On 8 August 1945, the British Government signed the Nuremberg Charter which established the Principles under which the leading Nazis were tried for war crimes, crimes against peace and crimes against humanity.  The text of those Principles, as codified by the International Law Commission in 1950, is at Appendix A. 

Principle IV is the most important:  "The fact that a person acted pursuant to order of his government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible for him."  The British Manual of Military Law is even stronger:  "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 Nuremberg Charter defines war crimes as:  "Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity."  The laws of war are set out in international treaties such as the Hague Conventions and the Geneva Conventions and Protocols.  These prohibit the use, even in self-defence, of weapons which for example: 

• fail to discriminate between military and civilian personnel 
• cause unnecessary or superflous suffering 
• affect neutral States 

Moreover, the Nuremberg Tribunal firmly rejected the doctrine that in extreme circumstances the principles of humanitarian law could be abandoned. 

There is a crucial difference between military professionals and hired killers or terrorists:  military professionals need to be seen to be acting within the law - military, domestic and international law.  This is also fundamental to the reputation, honour and integrity of the Royal Navy as 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." 

In its Advisory Opinion, the World Court decided that: 

• Any threat, let alone use, of nuclear weapons would be illegal if it violated international humanitarian law [subparagraph 105(2D)] 
• Threat and use are indivisible [paragraph 47] 
• The Nuremberg Charter applies to nuclear weapons, as part of international humanitarian law [paragraphs 80-86] 

In so doing, the Court emphasised that the effects of nuclear weapons are unique, and more severe, widespread 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 - only in some respects far worse. 

By the end of 1998, the Trident SSBN force will be the sole British nuclear weapon delivery system.  Each submarine is capable of carrying 16 Trident II D-5 missiles.  Each missile can deliver 8 independently targetable warheads; but the UK version is believed to have only 4-6, of 100 kilotons each - 8 times more powerful than the Hiroshima bomb.  It is believed that some missiles in each deployed submarine have only one warhead of lower, variable yield.  There are two ways in which Trident could be used: 

• Strategic Trident.  This means the threatened use of a submarine's full load of 100 kiloton warheads in a strike on the centres of power and/or population in an enemy State. 
• 'Tactical' Trident.  This means the threatened use of a single Trident missile carrying one lower yield warhead "in a limited way to warn an aggressor that he must cease his aggression or face the prospect of a strategic strike" [FCO letter 31 March 1997]. 

This is the most likely scenario for the threat or use of nuclear weapons by the UK, and is linked to NATO's insistence on retaining the option to use nuclear weapons first.  Along with the USA and France, the UK has plans to threaten to use low-yield nuclear weapons against even non-nuclear "rogue" States to counter the proliferation of weapons of mass destruction, or to protect US/UK/French "vital interests" anywhere in the world. 

The World Court's decision has placed in serious question the lawfulness of the continuing practice of deploying a Trident submarine on patrol at immediate readiness to use its nuclear weapons.  This is because the Court implicitly confirmed that even to threaten a strategic strike would always violate international humanitarian law; as would threatened first use of a single low-yield warhead against a non-nuclear "rogue" state. 

The Court also challenged the nuclear weapon States that they had neither specified any legal circumstances for use, nor convinced it that "limited use would not tend to escalate into the all-out use of high-yield nuclear weapons." [ICJ Opinion paragraph 94]

The British Government is not above the law. British law includes international law. All citizens, including the Prime Minister, First Sea Lord and Trident Commanding Officers, have a duty to uphold the law.  Moreover, preparing to do an illegal act is also illegal.  The current position of the Government, in a letter from the Ministry of Defence of 3 July 1997, is as follows:  "The Government is confident that the Opinion does not require a change in the United Kingdom's or NATO's nuclear deterrence policy."  This is despite the fact that: 

• In the Attorney General's oral statement to the Court on 15 November 1995, Sir Nicholas Lyell said that "...even a military target must not be attacked if to do so would cause collateral civilian casualties or damage to civilian property which is excessive in relation to the concrete and direct military advantage anticipated from the attack..."; 
• On 24 September 1996, Foreign Secretary Malcolm Rifkind said in a speech to the UN General Assembly that "the more we accept that international law must be the foundation of international relations, the safer we shall all be."

As in all legal questions, the findings are open to interpretation.  When the issue relates to probably the greatest investment in financial, political and human terms by every British Government since the Second World War, then it should come as no surprise when the Government's legal advisers recommend "business as usual".  THE SAME HAPPENED WITH SLAVERY. 

More seriously, before the Court delivered its Advisory Opinion, the Chief Naval Judge Advocate's informal view of the legal position of Trident SSBN Commanding Officers, while not intended to constitute legal guidance to them, was as follows:  "Much will depend on the rationale of the ICJ's interpretation of the law, but if the Court were to deliver an adverse opinion, it would be ignored by the nuclear powers and the servants of the states concerned, including SSBN Commanding Officers, would not be acting illegally in obeying orders and carrying out the policies of the state of which they were citizens."  (Appendix B) THIS WAS THE NAZI DEFENCE AT NUREMBERG.  It failed because of Principle IV. 

If, in light of the above, you decide that even to threaten to use the nuclear weapons in a deployed Trident submarine would be illegal, then you are in a very difficult position.  The courts would not wish to consider cases about national security.  This makes it all the more important that you should exercise what Nuremberg Principle IV calls a "moral choice". 

For the Prime Minister and First Sea Lord, the solution is clear:  Trident patrols should be stood down, and warheads removed from the missiles and placed in verifiable storage as soon as possible, pending their negotiated elimination.  These are the first steps recommended by the Canberra Commission on the Elimination of Nuclear Weapons, which would also: 

• reduce dramatically the chance of an accidental or unauthorised nuclear weapon launch; 
• have a most positive influence on the political climate among the nuclear weapon States; 
• help set the stage for intensified cooperation. 

Simultaneously, Britain should press NATO to: 

• stand down all its strategic nuclear forces 
• declare that it would never use nuclear weapons first 
• carry out a fundamental review of its dependence on nuclear deterrence. 

This would not only bring NATO into compliance with international law.   It would also help to allay Russian fears about NATO expansion, encourage the Duma to ratify START II, and allow Yeltsin to move quickly to START III while implementing his offer, on signing the NATO-Russia Founding Act in Paris on 27 May 1997, to de-alert all Russian nuclear forces. 

Yours sincerely, 

Robert Green 

Commander, Royal Navy (Retired) 
UK Chair, World Court Project 
 

1. Nuremberg Principles 



2. Letter from Cdr Green to Secretary of State for Defence 4 June 1996 enclosing opinion by Captain D R Humphrey RN, Chief Naval Judge Advocate, and MoD reply 26 June 1996