Doctor Strangelove and the International Court of Justice’s 1996 Opinion or : How I Learned to Stop Worrying and Love the Legality of the Threat or Use of Nuclear Weapons

« Yet another article on the 1996 opinion ! » will exhale the well-informed internationalist. Dear readers, you are indeed facing a paper based on the well-known opinion of the International Court of Justice in which it answered the following question : « Is the threat or use of nuclear weapons in any circumstances permitted under international law ? » (resolution 49/75, adopted on the 15th december of 1994). For what seemed to be a simple question, the Court’s demonstration is somewhat difficult to grasp as its famous paragraph 2E illustrates : the use of nuclear weapons « would generally be contrary » to international law but the case where a State’s survival is at stake won’t allow the Court to « conclude definitively » to the question asked. (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ, Reports 1996, p. 266).

This quotation, far from being contradictory, is known as striking a balance between States that possess nuclear weapons and those who don’t[1]. Readers, be reassured, the writer of those few lines is aware of the large litterature on the subject[2] and therefore wont come back to the Court’s reasoning itself as it was well studied elsewhere : « phew! ». Instead of wondering whether the Court reads Shakespeare[3] I kindly suggest it watches Dr. Strangelove or : How I Learned to Stop Worrying and Love the Bomb (1964). This should bring us some comfort when facing the apparant frustration caused by the paragraph 2E quoted above.

Before going deeper into this point, let’s introduce a film which shouldn’t need any introduction[4]. In Dr. Strangelove, Kubrick pictures a world where States’ leaders let their flaws and vices get the better of them when facing a nuclear crisis where the survival of mankind is at stake. When Kubrick decided to direct a movie on the thermo-nuclear war at the end of the 1950’s, he wished to address a concern he had about the plausability of such threat. His fear was intensified by the 1962 cuban missile crisis which truly traumatised the U.S. population [4].

In order to achieve his project Kubrick bought the rights of Peter George’s book Red Alert (1958) and titled the original script On the Edge of Doom. The book being a thriller aimed at expressing the anxiety surrounding the nuclear threat, Kubrick’s adaptation initially followed the same path. Yet, Dr. Strangelove is nowhere near a thriller or an action movie, contrary to Sidney Lumet’s Fail Safe released the same year (1964). Why did Kubrick chose to direct a satire, a comedy, on such a grave subject ?

The answer follows from an observation made by Kubrick while working on the scenario : it is very difficult to dissociate the seriousness of the nuclear threat with the fact that its occurrence (or non-occurrence) depends on men dominated by their vices and desires. Dr. Strangelove puts in motion an apparant paradox. A priori, the gravity of the nuclear threat calls for an exclusion of personal interests. Yet, and here is the paradox, it is when facing such a menace that those interests violently reappear (for a study of the contradictions underlined in the movie, see here).

That is why all protagonists of the movie act selfishly, preferring to give weight to their personal desires : a buffet is at disposal in the war room, underlying the inability to push aside such a primal instinct.

General Jack D. Ripper launches the first nucelar strike to the USSR believing the latter is responsible of his infertility (through some elaborate plan involving the poisoning of the U.S. public water; see video below). Furthermore, General « Buck » Turgidson answers a phone call from his lover when in a meeting with the U.S. President. And the list goes on.

Even though this behaviour should be of some concern for mankind, the approach taken by Kubrick leads the audience to accept the fate of its kind and have a few laugh before the doomsday clock hits midnight. Surely, Kubrick’s take on the nuclear holocaust is somewhat nihilistic. Still, it manages to describe this fatality in such a way where we end up embracing the situation just as Major « King » Kong embraces it while practicing a rodeo on the bomb launched to the USSR by General Ripper. Hence the movie’s subtitle : How I Learned to Stop Worrying and Love the Bomb. In other words, the picture underlines the permanent contradictions which lie underneath the use of nuclear weapon. Contradictions which the Court precisely had to deal with in its opinion.

For instance, when a disagreement/fight between a US general and a soviet ambassador took place the US President intervened and shout : « Gentlemen, you can’t fight in here, this is the war room! » (for those of you who are curious see the video below).

The President’s order reminds us of the principle of nuclear deterrance which does not rest on the use of a nuclear weapon but still forces us to take such use into account because of the threat it represents. Isn’t it what the International Court of Justice tries to reconcile when stating the use of nuclear weapon is generally prohibited but that an exception where the very survival of State is at stake could not allow it to conclude definitively on such question ?

If the audience can laugh and embrace the absurdity of the nuclear dilemma with Major « King » Kong, it is a whole other story for the legal expert reading the 1996 opinion. Tired of reading, and re-reading, the opinion in order to find an answer to what seemed to be a simple question we should all come to the bitter conclusion that the Court couldn’t do anything better than that. As Kubrick showed in 1964, it is difficult to rationalise the use of nuclear weapons. The 1996 opinion is merely in continuity with Dr. Strangelove’s finding as it fails to legally rationalise the very same question. This conclusion incites us to believe nuclear weapons constitute a judicial order of their own, having its own logic which is not – entirely – the same as international law (N. Haupais, « Dissuasion et droit international », Annuaire Français de Relations Internationales (2016), vol. XVII, pp. 535-549).

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Jean-Baptiste Dudant

[1] Une introduction critique au droit international, O. Corten et al., pp. 46-47.

[2] Notably since the edition in 1999 of International Law, the International Court of Justice, par L. Boisson de Chazournes et Philippe Sands.

[3] E. Wyler, « La CIJ lit-elle Shakespeare (…) », Journal du droit international, year 138 (2011), n°1, pp. 67-89.

[4] The following is based on the documentary The Making of Dr. Strangelove, available on Youtube.

[5] See the episode 13 of the season 2 of Mad Men on this point, « Meditations in an Emergency ; as well as Joe Dante’s not-enough-famous Panic on Florida Beach (1992) ; in the legal litterature, you can read Charles Garraway’s testimony on the matter in Nuclear Weapons Under International Law’s foreword (2014).

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