Court finds nuclear weapons to be illegal

In 1988, three judges, Rubin, Boyle and Weston, at the end of the first judicial tribunal ever to address the issue of the legality of nuclear weapons, declared, in Judge Rubin's words: 'that the international rules of war apply to nuclear weapons and their use in warfare and that in all cases the threat or use of those weapons in ways forbidden by the international humanitarian rules of warfare is of sufficient interest to the general international community to justify that community in taking legal measures to prevent it. I therefore grant to the Plaintiffs an injunction forbidding the threat or use of nuclear weapons in any way violative of international law.' Concurring with Judge Rubin, Judge Weston delineated six 'core rules' of international law regarding nuclear weapons:

- First, that it is prohibited to use weapons or tactics that cause unnecessary and/or aggravated devastation and suffering;

'It is prohibited to use weapons that cause indiscriminate harm as between combatants and civilian personnel'

- Second, that it is prohibited to use weapons or tactics that cause indiscriminate harm as between combatants and non-combatant military and civilian personnel;
- Third, that it is prohibited to effect reprisals that are disproportionate to their antecedent provocation or to legitimate military objectives, or that are disrespectful of persons, institutions, and resources otherwise protected by the laws of war;
- Fourth, that it is prohibited to use weapons or tactics that cause widespread, long-term and severe damage to the natural environment;
- Fifth, that it is prohibited to use weapons or tactics that violate the jurisdiction of non-participating States; and
- Sixth, that it is prohibited to use asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices, including bacteriological methods of warfare.

Judge Boyle stated in his turn that:

'Under article 38(1)(d) of the Statute of the International Court of Justice, this Opinion' - by himself and his two fellow judges -' constitutes a 'subsidiary means for the determination of rules of law'. It could therefore be relied upon by some future international war crimes tribunal.' This case has thus become the seminal case in the field, and could be referred to by litigants in any country.

The trial was the result of an initiative by Leon Vickman, a Californian attorney, for whom it became clear, after some research, that bringing a lawsuit about nuclear weapons in the United States would not result in a ruling on the merits, since domestic courts consider such matters to be 'political questions' which require abstention. It also seemed futile to him to turn to the International Court of Justice in the Hague, since defendants in any suit must agree to the jurisdiction of the Court and only nations can sue.

'The lawsuit was filed soon thereafter, on behalf of all the persons of Earth, against 28 nuclear nations'

Leon Vickman describes his six-year battle in a new pamphlet 'Why Nuclear Weapons Are Illegal' (published by the Nuclear Age Peace Foundation), from which the following is extracted:

'It was necessary to search for a court that was empowered to hear such matters. And it came to pass that such a court was in a formative stage, within a provisional world government, called the Federation of Earth. Under its Constitution, a complete court system could be formed. Upon the author's urging, a Bill was passed at the Federation's First Provisional World Parliament in Brighton, UK, in 1982, establishing such a court in Los Angeles. The lawsuit was filed soon thereafter, on behalf of all the persons of Earth, against 28 'nuclear' nations. The defendants were divided into three groups: the superpowers, the nuclear host nations, and the nuclear-capable nations.

Every step of the process was conducted with meticulous care to conform to generally accepted legal procedures. The defendant nations were served numerous times with legal pleadings. (India was the only state to file a responsive pleading, stating it was against the use of nuclear weapons.) Attorney Gaither Kodis of Bellevue, Washington, was appointed to serve as an amicus to the Court, representing the viewpoint of the defendants in briefs and oral argument.

During the almost six-year duration of the lawsuit, perhaps the most dramatic event, other than the court hearing itself, was the appointment of three highly qualified judges to the panel that was to decide the case: Judge Francis A. Boyle, Professor of International Law at the University of Illinois Law School at Champagne, Judge Alfred P. Rubin, Professor of International Law at the School of Law and Diplomacy at Tufts University, and Judge Burns H. Weston, Professor of International Law at the University of Iowa School of Law. The fact that the three judges are leading experts in the field of nuclear weapons law resulted in the three lengthy written opinions by the judges having a far reaching legal effect.'

The principal cause of action on the court summons stated: 'Plaintiffs are informed and believe and on said basis allege that the following defendants possess nuclear weapons that are poised for use against human population centres, as well as numerous other target areas which inevitably drastically affect human populations: China (People's Republic), France, Union of Soviet Socialist Republics, United Kingdom and the United States.' The finding against the defendants could prove influential, concludes Leon Vickman:

'We are a people of law. We now have the law on the most horrible of weapons. Let us observe it'

'It will only take a few persons to start a peaceful international protest against nuclear weapons that can ultimately impact on the very core of nuclear policy. Remember the pioneering work of Linus Pauling against atmospheric testing, and the crusade of Helen Caldicott against nuclear arsenals ... We are a people of law. We now have the law on the most horrible of weapons. Let us observe it.'

'Why Nuclear Weapons Are Illegal', by Leon Vickman, is booklet number 20 (12 pages) published by the Nuclear Age Peace Foundation, 1187 Coast Village Road, Suite 123, Santa Barbara, CA 93108, USA. See also the article on the UN Declaration of Scientific Responsibility in Relation to Nuclear Weaponry in the chapter on Science, Technology and Energy in this encyclopaedia.

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