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Presentation |
THE ROLE OF
MORALITY IN INTERNATIONAL LAW: PURSUING NUCLEAR-DISARMAMENT
That law can never
be exhaustive in finding solutions, is hardly disputable.
This is true for two reasons, firstly, because human
conditions and circumstances are too varied and
unpredictable to be covered by the letters of the law and
secondly, because finding loopholes in law is an art which
many have mastered, rendering the spirit of the law wholly
subservient to a rigid-interpretation of its text.
Therefore, this presentation is a modest attempt at showing
the need for letting morality play a larger role in deciding
legal matters with consequences on civilization.
Though, after several stages of evolution international law
now commands almost universal respect, it is often
criticized for its vagueness and lack of teeth. Even though
it is difficult for a country to publicly accept that it
acted in violation of international law, actual violations
are not so rare.
As, India’s eminent Jurist Mr. Fali Nariman put it in a
recent article, nuclear-proliferation has brought humankind
to a whisker away from annihilation. So, does international
law permit the usage of nuclear weapons? The most relevant
and significant of legal principles is that of
‘Proportionality’. Though, the amount of literature
available on this principle is immense, essentially because
of its complex nature, it is sufficient to know that a party
to war is not permitted to incur disproportionately more
damage on the other side than what is militarily-required.
Though the issue of what constitutes proportionate damage
has never been resolved, it is difficult to except that the
damage cause by nuclear weapons can ever qualify this test.
The only instance of a nuclear attack, as we all know, was
the one that ended World War II, and this fact is often
sighted as defence to buttress claims that such usage was
necessary. However, history shows that the war had already
tilted decisively in favour of the allies and the necessity
of such an attack has been seriously doubted. But what is of
relevance is the damage caused by the bombs. One can compare
the damages caused only when they are calculable. Apart from
the immediate impact itself causing more deaths than even
the notorious carpet- bombing technique used by the Royal
Air Force against German towns (especially Dresden and
Hamburg), the secondary radiations emanating from the bombs
caused environmental and inter-generational damage that is
beyond computation and therefore much beyond comparison. It
is important to bare in mind that technology has grown by
leaps and bounds, and the damage caused by a modern
nuclear-bomb could be far more devastating. Therefore to
arrive at a conclusion that even in some extreme
circumstances a nuclear attack can be proportionate seems in
patent violation of international law. However, as will be
discussed later, no less an authority than the International
Court of Justice (ICJ) held otherwise.
Another principle which is of utmost vitality in deciding
the legality of means and methods of warfare is that of
‘Distinction’. It requires the attacker to distinguish
between civilians and civilian objects from combatants and
military objects. From the Hiroshima and Nagasaki experience
one would find it hard to believe that such a distinction
can be maintained while using the nuclear bomb. However, the
U.S has claimed it possess nuclear weapons (‘Tactical’ or
‘Smart’ Bombs) that are capable of attacking limited
targets. Assuming this is true, even though it seems to be
in fundamental contradiction with the very nature of a
nuclear weapon, not many countries can afford to use such
technology. Another argument has been that in some
situations like, ‘a strike upon troops and armor in an
isolated desert region with a low-yield-air-burst in
conditions of no-wind’, a nuclear weapon need not affect
civilians. Well, to say the least this hypothesis can only
be merited with skills of imagination. A country in war,
with the need to use a nuclear weapon, will have neither the
resources nor time to consider such remote circumstances
before attacking. In spite of the obvious fallacies in all
such arguments, the ICJ bought them.
The ICJ gave an opinion on the legality of the use and
threat to use nuclear weapons on a request by the United
Nations General Assembly in 1996. It is worth noting that of
the fifteen judges of the court, seven dissented with the
majority view. This in my view is reflective of the immense
political pressure that was there on the Court. Arguments
like the ones discussed earlier regarding ‘proportionality’
and ‘distinction’ were accepted, holding that ‘when the very
survival of a state is under threat’ the usage of a nuclear
weapon can be legal.
Several authors have criticized this decision for not
totally banning such weapons. To decide when the survival of
a state is under threat can prove to be extremely
subjective, and in my view the impact of a nuclear weapon is
too immense to let its legality rest on such a vague test.
The fact that hitherto there has never been a specific
customary norm banning nuclear weapons coupled with the
loopholes in existing legal principles which were
successfully exploited by nuclear-powers prevented the ICJ
from holding such weapons to be totally illegal.
So what could have been done differently so that the Court
decided differently? What can be done in future to make
states realize the need to ban such weapons? In my view
there are moral standards implicit in international law that
need to be used and emphasized with greater strength.
‘Humanity’ and not just ‘legality’ should be the touchstone
to decide the usage of nuclear weapons as well as all other
means and methods of warfare. One might be tempted to
dismiss this possibility, either because terms like
‘humanity’ lack legal value or because they are too vague.
As regards the
issue of legal sanction for moral standards, it is not
difficult to find it in international treaties or cases. The
famous ‘Martens Clause’ that is included in all Conventions
and treaties related to armed-conflict converts into a legal
yardstick the ‘principles of humanity’ and ‘dictates of
public conscience’. It is now universally accepted that the
mere absence of law on a particular point cannot be used to
perpetrate acts during war that are in violation of
‘principles of humanity’ and ‘dictates of public
conscience’. In many cases international tribunals have held
the violation of ‘elementary considerations of humanity’ to
be valid ground for holding the respondent guilty. The
famous trial of Krupp, the Nazi war criminal in Nuremburg
was decided in this manner. Also, in the ‘Corfu Channel
Case’ between, the ICJ held that ‘elementary considerations
of humanity’ required Albania to inform other states about
it laying mines in the sea, prompting one of international
law’s most respected scholars, Prof. Ian Brownlie to
conclude that the term ‘humanity’ has become an independent
source of law reversing several traditional notions of
international law.
In my view arguments based on these moral standards were the
ones that weighed heavily on the minds of the judges of the
ICJ, leading to a declaration of partial-illegality of
nuclear weapons. If such arguments are pursued with greater
vigour at different forums, a total-ban might not be too far
in the offing. More recently, absence of formal-law has been
sighted regularly by the U.S to justify its treatment of
terrorist-detainees. The presence of moral standards hasn’t
been adequately emphasized in this context.
With regard to the vagueness of moral standards, in my
humble opinion there is no need for them to be concrete or
specific. After all, their purpose is to deal with
situations that have not been specifically addressed or
foreseen before. Therefore the exact content of these terms
cannot be fixed independent of the circumstances in which
they need to be applied.
The words of Judge Higgins in the Nuclear Weapons Case are
important - ‘it may well be asked of a judge whether, in
engaging in legal analysis of such concepts as ‘unnecessary
suffering;, ‘collateral damage’ and ‘entitlement to
self-defence’, one has not lost sight of the real human
circumstances involved.” Human circumstances can never be
covered in totality by any amount of legislation, certainly
not when law is so susceptible to manipulation. |
