international law. Such legality can only be determined in the light of the specific circumstances applying when such threat of use, or actual use, is being considered as an action that is legal in one set of circumstances may be illegal in different circumstances.
The Government continues to believe that there is no useful benefit to be gained from hypothetical speculation on where precisely the dividing line might lie between circumstances where use is legal and those were it would be illegal. ...
In light of the ICJ's Advisory Opinion, the Government continues to believe that its minimum nuclear deterrent is entirely consistent with international law. A public enquiry is therefore not necessary."
Note that the Government uses the ICJ Opinion to argue its own case at the beginning and end. This approach is repeated in several letters and statements. We therefore do not need to argue for the authority of the Opinion: the Government has done it for us.
However, two important issues are being evaded. The response misses the point. The government has never been asked for "hypothetical speculation", but for general legal guidelines. It has not been asked to explain the legality of "nuclear weapons" in general, but of Trident in particular.
The Government claims that the UK Trident system has a sub-strategic role, in which some missiles are fitted with maybe only a single, lower yield warhead.
Letter from C H J Davies, Ministry of Defence, letter to Liz Waterston, 27 October 1998:
"... A sub-strategic capability is an essential element in ensuring that no nuclear-armed aggressor could gamble on us being self-deterred from crossing the nuclear threshold in extreme circumstances of self-defence by fear of an inevitable strategic exchange. In such circumstances this capability would allow the limited use of nuclear weapons to send an aggressor a political message of the Alliance's resolve to defend itself. The UK has a degree of flexibility in the choice of yield for the warheads on its Trident missiles".
Even a yield of "only" 1 kiloton or thereabouts is an enormous explosion, equivalent to about 35 container trucks of TNT parked outside a busy court. It would be more devastating than the attack on the World Trade Centre. This would still spread lethal radiation and cause indiscriminate deaths.
However, the main point to make is that even if the Trident warheads can be used in this way, they are still capable of yielding 100 kilotons and are therefore subject to the legal arguments applying to such monsters of destruction.
Geoffrey Hoon, Minister of Defence, letter to Lord Murray, 3 November 1999:
"... At the same time, we are working to remove the risk of the proliferation of nuclear, biological and chemical weapons worldwide, while maintaining a robust defensive capability to protect British interests in the event of their use. We would only ever use our nuclear weapons in self-defence and in extreme circumstances."
There are many questions here. The claim is that the UK's nuclear weapons are only for use in extreme circumstances. What these consist of is never made clear. Yet the paragraph implies that they could be used to deter chemical or biological threats, or even to protect British "interests" - far short of the "extreme circumstances" mentioned, and certainly disproportionate. The government refuses to clarify this, in spite of repeated requests to do so. It has never defined exactly what is meant by "British interests".
Recent correspondence develops previous themes in greater depth, learning from our experience of questioning and letter writing. It takes general agreement on International Humanitarian Law for granted but discusses the application systematically.
On 14 March 2001 George Farebrother wrote to the Minister of State for the Armed Forces asking for comments on a paper he had written, "Nuclear Weapons, Uncertainty and the Law". This can be found on the World Court Project UK Web Site http://www.gn.apc.org/wcp
The main points it raises are:
· Our discussion should be about the Legality of Trident in particular as opposed to that of nuclear weapons in general. Only the latter was dealt with in US and UK evidence before the ICJ in 1996.
· There was a request for evidence of assessment by HMG of the risk of violating law if Trident were ever used ; and of their response to the view that an enormous consequence should demand a policy with virtually no risk. The idea that use of Nuclear weapons must "certainly" violate the law, used by the UK and the US at the ICJ was contested.
· There was also a request for the criteria by which military necessity and civilian suffering are to be balanced if a decision to use Trident ever has to be made. This is not a legal question. The law only says that there has to be such a balance. It is not asking for "hypothetical speculation"? but for the balance of values which must come into play, and which should be available to us now.
Kevin Pollard, Directorate of Nuclear Policy, Ministry of Defence, to George Farebrother, 10 May 2001
"... In your paper you argue that in order to be satisfied that the UK is complying with Customary International Law (CIL) in retaining a defensive minimum nuclear deterrent, it is incumbent upon the Government to set out the circumstances under which it would be considered lawful to use, or threaten to use nuclear weapons, by reference to detailed information about the Trident nuclear weapons system such as yield, accuracy and effect. It is, however, our policy to withhold such operational information in the interests of national security. ...
You ask why the Government declines to disclose the legal criteria governing the possible use of Trident. The criteria against which the Government would assess the legality of the use or threat of use of any weapon are those prescribed by international law. Therefore, there is no question that the Government withholds information about the legal constraints on the threat or use of nuclear weapons. These are to be found within the framework of CIL. You refer to the l996 ICJ Advisory Opinion in your paper. This found that there is no comprehensive and universal prohibition of the threat or use of nuclear weapons under international law.
We, therefore, continue to believe that there is no useful benefit to be gained from speculation about where, precisely, any dividing line might lie between circumstances where, within the rules of CIL, a proposed use would be legal and those where it would not. ...
... In conclusion, therefore, we do not consider that the legality of the threat of use or use of Trident is open to legal doubt, and remain confident that our minimum, defensive nuclear deterrent is consistent with our obligations under International Law. ..."
The response does not remotely address the issues raised by George Farebrother. He therefore wrote again, pointing out that the "rules of engagement" for the use of Trident were based on values analogous to those addressed in medical ethics and should therefore not be secret. How we balance the value of "collateral damage" against military necessity is of the utmost importance.
Kevin Pollard, Directorate of Nuclear Policy, Ministry of Defence, to George Farebrother, 5 October 2001
"... As your letter makes clear, the debate over the legality of nuclear weapons has involved much complex argument. However, the key question for the Government is whether its deployment of Trident as a minimum nuclear deterrent is consistent with its obligations under international law. I should, therefore, like to remind you that the I996 ICJ Advisory Opinion did not decide that possession and deployment of nuclear weapons is unlawful, nor has any UK court suggested that to be the case.
As the High Court has made clear, the legality of the threat or use of nuclear weapons will depend on the circumstances. This draws on the I996 ICJ Advisory Opinion, and reflects the Government position on the matter which I set out in my last letter (in relation to this I would, in particular, draw your attention to the excerpt of the passage above which I have placed in bold type). I cannot, therefore, accept your argument that UK Trident is "inevitably indiscriminate", or your assertion that either I or the High Court agree with this argument.
... You asked specifically for comments on the Risk Assessment section of your paper "Nuclear Weapons, Uncertainty and the Law". This relates to your points about our withholding information about the operational details of Trident. The kind of information which you have requested could be useful to those who may wish to pose a threat to the UK and its vital interests. Moreover, a key element of our policy of deterrence is to maintain uncertainty in the minds of potential adversaries about our precise capability and the circumstances in which we would consider its use. I can, however, assure you that we have stringent safeguards in place to prevent nuclear accidents. The UK has operated a nuclear deterrent since the mid-1950s. In that time, there has never been a nuclear weapon accident resulting in the release of radioactive material; there has never been damage to a weapon which risked radioactive leak or explosion and there has never been a nuclear weapon lost. ..."
Again, the letters completely miss the points raised in my letters:
· the last letter from Kevin Pollard refers to nuclear accidents, not the risk of violating the law in a nuclear strike,
· it repeats the argument that "hypothetical speculation" is not useful, in spite of the fact that it was the ground rules for applying the legal criteria, and not the legal criteria themselves, which were being asked for,
· it argues against general illegality of Nuclear Weapons, which I had said very strongly was NOT our argument,
· it takes a quotation I used from the Scottish High Court that Trident is "?inevitably indiscriminate" as if it were my own,
· it confuses operational secrecy with my questioning of secrecy about the principles based on value which should underpin the application of the law.
· it provides a summary of the outcome of the Lord Advocate's Reference which had not been asked and was not relevant to the questions I raised.
On 25 March 2001 Dr Lewis Moonie MP, the Parliamentary Under-Secretary of State for Defence, wrote to Dr Kim Howells MP about the legality of Depleted Uranium (DU) weapons. (Reference D/US of S/LM 1136/01/M). He argued that all weapons, including DU weapons, are subject to International Humanitarian Law which "requires that weapons be used during armed conflict in a discriminate manner". Dr Moonie claimed that DU weapons can be used discriminately. He then contrasted DU weapons with other weapons, as follows:
"Nuclear, biological and chemical weapons are indiscriminate weapons of mass destruction specifically designed to incapacitate or kill large numbers of people. DU ammunition is not."
This is a precise and unequivocal statement on the legal status of nuclear weapons and comes from a Government department. It actually goes further than WCP UK arguments because it claims that ALL nuclear weapon are illegal by definition. We only claim that no imaginable legal use has ever been produced for a specific nuclear weapon system, Trident. However:
Letter from the Rt Hon Adam lngram JP MP, Minister of State for the Armed Forces, to George Farebrother, 21 August 2001.
... You quote a particular statement about weapons of mass destruction made by the Parliamentary Under Secretary of State for Defence in his letter of 25 March 2001 (D/USofS/LM/ 1136/01/M) to Dr Kim Howells MP. Dr Moonie was, of course, concentrating on the legality of the use of depleted uranium, and his response needs to be read in that context. It does not represent a Government statement on the legal status of nuclear weapons, .........
The response is that Dr Moonie's words are quoted out of context. Even so, it is a Government letter, and the words mean what they say. Adam Ingram does not say whether he actually agrees with what Dr Moonie wrote.
The World Court Project is an international citizens' network which is working to publicise and have implemented the July 8 1996 Advisory Opinion of the International Court of Justice
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