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Home Articles posted by Dapo Akande & Antonios Tzanakopoulos

Corbyn, Trident, and the Letter of Last Resort: Legality of Use of Nuclear Weapons

Published on October 6, 2015        Author: 

Jeremy Corbyn’s election to the leadership of the Labour Party in the United Kingdom by a landslide victory last month has renewed discussions in the UK about the ‘nuclear deterrent’. Corbyn, a long time anti-war activist and Vice-Chair of the Campaign for Nuclear Disarmament (CND) has, for many years, taken a very public and unequivocal stance against the use of nuclear weapons and in favour of scrapping the UK’s Trident nuclear weapons system. The Trident system is composed of submarine-launched ballistic missiles carried by four Vanguard-class submarines: HMS Vanguard, HMS Victorious, HMS Vigilant, and HMS Vengeance. One of those submarines is constantly on patrol somewhere around the globe. During the recent Labour Party conference, the party failed to take a position in favour of scrapping Trident, but its leader clearly and unequivocally stated that should he become Prime Minister of the UK, he would not use nuclear weapons. For this he was criticized both from within his own party, and beyond, as his statement would mean that were he to become Prime Minister, the UK would have effectively given up the possibility of any deterrent value of its nuclear arsenal.

It might be thought that even if Corbyn were to become Prime Minister the circumstances in which he would have to make a call as to whether to use nuclear weapons are very remote. Far from it! Each new Prime Minister of the UK must decide on the use of nuclear weapons in his or her first few days in office! This is when each new UK Prime Minister must draft the so-called ‘Letter of Last Resort’. This letter contains an instruction from the Prime Minister (indeed the final instruction) to the commanders of the Royal Navy submarines carrying the Trident system. The letter sets out what the commander is to do in case Britain has suffered a nuclear attack that has effectively destroyed the British state, resulted in the death of the Prime Minister and his or her nominated deputies, and led to a loss of contact between the submarine and the UK. There are a number of checks that must be carried out before the commander can presume that the UK has been attacked so devastatingly that nothing of the state and the chain of command remains. Apparently, one of those checks is to establish that BBC Radio 4 is no longer broadcasting! At that stage, the commander of the submarine is to obtain and fulfill the order stated in the letter of last resort, which is kept in the ship’s safe. No letter of last resort has been published. Each one is destroyed when a new PM takes office and issues a new letter of last resort. However, we do have some idea of the options available to the PM, which range from ‘scuttle the ship’, to ‘find and join the US or Australian Navy’, ‘retaliate’ or perhaps even ‘use your judgement’. (For a serious discussion of the Letter, listen to this BBC Radio 4 programme, for a more humorous discussion of the nuclear deterrent, watch this) .

Presumably, Corbyn’s letter of last resort will not involve a command to use the nuclear weapons aboard the vessel. However, it is interesting to consider whether an order to retaliate, in the circumstances in which a letter of last resort is actually opened, would be legal under public international law. To be sure, if such horrendous circumstances were to occur, we would be right at the vanishing point of the utility of law. Indeed, law, as well as other frameworks for organizing human society, would have failed us. However, thinking about whether a use of nuclear weapons (indeed any use of force) would be lawful in those circumstances helps us to understand what we think the purpose of the right of self-defence is, and how it ought to operate in international law. Read the rest of this entry…

 

The International Court of Justice and the Concept of Aggression: Lessons for the ICC?

Published on July 3, 2015        Author: 

The Kampala Amendments to the Statute of the International Criminal Court (ICC) adopted in June 2010 define the crime of aggression for the purposes of the ICC Statute and set out the conditions under which the ICC will exercise jurisdiction with respect to that crime. It was decided in Kampala that the aggression amendments will only become operational, in the sense that the ICC can only exercise jurisdiction over the crime of aggression: (i) one year after the aggression amendments have come into force for at least 30 States and (ii) if the ICC Assembly of State Parties adopts a further decision to activate that jurisdiction, with 1 January 2017 being the earliest date for the adoption of that decision [Arts. 15 bis (2) & (3) & 15ter (2) & (3), ICC Statute]. Given that 23 states have now ratified or accepted the aggression amendments and that 1 January 2017 is under 18 months away, the activation of the ICC’s jurisdiction over the crime of aggression is not very far away at all [see this report on action by other states considering ratification]. As that moment – when the ICC is able to exercise jurisdiction over aggression approaches – attention will turn (back) to a couple of issues that remain unresolved with respect to the interpretation of the Kampala amendments. One of those issues is whether the Court will be entitled to exercise jurisdiction over the nationals of a party to the Rome Statute which has not accepted the aggression amendments but which is alleged to have committed aggression on the territory of a state party that has ratified or accepted those amendments (see previous discussion here & here). The second issue is the interpretation to be given to the definition of the crime of aggression under the Kampala amendments.

Article 8 bis(1), of the ICC Statute provides that: “For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.”

The relationship between the concept of the “crime of aggression” and of “act of aggression” under the ICC Statute and under general international law respectively remains unclear. Under the Kampala amendment only an “act of aggression” which by “character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations” can amount to the “crime of aggression” attracting individual criminal responsibility. Despite attempts in interpretive Understandings adopted in Kampala to give guidance with respect to the definition of the crime, the ICC will have its work cut out in establishing what amounts to a manifest violation of the UN Charter such that it should be regarded as the crime of aggression.

As the concept of aggression is one which relates not merely to individual criminal responsibility but builds on state responsibility for unlawful uses of force, it is instructive to examine how the International Court of Justice (ICJ) has dealt with the concept of aggression. Read the rest of this entry…

 
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