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Disarmament Week, United Nations, New York, October 18, 2000 John Burroughs, Lawyers' Committee on Nuclear Policy, New York

In talking about the present nuclear threat, it paradoxically is important to go back to the beginning of the nuclear age. A striking fact is that the choices were well understood at the outset. "Strategists" and physicists saw very clearly, for example, that either there would be international control of the materials to make the bomb, or that a nuclear balance of terror would emerge. Fatefully, it was the second path that was taken, led by the United States.

Single most important facts of the nuclear age: Hiroshima and Nagasaki. US dropped atomic bombs on a country that itself had no atomic bombs, nor certainly was not going to defeat the United States. The only question was how long would Japan's defeat take. Here's another very important fact: the Soviet Union had entered the war. I repeat, the Soviet Union had entered the war.

Any assessment of reducing the role of nuclear weapons in security doctrines, the subject of the panel discussion today and called for by the 2000 NPT Review Conference Final Document ("steps ... leading to nuclear disarmament" include "a diminishing role for nuclear weapons in security policies to minimize the risk that these weapons ever be used and to facilitate the process of their total elimination"), should start with their actual use in war. The International Court of Justice did this, by the way. Nowhere in the opinion do you find Hiroshima and Nagasaki mentioned. But you do find the clear statement that humanitarian law barring the infliction of indiscriminate harm and unnecessary suffering preceded the nuclear age. That means the bombings were illegal. If you were there when oral arguments were made, as I was, the fact that ICJ dealt clearly, if in subtext, with the bombings of the two cities would not surprise you. The testimony of the mayors of Hiroshima and Nagasaki had an enormous impact, including on the judges.

Another striking fact at the commencement of the nuclear age: the development of the atomic and hydrogen bombs, the creation of the computer, and the advent of game theory, the highly elaborated instrumental thinking that would form the basis of deterrence theory, all were intertwined and reinforcing. And they were even embodied in one person, said to be a genius, John von Neumann, who directed the building of a computer at Princeton, who was a principal founder of game theory, and who was one of the Manhattan Project physicists.

Now some fifty-five years later, there has been a resurgence of normative thinking and an understanding that a normative framework must replace the game theory, the instrumental thinking, the deterrence theory that have dominated thinking about nuclear weapons.

By a normative framework I mean simply moral and legal rules and principles. I say "moral" without embarrassment. We have stared too long into the abyss, the utter nihilism, of entrusting security and our souls to stark calculations of power, of interest. Does not the phrase "balance of terror" say it all?

Morality means, among other things, accepting that there are categorical, absolute norms. It is not acceptable to use gas ovens to annihilate a people. It is not acceptable to threaten or carry out mass destruction of civilian populations.

And the moral and legal norms are interrelated, self-reinforcing.

The resurgence of normative thinking is generally evident in the establishment of the international criminal tribunals for the former Yugoslavia and Rwanda, and in the negotiation of the Statute of the International Criminal Court.

In the nuclear field, of course, the resurgence of normative thinking is exemplified by the advisory opinion of the International Court of Justice on the legality of threat or use of nuclear weapons.

Let me offer an authoritative, and too much neglected, application of the opinion, by persons extremely well versed in the realities of nuclear weapons and deterrence doctrines. That is found in the 1997 study carried out by the Committee on International Security and Arms Control of the National Academy of Sciences, The Future of U.S. Nuclear Weapons Policy. The Committee stated regarding the ICJ opinion:

[T]he ICJ unanimously agreed that the threat or use of nuclear weapons is strictly limited by generally accepted laws and humanitarian principles that restrict the use of force. Accordingly, any threat or use of nuclear weapons must be limited to, and necessary for, self defense; it must not be targeted at civilians, and be capable of distinguishing between civilian and military targets; and it must not cause unnecessary suffering to combatants, or harm greater than that unavoidable to achieve military objectives. In the committee's view, the inherent destructiveness of nuclear weapons, combined with the unavoidable risk that even the most restricted use of such weapons would escalate to broader attacks, makes it extremely unlikely that any contemplated threat or use of nuclear weapons would meet these criteria.

When discussing the ICJ opinion, we must, however, squarely confront the problems posed by the Court's inability to reach a definitive conclusion regarding an extreme circumstance of self-defense in which the very survival of a state is at risk. Relatedly, the ICJ also asserted generally that it would not deal with the lawfulness of deterrence.

First observation: here is an anachronistic element of instrumental thinking, proof of its continuing influence. I believe that what the Court was wrestling with, or more precisely the three majority judges only who, however reluctantly, affirmatively supported the formulation, is not so much that the use of nuclear explosives in such a circumstance might be justified, that the threat might be so, in order to prevent immeasurable suffering and destruction.

Second observation: Nonetheless, in the majority opinion, and in the separate statements of a large majority of the judges, the Court clearly affirmed that any threat or use must comply with the fundamental norms of humanitarian law. Always to be emphasized here is the unambiguous statement of the following "fundamental" and "intransgressible" principle: "States must never make civilians the object of attack and consequently never use weapons that are incapable of distinguishing between civilian and military targets".

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