AN OPEN LETTER to THE PRIME MINISTER
Commander Robert Green, Royal Navy (Ret’d)
PO Box 8390
The Rt. Honourable Theresa May, MP
Office of the Prime Minister
10 Downing Street
London SW1A 2AA
1 October 2017
Dear Prime Minister,
UK Trident, Nuremberg, the 1996 World Court Judgment, and now the Treaty to Prohibit Nuclear Weapons
Seventy-one years ago, on 1 October 1946, the Nuremberg War Crimes Tribunal delivered its judgment. The Nuremberg Charter Principles, under which the Nazi leadership were tried, were unanimously affirmed by the UN General Assembly, on 11 December 1946 during its first session in Central Hall Westminster, as having become part of international humanitarian law.
Almost fifty years later, on 8 July 1996, the International Court of Justice (ICJ) at The Hague (known as the World Court) delivered its Advisory Opinion on the following question asked by the UN General Assembly: “Is the threat or use of nuclear weapons in any circumstance permitted under international law?” In its judgment, the ICJ implicitly outlawed deployment of a Trident ballistic missile submarine (SSBN) on so-called “deterrent patrol”. The ICJ also confirmed that the Nuremberg Charter applies to nuclear weapons.
On 7 July 2017, a Treaty on the Prohibition of Nuclear Weapons was adopted in the UN General Assembly by 122 member states. On 20 September, this Treaty was opened for signature; over fifty states have already signed it, and it will enter into force 90 days after the fiftieth state ratifies it.
The general obligations of the Treaty will only apply to states party to it. However, its preamble includes an affirmation that ‘any use of nuclear weapons would be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of international humanitarian law’. This law applies universally, including to the United Kingdom (UK).
I must therefore ask the Prime Minister: “During last year’s Commons debate on 18 July 2016 on renewing Trident, you confirmed that you would authorise the Commanding Officer of the Trident SSBN on patrol to execute a nuclear strike that would kill hundreds of thousands of men, women and children. Then on 24 April 2017, Michael Fallon, Secretary of State for Defence, confirmed that you would authorise a first strike if necessary. Are you still prepared to do that?”
THE NUREMBERG CONNECTION
On 8 August 1945 – ironically between the first and second US nuclear strikes on Hiroshima and Nagasaki – the UK government signed the Nuremberg Charter, which established the principles under which the Nazi war leaders were tried for war crimes, crimes against peace and crimes against humanity. For you, Principle 3 applies: ‘The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible government official does not relieve him from responsibility under international law.’
HOW NUREMBERG APPLIES TO THE ROYAL NAVY
There is a crucial difference between military professionals and terrorists: military professionals need to act within the law – military, domestic and international law. This is fundamental to the reputation, honour and integrity of the Royal Navy as an upholder and enforcer of these laws. The Nuremberg War Crimes Tribunal stated: ‘(T)he very essence of the Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual state. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the state if the state in authorising action moves outside its competence under international law.’
For the Royal Navy, the British Manual of Military Law reinforces this: ‘If a person who is bound to obey a duly constituted superior receives an order to do some act which is manifestly illegal, he is bound under a legal duty to refuse to carry out the order.’
THE ICJ ADVISORY OPINION OF 8 JULY 1996
In its Advisory Opinion, the ICJ decided unanimously that:
1) Any threat, let alone use, of nuclear weapons should comply with international humanitarian law [subparagraph 105(2d)]
2) The Nuremberg Charter applies to nuclear weapons, as part of international humanitarian law [paragraphs 80-86]
The ICJ ruled upon the relationship between the threat and use of force, and thus implicitly nuclear deterrence:
Whether a signalled intention to use force if certain events occur is or is not a ‘threat’ within Article 2, paragraph 4 of the [UN] Charter depends upon several factors. If the envisaged use of force is itself unlawful, the stated readiness to use it would be a threat prohibited under Article 2, paragraph 4. Thus it would be illegal for a State to threaten force to secure territory from another State, or to cause it to follow or not follow certain political or economic paths. The notions of ‘threat’ and ‘use’ of force under Article 2, paragraph 4 of the Charter stand together in the sense that if the use of force itself in a given case is illegal – for whatever reason – the threat to use such force will likewise be illegal. In short, if it is to be lawful, the declared readiness of a State to use force must be a use of force that is in conformity with the Charter. For the rest, no State – whether or not it defended the policy of deterrence – suggested to the Court that it would be lawful to threaten to use force if the use of force contemplated would be illegal. [paragraph 47; emphasis added]
In affirming general illegality of the threat or use of nuclear weapons under international humanitarian law, the ICJ emphasised that the effects of nuclear weapons are unique, and more severe and long-lasting than those of chemical weapons, which are completely banned regardless of size [paragraphs 35-36]. Thereby it effectively confirmed that nuclear weapons are in the same stigmatised category as chemical and biological weapons – and in many respects far worse.
TREATY ON THE PROHIBITION OF NUCLEAR WEAPONS
Among its core prohibitions, the Treaty outlaws both the use and threatened use of nuclear weapons, and therefore places a general prohibition on, and further stigmatises, nuclear deterrence. In so doing, it reinforces existing treaty and custom-based international law on the issue, and recognises the catastrophic humanitarian consequences of nuclear weapon use, and the political, moral and legal standards enjoining non-use. It also reinforces the ICJ’s affirmation that, if a specific action is illegal under customary international law, then plans and preparations to undertake this action would also be illegal.
THE UK GOVERNMENT’S POSITION
The Government has stated that it will not sign or ratify this Treaty, because of its intention to sustain its reliance on nuclear deterrence. When this issue relates to probably the biggest investment in financial, political and human terms by every British government since World War 2, this flouting of the law comes as no surprise.
However, the crisis between the US and North Korea has exposed the reality that nuclear deterrence is not only unlawful and immoral: it provokes insecurity and irrational recklessness on both sides, and stimulates hostility, nuclear arms racing and proliferation. As such, it is self-defeating and contrary to common sense.
For you, Prime Minister, the solution is clear. To bring the UK Government and Royal Navy back within the law, you should stop requiring the Commanding Officers and crews of the four SSBNs to obey an order to fire. Not only would this be illegal: it would also signal that nuclear deterrence had failed.
Instead, you should announce that, in light of the failure of nuclear deterrence in northeast Asia and urgent need for responsible leadership to avert the most serious confrontation since the 1962 Cuban Missile Crisis, the British Government will sign the Treaty, stand down the deployed SSBN, and encourage other nuclear-armed states to do likewise, thereby rescuing the fractured, dysfunctional nuclear non-proliferation and disarmament regime.
The way will then be open for you to press the US, France and other nuclear-armed states to stand down their nuclear forces, and join negotiations for the phased elimination of nuclear weapons under international verification and enforcement.
Were the UK to take such a bold, principled initiative, the best way to encourage the other eight nuclear-armed states to reciprocate is to invite them to join the UK in a statement at the 2018 UN High-Level Conference on Nuclear Disarmament. Most non-nuclear NATO and US-allied states, and all UN member states which have signed the Treaty, will gratefully welcome your enlightened leadership, as will the overwhelming majority of citizens worldwide.
I look forward to your reply.
Commander, Royal Navy (Ret’d)