Dear Editor,

I was very interested to read your article ‘Why Should Iran disarm?’ which focused on the Nuclear Non-Proliferation Treaty (NPT) and its particular shortcomings with regards to enforcement of all its articles, both on Nuclear Weapon States (NWS) and Non-Nuclear Weapon States (NNWS). I have some other points that I would like to draw your attention to.

Any international treaty is as good as the commitment of its signatories. Despite the emphasis of Article VI of the NPT on cessation of the nuclear arms race and ultimate nuclear disarmament, the NPT implicitly recognises the NWS and does not expressly forbid these states from possessing nuclear weapons; rather the treaty is formulated on the premise of the status quo.

I appreciate your point about the sheer hypocrisy of the NWS towards any NNWS attempts to become a NWS by claiming foul play on the basis of the NPT. However, the legality of possession and /or usage of nuclear weapons cannot be determined simply by a treaty. The proponents for and against nuclear weapons possession have what appear to be valid claims. Clausewitz’s hypothetical condition can ensure ‘Mutually Assured Destruction (MAD)’ with their weapons. The debate in international law with regards to jus in bello - the laws of war - which seeks to regulate the way armed conflict is fought in order to minimise the horrors of war has always been at tension with the deterrence approach to warfare, which seeks to prevent war altogether by making it frightful. Despite the codification of various binding multilateral international conventions currently in force to restrict the ferocity of war that could potentially break out, there is little doubt that in today’s nuclear reality the deterrence mode of thinking is by far the most prevalent one.

It is, at best, speculation to try to understand Iran’s nuclear war fighting doctrines for instance, whether it would choose a relatively stable model of deterrence or aggressively exploit its possession politically. It would be second-guessing whether Iran would develop an aggressive doctrine for use of its arsenal or use it as a last resort.

Although the consequence of a nuclear holocaust may by morally and ethically repugnant due to its indiscriminate nature, repugnancy and wrong do not necessarily translate into illegality according to international law. The International Court of Justice (ICJ) in a report (1986, Nicaragua v. United States of America) stated “in international law there are no rules, other than such rules as may be accepted by the state concerned, by treaty or otherwise, whereby the level of armaments of a sovereign state can be limited.” The ICJ was asked to give an advisory opinion on the legality of the threat or use of nuclear weapons by the United Nations General Assembly in 1996 (General List No. 95). The advisory opinion given by the ICJ raised some interesting points. The ICJ pointed out that the mere possession of nuclear weapons would not constitute an unlawful ‘threat’ to use force contrary to Article 2(4) of the UN Charter, unless the particular use of force envisaged would be directed against the territorial integrity or political independence of a state or the purposes of the United Nations or, if it were intended as a means of defence, the envisaged use of force would violate the principles of necessity and proportionality. The mere possession of nuclear weapons implies that a state adheres to the practice of ‘policy of deterrence’. However, the ICJ stated that it “does not intend to pronounce here upon the practice known as the ‘policy of deterrence’ even though a significant proportion of the international community adheres to such a policy”. The ICJ decided it could not find an opinio juris on this issue of ‘deterrence’. The judges of the ICJ were sharply divided jurisprudentially and doctrinally over this issue of the legality of the threat or use of nuclear weapons. If Iran came into possession of nuclear weapons, the ICJ’s inability to declare the use of nuclear weapons in extreme circumstances of self-defence illegal could well be used to argue for Iran’s claims to possession by its proponents.

Even though there is public denial by the Iranian authorities of attempts to pursue nuclear weapons, Iran would not be committing blasphemy under Shariah Law (Islamic Law) if it were to acquire nuclear weapons or any weapons of mass destruction for the sake of self-defence. Despite there being a strict jus in bello within Shariah Law which forbids a host of activities in the situation of a war including starting a war, summary executions, torturing of prisoners of war, mutilation of dead bodies, using poisoned weapons etc, there are Islamic juristic arguments for the possession of nuclear weapons for the sake of deterrence and only to be used as a second-strike capability. The Islamic Scholars of Al-Azhar Religious Ruling Committee of Al-Azhar University, Cairo recently issued a fatwa which stated that developing nuclear weapons was a “religious obligation.” The juristic elements of Sunni Islam may have their differences with their Shi’a counterpart, but it is difficult to have widely divergent views on the common Quranic statement:

“Make ready against them all you can of force including steeds of war, to cast fear into the hearts of your enemy and the enemy of Allah and besides those whom you do not know but Allah knows.” [Chapter 8: 60]

The lack of consensus in the international community concerning the legality/illegality of possession and use of nuclear weapons indicates how difficult this issue is to arbitrate. The difficulty lies, on the one hand in the nuclear weapon’s destructive ability, which totally negates international humanitarian law and the rule of proportionality in response to an armed attack, and on the other hand the right to self-defence for a sovereign state by means it deems necessary.

The only international legal handcuffs that prevent Iran from pursuing her nuclear weapons aspirations are her commitment to the NPT. However, in extenuating circumstances Iran is given the ‘keys to the handcuffs’, which she may decide to use and release herself from such obligations. Iran will obviously have to face the political consequences for this decision.

From an Islamic perspective, Iran is duty bound to prepare the ‘steeds of war’ against her enemies but she is also obligated to adhere to the rules of conduct in warfare, which strongly favours the humanitarian view. It looks like Iran will be faced with the same dilemma as the ICJ with regards to nuclear weapon usage if they come into possession.

The fear of ‘rogue states’ coming into possession of nuclear weapons seem to be more acute than ever before in these unbalanced times of world power, where polarisation of military might has caused more armed conflicts than ever before. It is possible that if nuclear weapons are widely available they may lose their awe-inspiring attractiveness as an effective weapon similar to poison or biological weapons which are relatively easy to make. Hence a ban may be more realistic.

There will always be ideological, ethical and moral arguments for and against possession of such weapons of mass destruction, however, these cannot hide the fact that all weapons are merely instruments of the political will and any attempts to prevent the annihilation of man by man should be directed towards political will.

Dr Ali Ahmed-Shuaib
London
United Kingdom