Nuclear Age Peace Foundation

Blog

Nuclear Weapons: A Call for Public Protest

Nuclear weapons, which are instruments of genocide, incinerate human beings. The Peace Memorial Museums in Hiroshima and Nagasaki display gruesome evidence of the atomic bombings of those cities; one can see walls where human shadows remain after the humans who cast those shadows were incinerated into elemental particles.

During World War II the Nazis put their victims into gas chambers and then incinerated them in ovens. While the Nazis took their victims to the incinerators, those who possess and threaten to use nuclear weapons plan to take these weapons, that are really portable incinerators, to the victims. Nuclear weapons eliminate the need for gas chambers. They provide a one-step incineration process — for those fortunate enough to die immediately.

The behavior of the Nazis leading up to and during World War II is universally condemned. The German people are often criticized for failing to oppose the atrocities of the Nazi regime. How much more culpable would be the citizens of the states that now possess nuclear weapons should these instruments of genocide be used again!

The German people lived in fear of the Nazis. The same cannot be said for the citizens of the nuclear weapons states, particularly the Western nuclear weapons states. Their silence in the face of their governments’ reliance upon these portable incinerators makes them virtual accomplices in planned crimes against humanity.

It is no excuse to say that these instruments of genocide exist only to deter an enemy. In the first place, there are no enemies among nuclear weapons states in the aftermath of the Cold War. More important, there is no justification for threatening to murder hundreds of millions of people in the name of national security. Deterrence is only a theory, and on many occasions, most famously the Cuban Missile Crisis, it has come close to breaking down.

The International Court of Justice has found that the threat or use of nuclear weapons would be generally illegal, and that it would be virtually impossible to use nuclear weapons without violating the laws of armed conflict and particularly international humanitarian law. The Court in 1996 reaffirmed that all nuclear weapons states have an obligation under international law to achieve nuclear disarmament “in all its aspects.”

Given the immorality and illegality of using or threatening to use nuclear weapons, where is the public outrage at the continued reliance upon these weapons by the governments of nuclear weapons states in the aftermath of the Cold War? Many people seem to believe that the threat of nuclear holocaust ended with the end of the Cold War, but this is far from the actual situation. Despite some bilateral phased reductions in the U.S. and Russian nuclear weapons stockpiles, there are still some 36,000 nuclear weapons in the possession of the nuclear weapons states, with the largest number still stockpiled by the former Cold War enemies, the U.S. and Russia.

Worse yet, our nation’s foreign policy is still wedded to the threatened use of these weapons. In late 1997 President Clinton signed a Presidential Decision Directive reserving the right for the United States to be the first to use nuclear weapons, and giving the Pentagon increased flexibility to retaliate against smaller states that might use chemical or biological weapons against the U.S. or its allies. This Presidential Decision Directive was prepared in secret with no public discussion, and came to public light only because it was leaked to the press.

Another secret study that has recently come to light reveals a frightening approach to nuclear arsenals within the U.S. military command. The study, “Essentials of Post-Cold War Deterrence,” was prepared by the U.S. Strategic Command, and was released only after a freedom of information request by a non-governmental organization concerned with security issues.

The study states, “Because of the value that comes from the ambiguity of what the U.S. may do to an adversary if the acts we seek to deter are carried out, it hurts to portray ourselves as too fully rational and cool-headed.” It continues, “The fact that some elements (of the U.S. government) may appear to be potentially `out of control’ can be beneficial to creating and reinforcing fears and doubts within the minds of an adversary’s decision makers. That the U.S. may become irrational and vindictive if its vital interests are attacked should be part of the national persona we project to all adversaries.”

In effect, this study by the U.S. Strategic Command says that the U.S. should not only continue to base its national security on threatening to retaliate with nuclear weapons, but its decision makers should also act as though they are crazy enough to use them. One is left with the eerie feeling that these supposedly rational planners advocating irrationality may be just crazy enough to actually use these weapons if an opponent was crazy enough to call their bluff or appeared to them to do so.

Military leaders in the U.S. and other nuclear weapons states are not giving up their reliance upon their nuclear arsenals. There is little reassurance in their secret studies that argue for portraying themselves as “irrational and vindictive.”

A former commander of the U.S. Strategic Command, General Lee Butler, has made many strong public pleas for nuclear weapons abolition since his retirement from the Air Force in 1994. He recently stated, “I think that the vast majority of people on the face of this earth will endorse the proposition that such weapons have no place among us. There is no security to be found in nuclear weapons. It’s a fool’s game.”

General Butler was also a member of a prestigious international commission organized by the Australian government, the Canberra Commission on the Elimination of Nuclear Weapons. This commission issued a report in 1996 stating, “The proposition that nuclear weapons can be retained in perpetuity and never used — accidentally or by decision — defies credibility. The only complete defence is the elimination of nuclear weapons and assurance that they will never be produced again.”

If the American people and the citizens of other nuclear weapons states want to end their role as unwilling accomplices to threatened mass murder of whole nations, they must make their voices heard. They must demand that their governments proceed with nuclear disarmament “in all its aspects,” as called for by the International Court of Justice.

If we fail to protest our reliance upon these instruments of genocide, and if these weapons are ever used, it will be “We, the People” who will stand culpable before history of even greater crimes than those committed by the Nazis. We will not have the excuse that we, like most Germans in the Nazi era, did not protest because we feared for our lives. It will be our indifference when we could have made a difference that will be the mark of our crime against humanity.

January 11, 1998
New U.S. Guidelines on Nuclear Warfare Should be Released to the Public
New guidelines for the use of U.S. nuclear weapons were signed by the president in November 1997. These guidelines, which are contained in a four-page Presidential Decision Directive (PDD), have not been released to the public. Aspects of the guidelines, however, were leaked to the press and confirmed by administration officials. What is known about the new guidelines include the following:
- they were developed entirely in secret without any public, or even Congressional, discussion;
- they replace guidelines developed in 1981 during the Reagan presidency;
- they provide that the U.S. will continue to rely on nuclear arms as the cornerstone of its national security for the indefinite future;
- they no longer include a plan to fight and “win” a protracted nuclear war;
- they reserve the right for the U.S. to be the first to use nuclear weapons;
- they retain the option of massive retaliation to a nuclear attack, including by launch on warning;
- they give the Pentagon increased flexibility to deter or retaliate against smaller states that might use chemical or biological weapons against the U.S. or its allies;
- they provide for the U.S. to maintain a triad of nuclear forces consisting of bombers, land-based missiles, and submarine-based missiles;
- they call for the U.S. to retain options to use nuclear weapons against Russia; and
- they provide for increasing the number of sites to be targeted in China.
On the positive side, the new guidelines have eliminated the foolish and hopeless idea that it was possible to fight and win a nuclear war. This is an idea that has been thoroughly discredited, even by President Reagan who stated publicly that “nuclear war cannot be won, and must never be fought.” It must also be considered positive that, due to the leak, we now know something about these guidelines, and can respond to what has been released. The negative aspects of these guidelines, however, are substantial. The fact that they were developed without involvement from the public and Congress is in the best tradition of a totalitarian state. On an issue of such major public importance as strategy for using nuclear weapons, it is reprehensible that no attempt would be made to solicit public or Congressional views.

By indicating that the U.S. will continue to rely for the indefinite future on nuclear weapons for its national security, the U.S. is demonstrating its hypocrisy in relation to its promise in 1995, when the Non-Proliferation Treaty was extended indefinitely, to pursue “systematic and progressive efforts to reduce nuclear weapons globally, with the ultimate goal of eliminating those weapons….” Further, the International Court of Justice ruled in 1996 that there was an obligation to “bring to a conclusion negotiations leading to nuclear disarmament in all its aspects….” Indefinite reliance upon these genocidal instruments is not consistent with their ultimate elimination, nor with the obligation to conclude negotiations for complete nuclear disarmament.

In China there was strong criticism of the new U.S. policy which increases U.S. targeting of China. A Chinese foreign ministry spokesman stated, “Now that the Cold War is already over, the international situation has eased a lot. The United States still possesses a large arsenal of nuclear weapons. It stubbornly sticks to its policy of nuclear deterrence. It goes against the trends of peace, cooperation and development in our world.”

The new guidelines reflect the continuation of U.S. policy to rely upon nuclear weapons as a central instrument of national security. These guidelines have not changed our policies of threatened first use or massive retaliation, which at their core are policies of nuclear genocide. First use, when coupled with launch on warning, commits us to risky, hair-trigger deployment of our nuclear arsenal with potentially catastrophic consequences.

The Presidential Decision Directive demonstrates a lack of commitment to the elimination of our nuclear arsenal, as called for by international agreements and international law. The new guidelines will undoubtedly be heavily criticized by the international community, particularly by many of the other 185 parties to the Non-Proliferation Treaty when they meet in Geneva in April and May 1998.

It would be appropriate for President Clinton to release in full the four-page Presidential Decision Directive so that the U.S. public can fully consider and debate the policy. U.S. citizens have a right to informed consent on decisions and policies that affect their security and well-being, as this policy surely does. The public and Congress should be involved in the process of determining whether or not the new policy is consistent with basic U.S. values as well as our obligations under international law and the new geopolitical reality brought on by the end of the Cold War. In the same vein, the public should be provided with targeting information for the U.S. nuclear arsenal. This information would allow U.S. citizens to be aware of what populations are being threatened with mass murder in our names.

While it may be appropriate and desirable for the President to keep details of his personal life from public view, the same cannot be said for policies related to nuclear arsenals that affect the life and future of every U.S. citizen as well as every other person in the world.
January 11, 1998
Human Rights, Wrongs, and Responsibilities

This is the 50th Anniversary year of the Universal Declaration of Human Rights, a document of vision and decency, which was proclaimed as a “common standard” for all humanity by the United Nations General Assembly on December 10, 1948. At its heart, this is a document about the equal and inalienable right of every person to live in dignity.

The Universal Declaration of Human Rights is one of the great documents of the 20th century. In fact, it is one of the great documents of all time. It gives voice to the common aspirations of all humanity to be treated fairly and justly. It includes civil and political rights, and also economic, social and cultural rights. It holds high the value and worth of each individual.

Despite the importance of this document, however, it is not widely known or appreciated throughout much of the world. Very few Americans are familiar with the document, and fewer still have read it and know of its contents. This is a failure of our educational systems. The Universal Declaration of Human Rights should be at least as well known to Americans as our own Bill of Rights, which it surpasses in its comprehensiveness.

No document, including the Universal Declaration of Human Rights, can solve the problems of humanity simply by its existence on paper. Far from it. Set down on paper, the Universal Declaration represents only the vision and hope of those who proclaimed it. To give life to the document, each generation must work actively and diligently to uphold its principles. To bring the Universal Declaration to life, each of us must work to uphold human rights and oppose human wrongs.

This is what Mahatma Gandhi did in his nonviolent protests for an end to colonialism in India. This is what Martin Luther King, Jr. and the freedom riders and other civil rights activists did in putting their bodies on the line for equal rights for all citizens in the United States. This is what the mothers of the disappeared did in standing in silent protest in Argentina during its “dirty war.” This is what Nelson Mandela and the African National Congress did in their struggle against apartheid in South Africa. This is what Bishop Oscar Romero did in working for justice in El Salvador, and what Rigoberta Menchu Tum has done in Guatemala. This is what Aung San Suu Kyi and her followers do in Burma today.

Upholding human rights and opposing human wrongs is the work of all who seek to provide food and shelter for the hungry and destitute, for all who seek justice, for all who seek an end to tyranny and oppression, for all who seek peace and an end to violence, for all who work to rid the world of nuclear weapons and other weapons of mass destruction.

Human rights demand human responsibilities. The worst atrocities of the 20th century were committed by governments, often against their own people. The Universal Declaration of Human Rights was a response in part to the genocidal abuses which occurred during World War II. But genocide has not gone away in the latter half of this century. We have only to think of Cambodia, Bosnia and Rwanda.

It is our responsibility to build an international community that is strong enough to prevent the commission of genocide from occurring ever again. A step in this direction was taken this past summer in Rome when delegates of more than 100 countries agreed to a treaty to establish an International Criminal Court. This court would hold accountable perpetrators of the most serious international crimes — genocide, crimes against humanity, war crimes, and the crime of aggression. Unfortunately, once again, as with the Landmines Convention in 1997, the United States was not among the countries supporting this important step forward.

The Fall 1998 issue of Waging Peace Worldwide includes comments on the Universal Declaration of Human Rights by Richard Falk, Frank Kelly, and Nelson Mandela. The winning essay in our Swackhamer Peace Essay Contest discusses “Human Rights and Responsibilities” is also included in this issue, as well as a proposal for a United Nations Volunteer Force by Tad Daley, comments on establishing an International Criminal Court by Kofi Annan and Benjamin Ferencz, and Senator Douglas Roche’s inaugural speech in the Canadian Senate.

January 11, 1998
Nuclear Weapons: The Global Dialogue

Nuclear weapons, which might more appropriately be called “instruments of genocide,” are the ultimate weapons of mass annihilation. Global dialogue, on the other hand, is an engaged series of communications that seeks a deeper understanding and reconciliation of differences as well as peaceful solutions to conflicts affecting the international community. Nuclear weapons necessitate global dialogue.

Throughout the Nuclear Age, most of the exchange on nuclear weapons within the nuclear weapons states has been insular, technical and restricted to an elite group of political, military, industrial and academic participants–hardly a dialogue. It has been restricted to what kind of nuclear weapons to create, how to deploy them, how they should be developed and tested, and how many are needed. This non-dialogue has taken place within national security establishments, generally behind closed doors, with little public involvement. The result has been the development of tens of thousands of nuclear weapons, reliance on untestable theories of deterrence, and security policies with the crudeness and finality of Mutual Assured Destruction (MAD).

Even in democratic societies such as the U.S., Britain and France, the public has never been offered a significant role in decisions on nuclear policy. The public has managed to intrude itself in the discourse only in extreme circumstances. One such circumstance occurred from the mid-1950s through the early 1960s when the public, with leadership from men like Albert Einstein, Linus Pauling, Bertrand Russell, and Albert Schweitzer, became justifiably worried about the health effects of the atmospheric testing of nuclear weapons. Public protests of atmospheric testing in the U.S. and elsewhere led to the signing of the Partial Test Ban Treaty, prohibiting the testing of nuclear weapons in the oceans, the atmosphere and outer space.

In the U.S., the public again entered the discourse on nuclear weapons issues in the early 1980s when Cold War rhetoric reached alarming levels. Ronald Reagan was referring to the Soviet Union as the “evil empire,” and dialogue between the leaders of the U.S. and the Soviet Union had all but vanished. Large numbers of people became active in a campaign to freeze nuclear arsenals as a first step towards nuclear disarmament. Civic and religious organizations throughout the nation added their voices in support of the freeze. On June 12, 1982 some one million people gathered in New York in support of the nuclear freeze movement.

In the mid-1980s, when the nuclear freeze movement was active in the United States, Europeans were protesting the deployment of U.S. cruise and Pershing missiles on their territories. People throughout Europe feared that with the emplacement of these nuclear-armed missiles on their soil, Europe would become the primary battleground for a nuclear war between the U.S. and Soviet Union.

Each of these periods of public involvement opened the door to dialogue between the U.S. and Soviet governments on arms control issues. Unfortunately, the governments chose to take only small steps rather than significant strides. They ceased atmospheric testing of nuclear weapons, but continued their testing underground. In doing so, they immediately reduced the environmental threat to humanity, but they failed to take the more important step of ending the nuclear arms race. The nuclear freeze movement led to a resumption of dialogue between the U.S. and the former Soviet Union. Mikhail Gorbachev, a leader with surprising vision, had become the head of the USSR. He and Ronald Reagan almost agreed to the elimination of their nuclear arsenals at a face to face meeting in Reykjavik, Iceland in 1986. For a few hours the two leaders, without their national security subordinates, actually engaged in a serious dialogue on eliminating their nuclear weapons. In the end, they were unable to reach an accord due to President Reagan’s commitment to building a missile defense system. A few years later, however, they began the process of strategic arms reductions. The U.S. and USSR were also able to agree to the elimination of all intermediate-range nuclear missiles, leading to the removal of U.S. cruise and Pershing missiles from Europe.

Among governments in the international community, a dialogue on nuclear weapons began almost immediately after the use of nuclear weapons by the U.S. at the end of World War II. The very first resolution of the United Nations in January 1946 called for the creation of an Atomic Energy Commission with the task of eliminating nuclear weapons from national arsenals. Early efforts to achieve the international control of nuclear weapons at the United Nations failed, however, and the U.S. began atmospheric testing of nuclear weapons in the Pacific in mid-1946. Three years later the USSR began testing its own nuclear weapons.

In 1968 the international community reached agreement on a treaty to prevent the proliferation of nuclear weapons. This agreement defined two classes of states, those with nuclear weapons prior to January 1, 1967, and all other states. In effect, this treaty divided the world into nuclear “haves” (U.S., USSR, UK, France and China), and nuclear “have-nots” (all other countries). It effectively established a system of nuclear apartheid. In Article VI of this treaty, the nuclear weapons states promised the other states that they would proceed with good faith negotiations for nuclear disarmament. Today, 30 years later, many non-nuclear weapons states rightfully question the good faith of the nuclear weapons states.

In 1995 the dialogue on non-proliferation and disarmament continued when the parties to the Non-Proliferation Treaty (NPT) held a review and extension conference. At this conference, the nuclear weapons states sought an indefinite extension of the treaty, and brought much pressure to bear on non-nuclear weapons states to achieve this goal. A number of the non-nuclear weapons states argued for extensions for periods of time (such as 5 to 25 years) with renewals contingent upon progress by the nuclear weapons states in keeping their Article VI promises. In the end, the nuclear weapons states prevailed and the treaty was extended indefinitely.

Certain non-binding commitments, though, strongly advocated by the non-nuclear weapons states, were agreed to by the nuclear weapons states. These were: adoption of a Comprehensive Test Ban Treaty (CTBT) in 1996, undertaking negotiations for a Fissile Material Cut-off Treaty, and the promise to engage in the “determined pursuit… of systematic and progressive efforts” to achieve nuclear disarmament. A CTBT was adopted in 1996, but negotiations have yet to begin on a fissile material cut-off. The “determined pursuit… of systematic and progressive” efforts by the nuclear weapons states to achieve nuclear disarmament is not apparent.

There are encouraging developments of more recent public involvement in the global dialogue on nuclear weapons. In the mid-1990s non-governmental organizations (NGOs) came to the NPT Review and Extension Conference and lobbied for a commitment to the elimination of nuclear arsenals. When their lobbying of the nuclear weapons states fell largely on deaf ears, these NGOs prepared and adopted the Abolition 2000 Statement, which calls for negotiating a treaty by the year 2000 for the phased elimination of nuclear weapons. The goal of these NGOs was to enter the 21st century with such a treaty in place. These NGOs and others formed themselves into a global network to eliminate nuclear weapons, which is called Abolition 2000. Organizations in the network have attempted to enter into a dialogue with states on the issue of abolishing nuclear arsenals.

Another major citizen activity that brought the public into the global dialogue on nuclear weapons was the World Court Project. This project sought a decision from the International Court of Justice (ICJ) on the legality of the threat or use of nuclear weapons. Over 600 NGOs lobbied at the United Nations and around the world in support of taking this matter to the ICJ. They succeeded in getting both the World Health Organization and the UN General Assembly to ask the Court for an advisory opinion on the threat or use of nuclear weapons.

Oral hearings at the Court took place in October and November 1995. The nuclear weapons states and their NATO allies argued that the Court should not issue an opinion but, if it did, it should rule that the threat or use of nuclear weapons would be legal under certain circumstances. Nearly all of the other states that came before the Court argued that the threat or use of nuclear weapons would be illegal under international law under any circumstances.

On July 8, 1996 the Court issued its opinion. It found that the threat or use of nuclear weapons would be generally illegal. Based upon the facts before it and the current state of international law, however, the Court was unable to conclude whether or not the threat or use of nuclear weapons would be legal or illegal in an extreme circumstance of self-defense in which the very survival of a state would be at stake. The Court also said that any threat or use of nuclear weapons that violated international humanitarian law would be illegal. Thus, even in an extreme circumstance of self-defense, when its very survival was at stake, a state would still have to use nuclear weapons in such a way as not to injure or kill civilians and not to cause unnecessary suffering to combatants. Because of the nature of nuclear weapons (instruments of genocide) this would not be possible.

The Court concluded its opinion by stating: “There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.” The nuclear weapons states have thus far largely ignored this obligation. The UN General Assembly has responded by referring to this obligation in annual resolutions calling upon “all States immediately to fulfill that obligation by commencing multilateral negotiations … leading to an early conclusion of a nuclear weapons convention prohibiting the development, production, testing, deployment, stockpiling, transfer, threat or use of nuclear weapons and providing for their elimination.” These resolutions have been adopted by the UN general Assembly in 1996 and 1997.

Currently, many prominent voices are being heard in a decidedly one-sided attempt at global dialogue. These include distinguished international personalities–including U.S. General Lee Butler, former U.S. Secretary of Defense Robert McNamara, British Field Marshall Lord Carver, former French Prime Minister Michel Rocard, and Nobel Peace Laureate Joseph Rotblat–who were called together by the Australian government in the Canberra Commission on the Elimination of Nuclear Weapons. This commission made a strong plea for the elimination of nuclear arsenals in their 1996 report. They stated, “The proposition that nuclear weapons can be retained in perpetuity and never used–accidentally or by decision–defies credibility. The only complete defence is the elimination of nuclear weapons and assurance that they will never be produced again.”

Some 60 former generals and admirals from throughout the world, also joined the call for the abolition of nuclear weapons in late 1996. The generals and admirals argued, “We believe… that business as usual is not an acceptable way for the world to proceed in nuclear matters. It is our deep conviction that the following is urgently needed and must be undertaken now:

“First, present and planned stockpiles of nuclear weapons are exceedingly large and should now be greatly cut back;

“Second, remaining nuclear weapons should be gradually and transparently taken off alert, and their readiness substantially reduced both in nuclear weapons states and in de facto nuclear weapons states;

“Third, long-term international nuclear policy must be based on the declared principle of continuous, complete and irrevocable elimination of nuclear weapons.”

In early 1998 over 100 international civilian leaders, including some 50 current or past heads of state or heads of government, also joined in the call for eliminating nuclear arsenals. These civilian leaders argued that the following six steps should be taken immediately:

1. Remove nuclear weapons from alert status, separate them from their delivery vehicles, and place them in secure national storage.

2. Halt production of fissile materials for nuclear weapons.

3. End nuclear testing, pending entry into force of the Comprehensive Test Ban Treaty.

4. Launch immediate U.S./Russian negotiations toward further, deep reductions of their nuclear arsenals, irrespective of START II ratification.

5. Unequivocal commitment by the other declared and undeclared nuclear weapon states to join the reduction process on a proportional basis as the U.S. and Russia approach their arsenal levels, within an international system of inspection, verification, and safeguards.

6. Develop a plan for eventual implementation, achievement and enforcement of the distant but final goal of elimination.

Nuclear tests by India and Pakistan in May 1998 impacted the global dialogue, underscoring the Indian position that they will live in a world with no nuclear weapons, but not in a world of nuclear apartheid. It reflects the failure of the global dialogue that states as poor as India and Pakistan would find it necessary to devote any of their resources to nuclear weapons when so many of their people are without adequate food, shelter, education, and health care.

Over the years, religious organizations have from time to time spoken out on nuclear weapons issues. Some 75 U.S. Catholic Bishops associated with Pax Christi USA issued an important statement in June 1998 in which they challenged the theory of deterrence. Their statement concluded, “[T]he time has come for concrete action for nuclear disarmament. On the eve of the Third Millennium may our world rid itself of these terrible weapons of mass destruction and the constant threat they pose. We cannot delay any longer. Nuclear deterrence as a national policy must be condemned as morally abhorrent because it is the excuse and justification for the continued possession and further development of these horrendous weapons. We urge all to join in taking up the challenge to begin the effort to eliminate nuclear weapons now, rather than relying on them indefinitely.”

In June 1998, eight middle power nations, referring to themselves as the New Agenda Coalition (Brazil, Egypt, Ireland, Mexico, New Zealand, Slovenia, South Africa, Sweden), called for entering the new millennium with a commitment in place to achieve the elimination of nuclear weapons. In important respects, the call of the New Agenda Coalition echoed that of Abolition 2000. “The international community must not enter the third millennium,” the eight nation declaration asserted, “with the prospect that the maintenance of these weapons will be considered legitimate for the indefinite future, when the present juncture provides a unique opportunity to eradicate and prohibit them for all time. We therefore call on the Governments of each of the nuclear-weapons States and the three nuclear-weapons-capable States to commit themselves unequivocally to the elimination of their respective nuclear weapons and nuclear weapons capability and to agree to start work immediately on the practical steps and negotiations required for its achievement.”

While the chorus of voices seeking to eliminate nuclear weapons is growing and includes many significant leaders, a real dialogue is not yet occurring. The nuclear weapons states are not taking seriously the calls for abolition, and they are not responding to these calls. For the most part, the acts of the nuclear weapons states constitute a continuation of the status quo. By the behavior of the nuclear weapons states, including their lack of dialogue, one would think that the Cold War had not ended nearly ten years ago.

We appear to be in a dialogue of the deaf. The people speak, but their voices are still weak. The political leaders and national security establishments of the nuclear weapons states do not respond. Presidents Clinton and Yeltsin have been practically moribund with regard to their own nuclear dialogue. By their work to extend the NPT indefinitely and to achieve a Comprehensive Test Ban Treaty, they have, arguably, only sought to perpetuate nuclear apartheid. They also pushed back the date for completing the START 2 nuclear arms reductions from January 1, 2003 to December 31, 2007.

Presidents Clinton and Yeltsin certainly have not moved decisively toward eliminating the nuclear threat to humanity or reducing their own arsenals. I believe that they will be judged harshly in the future for missing this historic opportunity. It is unfortunate that they are now being judged harshly for their respective addictions rather than for their abdication of responsibility on this issue of greatest importance to humanity’s future.

Dialogue is a characteristic of a healthy society. People must speak and listen to each other. Without dialogue, democracy fails. Without dialogue, needs go unmet and preventable disasters occur. In a global society, with technologies as powerful as nuclear weapons, dialogue is essential if we are to prevent major catastrophes.

We can learn from the history of the Nuclear Age that when enough people speak with a strong and unified voice the political leaders will respond. However, if the people do not speak, their political leaders will be unlikely to alter the status quo by themselves. This is one of the great tragedies of our time. Our political leaders have led by following. This places additional responsibility on people everywhere. More and more people must again make their voices heard on nuclear disarmament. They must demand an end to secrecy and elitism with regard to decisions on nuclear armaments. But most of all, they must demand an end to the nuclear weapons era. They must demand negotiations on the elimination of nuclear armaments, and the conclusion of a treaty to complete this process.

The future of humanity and much of life remains in jeopardy of annihilation by nuclear arsenals. The promises of the nuclear weapons states for good faith negotiations for nuclear disarmament remain to be fulfilled. The people of the world, and particularly the people of the nuclear weapons states, must demand that the promise of Article VI of the Non-Proliferation Treaty for good faith negotiations to achieve nuclear disarmament, be kept.

There are hopeful signs. The growth of Abolition 2000 to over 1,100 organizations is a sign of hope. In Japan, in only three months, over 13 million people signed the Abolition 2000 International Petition calling for ending the nuclear threat, signing a treaty to eliminate nuclear weapons, and reallocating resources to meet human needs. Abolition 2000’s goal of achieving an international treaty on nuclear disarmament by the year 2000 has now been echoed by the eight nations of the New Agenda Coalition. It is a reasonable goal. It provides an immediate focus for a global dialogue on nuclear disarmament. The missing actors in this dialogue are the leaders of the nuclear weapons states. The people must now lead them to the negotiating table.

January 11, 1998
The Universal Declaration at Fifty: David Krieger interviews with Richard Falk

DK: As we approach the 50th anniversary of the Universal Declaration of Human Rights how do you assess the progress in implementing its important standards?

RF: The formulation of the Universal Declaration of Human Rights 50 years ago was an achievement that has produced results far in excess of anything that could reasonably have been anticipated at the time it was adopted. It was originally viewed as an awkward response to vague aspirations and public opinion. There was no real feeling of serious commitment surrounding its adoption. It was a prime example of what is often called “soft law.” It was viewed as something that the governments gave lip service to in this declaratory form that was not even legally obligatory and had no prospect of implementation. Many of the participating countries at the time didn’t practice human rights in their own societies, so there was an element of a hypocrisy built into the endorsement of this declaration from the moment of its inception. One has to ask why did something that started with such low expectations of serious impact on the world turn out to be one of the great normative documents of modern times, perhaps of all times.

The Declaration has been referred to as the most important formulation of international human rights law ever made. I think one of the things that helps explain this rise to prominence was that the citizens associations concerned with human rights found effective ways to take the Declaration seriously, as well, and to exert effective pressure on many governments to take the Declaration or parts of it seriously. This was a very instructive example of the degree to which what states do with respect to normative issues can be very much influenced by the degree of effective pressure brought to bear by civil society, both within particular countries and transnationally. The role of Amnesty International and Human Rights Watch and other groups, I think, was instrumental in putting the provisions and the impetus of the Declaration onto the political agenda of the world.

DK: You feel that the progress that has been made in human rights since the adoption of the Universal Declaration of Human Rights could not have happened without strong pressure from groups in civil society?

RF: Yes, I’m saying that was an indispensable condition for the partial implementation of the Declaration. There were other factors that I think are also important to identify. One of them was the fact that once human rights emerged with this greater visibility, then governments, particularly in the West, found it a useful way to express their identity, their role in the world. It was useful as a means to exert pressure on the Soviet Union and the Soviet bloc. It was part of the Cold War, a normative dimension that related the conflict to widely shared values. This was the idea that freedom was definitely linked to the promotion of human rights.

Then came the Helsinki Process in the mid-1970s in which the Soviet bloc was given a kind of stability for the boundaries that emerged in Europe at the end of WWII. In exchange, Moscow accepted a kind of reporting obligation about human rights compliance in their countries at the time. Conservatives in the U.S. criticized the Helsinki Accords harshly because they argued that the agreement was a give-away; they alleged it is legitimizing these improper boundaries and in exchange we get this kind of paper promise that has no meaning at all.

As events turned out, the Helsinki emphasis on human rights was much more important than the stabilization of boundaries. Reliance on human rights was critical for a process of legitimizing and mobilizing the opposition forces that operated in Eastern Europe, particularly groups like Charter 77 in Czechoslovakia, Solidarity in Poland and even the Moscow Trust group in the Soviet Union. It became clear that, in terms of struggles of resistance within particular societies against oppressive states, international human rights norms provided important political foundations for their commitment and their activity. I think this interplay between human rights norms and procedures at an international level and resistance politics in societies governed in an oppressive manner. was a second important strand.

The third one that I would mention is the anti-Apartheid campaign, which was based on a worldwide normative consensus that Apartheid represented an unacceptable form of racial persecution that was, in effect, such a systemic violation of human rights that it amounted to a crime against humanity. This was reinforced by grassroots activists in the critical countries of the United Kingdom and the United States that put such pressure on their governments that even Thatcher’s Britain and Reagan’s U.S. felt obliged to go along with an international sanctioning process that was directed at Apartheid, and probably contributed to the peaceful abandonment by the majority of the white elite of Apartheid. This was something no one could have anticipated a decade before it occurred – people thought either Apartheid was so well established, so much in control of the society, that it was not feasible to challenge it, or that the challenge would come about by a very difficult and bloody civil war. I think that mounting this peaceful challenge was a major triumph in terms of peaceful transformation that was aided by a kind of human rights demand that itself can be traced back to the foundations that one finds in the Universal Declaration.

DK: Do you feel that the successes that have been achieved up to this point can be built upon, and the Universal Declaration will become an even more significant document and guideline for the 21st century?

RF: This is a matter of conjecture that is hard to be very clear about at this stage because you find that both possibilities seem susceptible of pretty strong supportive arguments. My sense is that there is a sufficient constituency committed to human rights that will continue to invoke the Universal Declaration and the authority that it provides as a foundation for carrying on campaigns of one sort or another. One of the things that emerged in the 1990s was the degree to which transnational women’s groups and indigenous peoples had organized themselves around a human rights agenda. Their presence was definitely felt in Vienna at the UN Human Rights Conference in 1993, and elsewhere, evidently believing that their own objectives and movements as capable of being articulated by reference to human rights demands and aspirations.

I think there is a political ground on which post-Cold War world human rights can advance further. There are also the important efforts now, outside the West, expressing different concerns but asking the same question: “What do we want the human rights process to become?” These voices are saying, we didn’t participate in the initial formulations. We think the Declaration and its norms are too individualistic or too permissive in terms of the way it approaches the relationship of the individual to the community. This is a common criticism you find in Islam and Asia. How can the Declaration be extended to represent all the peoples of the world and allow them the sense that it not only substantively is reflective of their values, but also that they’ve had some opportunity to participate in the articulation of the norms. I think it is very important that we recognize the incompleteness of the normative architecture that has flowed from the Declaration, if understood as including the International Covenants that were formulated in 1966, and other more focused treaty instruments.

There is still very important work to be done on creating a more universally acceptable and accepted framework for the implementation of human rights.

DK: One of the human rights treaties that has been created in the aftermath of the Universal Declaration is the Convention on the Rights of the Child. It’s nearly universally adhered to. The only two countries that currently have not ratified this important convention are Somalia and the United States. Somalia apparently doesn’t have its government organized well enough to do so, but the United States doesn’t have any excuse. Why is the United States holding out on making this Convention universal, and why is it refusing to give its support to a Convention so broadly adhered to?

RF: One needs to understand that this pattern of holding out against a nearly universal consensus is not limited to the Convention on the Rights of the Child. The United States has been playing this obstructive role in a number of different settings, including the Landmine Treaty and the implementation of the Kyoto Protocol on the Emission of Greenhouse Gases. I’m not sure about the real objections to the Convention on the Right of the Child. I know the Pentagon has mounted pressure because of the recruiting age of soldiers and the feeling that it would not be cost effective for them to give up the right to recruit young people under the age of 18, which I think is the age in the Convention. The present recruiting age of American soldiers includes people who are 17. It seem like a small difference to justify a holdout on a treaty that enjoys such wide backing.

Let me take the opportunity to say that the fact that something is put into treaty form or is in the Universal Declaration is no assurance that it’s going to be taken seriously, either by the human rights part of civil society or by governments. One needs to come to the awareness that when we talk about human rights what we really mean is civil and political rights. Social, economic and cultural rights, which are broadly set forth in the Universal Declaration and are the subject of a separate covenant that was signed in 1966, have received very little implementation over the years. The human rights organizations are by and large devoting all their resources to the promotion of selected items of political and civil rights. For much of the world, particularly the non-Western world, economic and social rights are at least as important, if not more important, than civil and political rights. This is one of the reasons that these organizations are viewed with some suspicion, even the Western human rights organizations that tell governments to be less authoritarian or to increase freedom of participation, freedom of assembly, freedom of expression. I had a conversation a couple of years ago with Prime Minister Mahathir Mohamad in Malaysia, and he was very sensitive to this issue and spoke about it with sincerity and conviction. It’s also, of course, a convenient pretext for not being responsible and accountable in the area of political and civil relations. It is true that for human rights to be broadly accepted as a desirable source of obligation they have to be seriously responsive to the problems of acute poverty and economic and social deprivation as well as to the problems that arise from authoritarian governments and from the absence of democratic practices.

DK: Do you think that the United States and other Western states are failing in that regard? And, for that matter, also civil society? Have they failed to push for economic and social rights sufficiently?

RF: Yes, I think there’s no question, especially in the recent period where the Reagan and Thatcher administrations were very clear that they didn’t even regard economic and social rights as a genuine part of human rights. They felt these claims were an importation of a socialist ethos that was inconsistent with the way in which a market-oriented constitutional democracy should operate, and that was basic to the existence of a legitimate form of government. There is that real question. In civil society it’s been partly the feeling that it was much more manageable to conceive of human rights violations as challenges that involved very basic affronts to human dignity that arose out of abuses of governmental power, like the torture of political prisoners or summary executions and disappearances. These abuses captured the political imagination, and they were discreet policies of governments that were in many ways objectionable. Focusing on them seemed to facilitate access to media coverage. It seemed to raise issues that one could get some sort of results in relation to. It didn’t raise the ideological question of whether economic and social rights were somehow an endorsement of a socialist orientation toward policy.

DK: Of course, preventing torture and disappearances and other abuses of state power is quite important. It’s also a real problem that there is not safety net–that people are continuing to starve to death and to suffer and die from lack of health care and other very basic human rights–the right to be treated with dignity, the most basic right of all. What might we do from this point on to see that those rights are not pushed to the side or neglected entirely?

RF: There’s no question that by affirming economic and social rights, one doesn’t want to undermine the pressure to prevent the acute violations of civil and political rights. I think there are some new initiatives – there’s a new Center for the Promotion of Economic and Social Rights in New York City, started recently by several Harvard Law School graduates, that is trying to do good work in this area to bring a balance into the human rights picture. It’s not only the sense that one needs to focus on economic and social rights, but also one needs to focus on the structures that generate these violations. There’s a group in Malaysia called JUST, headed by Chandra Muzaffer, that has been very active in trying to show that the global market forces are systematically responsible for the polarization of societies throughout the world, essentially making the rich richer and the poor poorer. The dynamics of globalization contribute to an atmosphere in which even governments feel almost helpless to prevent the impoverishment of a portion of their own societies because of the strength of global capital. It’s important that we understand the thinking that is going on around the world about these issues of economic and social rights.

DK: How do you feel about the failure of the international community to adequately respond to situations of genocide that have arisen in Bosnia and Rwanda and other places? Hasn’t there been a terrible failure to uphold the right to life for hundreds of thousands, even millions of people?

RF: Yes, I think it is a revelation of the moral bankruptcy of the organized international community and of a disturbing and recurrent acceptance in this world of sovereign states of the most severe human wrongs being committed as being beyond control or prevention. At the same time, I have some mixed feelings about those who advocate intervention to overcome genocidal behavior without understanding the political and military obstacles that lie on that path. Intervention is a very difficult political process to use effectively as the United States found out in Vietnam and the Soviet Union in Afghanistan. Cheap, shallow intervention is almost worse than non-intervening. I had many disagreements with friends about the policies that should be pursued with respect to Bosnia during the unfolding of the tragedy there a few years ago. I didn’t see it as beneficial for the United Nations to establish these safe-havens or to make half-hearted gestures because, and I feel in retrospect that this view has been at least vindicated in that setting, that it would create new options for those who were committing the crimes. Unless there was the political will to defend the safe-havens – as the Srebrenica tragedy showed there was not – it would really herd potential victims together in a way that made ethnic cleansing more efficient and more horrible in its execution. One has to be very careful not to embrace a kind of facile interventionism because of our feeling of the utter moral bankruptcy of a world order system that can’t respond to genocide. To jump from inadequacy to futility is to disguise the true nature of the problem and the solution.

DK: We’ve also experienced a failure of sanctions, which has been particularly evident in relation to the sanctions imposed upon Iraq in the aftermath of the Persian Gulf War. This failure has led to the more vulnerable parts of society suffering as a result of the sanctions. What do you see as the answer to this? Do we need to reform the international system? Do we need to have an international security force? If we have problems making sanctions work and problems with intervention, what do we do when we see the worst abuses of human rights occurring?

RF: It’s a difficult challenge for which there’s no quick fix, in my view, because it’s not accidental that we don’t have adequate intervention. We don’t have a Peace Force that is disengaged from geopolitics and able to act independently. Sanctions of the sort that were imposed on Iraq have these devastating effects on civilian society. It comes out of a rather profound dominance of international political life by geopolitical considerations. In the case of the Iraqi sanctions, there was a sense of incompleteness in which the war was waged and ended, leaving Saddam Hussein in control after depicting him as such a brutal, dictatorial leader. Sanctions were a cheap way for the victorious coalition to somehow express their continuing opposition without incurring human or financial costs of any significance. The fact that the real victims of this policy were the Iraqi people was not really taken into account. I’ve seen Madeleine Albright and others confronted by this reality and they brush it aside. They just don’t want to confront that reality, and tend to say “Saddam Hussein is building palaces. If he were using his resources for his people….” The whole point of the critique is that this is a leader that is not connected with the well being of his people. If we know what the effect after seven years of these sanctions is and yet insist on continuing them, we become complicit in the waging of indiscriminate warfare against the people of Iraq.

DK: At this point in time, nearing the 50th anniversary of the Universal Declaration of Human Rights and approaching the new millennium, what advice would you offer to young people with regard to human rights and responsibilities?

RF: The last fifty years shows how much can be done by activists, young people and others, on behalf of making human rights a serious dimension of political life. I think that what needs to be carried forward is a more comprehensive implementation of the human rights that exist, filling in some gaps on behalf of indigenous peoples and the perspectives of non-western society, extending the serious implementation to matters of economic and social rights. We should push hard for this as something that one takes seriously, also for one’s own society. I think Americans particularly are good at lecturing the rest of the world as to what they should be doing, but are generally rather unwilling to look at themselves critically. We could begin the new millennium particularly with that kind of healthy self-criticism, not a kind of destructive negativism, a healthy self-criticism that would allow us to realize that we too are responsible for adherence to these wider norms of human rights; that we really have to rethink the enthusiasm that so many parts of our country have for capital punishment, for instance, in relation to the worldwide trend toward its abolition. I think we have to ask the question, do we really want to endow our state, or any democratic state, with the legal competence to deprive people of life by deliberate design? If we do endow the state with such power, it seems to me we are endorsing a kind of sovereignty-first outlook that has many other wider implications that are not desirable, and that run counter to deeper tendencies toward the emergence of global village realities.

January 1, 1998
1997 Nobel Lecture

Your Majesties, Honorable Members of the Nobel Committee, Excellencies and Honored Guests:

It is a privilege to be here today, together with other representatives of the International Campaign to Ban Landmines, to receive jointly the 1997 Nobel Peace Prize. Our appreciation goes to those who nominated us and to the Nobel Committee for chosing this year to recognize, from among so many other nominees who have worked diligently for peace, the work of the International Campaign.

I am deeply honored — but whatever personal recognition derives from this award, I believe that this high tribute is the result of the truly historic achievement of this humanitarian effort to rid the world of one indiscriminate weapon. In the words of the Nobel Committee, the International Campaign “started a process which in the space of a few years changed a ban on antipersonnel mines from a vision to a feasible reality.” Further, the Committee noted that the Campaign has been able to “express and mediate a broad range of popular commitment in an unprecedented way. With the governments of several small and medium-sized countries taking the issue up…this work has grown into a convincing example of an effective policy for peace.”

The desire to ban land mines is not new. In the late 1970s, the International Committee of the Red Cross, along with a handful of non-governmental organizations (NGOs), pressed the world to look at weapons that were particularly injurious and/or indiscriminate. One of the weapons of special concern was landmines. People often ask why the focus on this one weapon. How is the landmine different from any other conventional weapon?

Landmines distinguish themselves because once they have been sown, once the soldier walks away from the weapon, the landmine cannot tell the difference between a soldier or a civilian — a woman, a child, a grandmother going out to collect firewood to make the family meal. The crux of the problem is that while the use of the weapon might be militarily justifiable during the day of the battle, or even the two weeks of the battle, or maybe even the two months of the battle, once peace is declared the landmine does not recognize that peace. The landmine is eternally prepared to take victims. In common parlance, it is the perfect soldier, the “eternal sentry.” The war ends, the landmine goes on killing.

Since World War II most of the conflicts in the world have been internal conflicts. The weapon of choice in those wars has all too often been landmines — to such a degree that what we find today are tens of millions of landmines contaminating approximately 70 countries around the world. The overwhelming majority of those countries are found in the developing world, primarily in those countries that do not have the resources to clean up the mess, to care for the tens of thousands of landmine victims. The end result is an international community now faced with a global humanitarian crisis.

Let me take a moment to give a few examples of the degree of the epidemic. Today Cambodia has somewhere between four and six million landmines, which can be found in over 50 percent of its national territory. Afghanistan is littered with perhaps nine million landmines. The U.S. military has said that during the height of the Russian invasion and ensuing war in that country, up to 30 million mines were scattered throughout Afghanistan. In the few years of the fighting in the former Yugoslavia, some six million landmines were sown throughout various sections of the country — Angola nine million, Mozambique a million, Somalia a million — I could go on, but it gets tedious. Not only do we have to worry about the mines already in the ground, we must be concerned about those that are stockpiled and ready for use. Estimates range between one and two hundred million mines in stockpiles around the world.

When the ICRC pressed in the ’70s for the governments of the world to consider increased restrictions or elimination of particularly injurious or indiscriminate weapons, there was little support for a ban of landmines. The end result of several years of negotiations was the 1980 Convention on Conventional Weapons (CCW). What that treaty did was attempt to regulate the use of landmines. While the Convention tried to tell commanders in the field when it was okay to use the weapon and when it was not okay to use the weapon, it also allowed them to make decisions about the applicability of the law in the midst of battle. Unfortunately, in the heat of battle, the laws of war do not exactly come to mind. When you are trying to save your skin you use anything and everything at your disposal to do so.

Throughout these years the Cold War raged on, and internal conflicts that often were proxy wars of the Super Powers proliferated. Finally with the collapse of the Soviet Bloc, people began to look at war and peace differently. Without the overarching threat of nuclear holocaust, people started to look at how wars had actually been fought during the Cold War. What they found was that in the internal conflcts fought during that time, the most insidious weapon of all was the antipersonnel landmine — and that it contaminated the globe in epidemic proportion.

As relative peace broke out with the end of the Cold War, the U.N. was able to go into these nations that had been torn by internalstrife, and what they found when they got there were millions and millions of landmines which affected every aspect of post-conflict reconstruction of those societies. You know, if you are in Phnom Penh in Cambodia, and you are setting up the peacekeeping operations, it might seem relatively easy. But when you want to send your troops out into the hinterlands where four or six million landmines are, it becomes a problem, because the main routes are mined. Part of the peace agreement was to bring the hundreds of thousands of refugees back into the country so that they could participate in the voting, in the new democracy being forged in Cambodia. Part of the plan to bring them back included giving each family enough land so that they could be self-sufficient, so they wouldn’t be a drain on the country, so that they could contribute to reconstruction. What they found: So many landmines they couldn’t give land to the families. What did they get? Fifty dollars and a year’s supply of rice. That is the impact of landmines.

It was the NGOs, the non-governmental organizations, who began to seriously think about trying to deal with the root of the problem — to eliminate the problem, it would be necessary to eliminate the weapon. The work of NGOs across the board was affected by the landmines in the developing world. Children’s groups, development organizations, refugee organizations, medical and humanitarian relief groups — all had to make huge adjustments in their programs to try to deal with the landmine crises and its impact on the people they were trying to help. It was also in this period that the first NGO humanitarian demining organizations were born — to try to return contaminated land to rural communities.

It was a handful of NGOs, with their roots in humanitarian and human rights work, which began to come together, in late 1991 and early 1992, in an organized effort to ban antipersonnel landmines. In October of 1992, Handicap International, Human Rights Watch, medico international, Mines Advisory Group, Physicians for Human Rights and Vietnam Veterans of America Foundation came together to issue a “Joint Call to Ban Antipersonnel Landmines.” These organizations, which became the steering committee of the International Campaign to Ban Landmines called for an end to the use, production, trade and stockpiling of antipersonnel landmines. The call also pressed governments to increase resources for humanitarian mine clearance and for victim assistance.

From this inauspicious beginning, the International Campaign has become an unprecedented coalition of 1,000 organizations working together in 60 countries to achieve the common goal of a ban of antipersonnel landmines. And as the Campaign grew, the steering committee was expanded to represent the continuing growth and diversity of those who had come together in this global movement. We added the Afghan and Cambodian Campaigns and Radda Barnen in 1996, and the South african Campaign and Kenya Coaltion early this year as we continued to press toward our goal. And in six years we did it. In September of this year, 89 countries came together — here in Oslo — and finished the negotiations of a ban treaty based on a draft drawn up by Austria only at the beginning of this year. Just last week in Ottawa, Canada, 121 countries came together again to sign that ban treaty. And as a clear indication of the political will to bring this treaty into force as soon as possible, three countries ratified the treaty upon signature — Canada, Mauritius and Ireland.

In its first years, the International Campaign developed primarily in the North — in the countries which had been significant producers of antipersonnel landmines. The strategy was to press for national, regional and international measures to ban landmines. Part of this strategy was to get the governments of the world to review the CCW and in the review process — try to get them to ban the weapon through that convention. We did not succeed. But over the two and one-half years of the review process, with the pressure that we were able to generate — the heightened international attention to the issue — began to raise the stakes, so that different governments wanted to be seen as leaders on what the world was increasingly recognizing as a global humanitarian crisis.

The early lead had been taken in the United States, with the first legislated moratorium on exports in 1992. And while the author of that legislation, Senator Leahy, has continued to fight tirelessly to ban the weapon in the U.S., increasingly other nations far surpassed that early leadership. In March of 1995, Belgium became the first country to ban the use, production, trade and stockpiling domestically. Other countries followed suit: Austria, Norway, Sweden, and others. So even as the CCW review was ending in failure, increasingly governments were calling for aban. What had once been called a utopian goal of NGOs was gaining in strength and momentum.

While we still had that momentum, in the waning months of the CCW review, we decided to try to get the individual governments which had taken action or had called for a ban to come together in a self-identifying bloc. There is, after all, strength in numbers. So during the final days of the CCW we invited them to a meeting and they actually came. A handful of governments agreed to sit down with us and talk about where the movement to ban landmines would go next. Historically NGOs and governments have too often seen each other as adversaries, not colleagues, and we were shocked that they came. Seven or nine came to the first meeting, 14 to the second, and 17 to the third. By the time we had concluded the third meeting, with the conclusion of the Review Conference on May 3rd of 1996, the Canadian government had offered to host a governmental meeting in October of last year, in which pro-ban governments would come together and strategize about how to bring about a ban. The CCW review process had not produced the results we sought, so what do we do next?

From the third to the fifth of October we met in Ottawa. It was a very fascinating meeting. There were 50 governments there as full participants and 24 observers. The International Campaign was also participating in the Conference. The primary objectives of the conference were to develop an Ottawa Declaration, which states would sign signalling their intention to ban landmines, and an “Agenda for Action,” which outlined concrete steps on the road to a ban. We were all prepared for that, but few were prepared for the concluding comments by Lloyd Axworthy, the Foreign Minister of Canada. Foreign Minister Axworthy stood up and congratulated everybody for formulating the Ottawa Declaration and the Agenda for Action, which were clearly seen as giving teeth to the ban movement. But the Foreign Minister did not end with congratulations. He ended with a challenge. The Canadian government challenged the world to return to Canada in a year to sign an international treaty banning antipersonnel landmines.

Members of the International Campaign to Ban Landmines erupted into cheers. The silence of the governments in the room was defeaning. Even the truly pro-ban states were horrified by the challenge. Canada had stepped outside of diplomatic process and procedure and put them between a rock and a hard place. They had said they were pro-ban. They had come to Ottawa to develop a road map to create a ban treaty and had signed a Declaration of intent. What could they do? They had to respond. It was really breath-taking. We stood up and cheered while the governments were moaning. But once they recovered from that initial shock, the governments that really wanted to see a ban treaty as soon as possible, rose to the challenge and negotiated a ban treaty in record time.

What has become known as the Ottawa Process began with the Axworthy Challenge. The treaty itself was based upon a ban treaty drafted by Austria and developed in a series of meetings in Vienna, in Bonn, in Brussels, which culminated in the three-week long treaty negotiating conference held in Oslo in September. The treaty negotiations were historic. They were historic for a number of reasons. For the first time, smaller and middle-sized powers had come together, to work in close cooperation with the nongovernmental organizations of the International Campaign to Ban Landmines, to negotiate a treaty which would remove from the world’s arsenals a weapon in widespread use. For the first time, smaller and middle-sized powers had not yielded ground to intense pressure from a superpower to weaken the treaty to accomodate the policies of that one country. Perhaps for the first time, negotiations ended with a treaty stronger than the draft on which the negotiations were based! The treaty had not been held hostage to rule by consensus, which would have inevitably resulted in a gutted treaty.

The Oslo negotiations gave the world a treaty banning antipersonnel landmines which is remarkably free of loopholes and exceptions. It is a treaty which bans the use, production, trade and stockpiling of antipersonnel landmines. It is a treaty which requires states to destroy their stockpiles within four years of its entering into force. It is a treaty which requires mine clearance within ten years. It calls upon states to increase assistance for mine clearance and for victim assistance. It is not a perfect treaty — the Campaign has concerns about the provision allowing for antihandling devices on antivehicle mines; we are concerned about mines kept for training purposes; we would like to see the treaty directly apply to nonstate actors and we would like stronger language regarding victim assistance. But, given the close cooperation with governments which resulted in the treaty itself, we are certain that these issues can be addressed through the annual meetings and review conferences provided for in the treaty.

As I have already noted, last week in Ottawa, 121 countries signed the treaty. Three ratified it simultaneously — signalling the political will of the international community to bring this treaty into force as soon as possible. It is remarkable. Landmines have been used since the U.S. Civil War, since the Crimean War yet we are taking them out of arsenals of the world. It is amazing. It is historic. It proves that civil society and governments do not have to see themselves as adversaries. It demonstrates that small and middle powers can work together with civil society and address humanitarian concerns with breathtaking speed. It shows that such a partnership is a new kind of “superpower” in the post-Cold War world.

It is fair to say that the International Campaign to Ban Landmines made a difference. And the real prize is the treaty. What we are most proud of is the treaty. It would be foolish to say we that we are not deeply honored by being awarded the Nobel Peace Prize. Of course, we are. But the receipt of the Nobel Peace Prize is recognition of the accomplishment of this Campaign. It is recognition of the fact that NGOs have worked in close cooperation with governments for the first time on an arms control issue, with the United Nations, with the International Committee of the Red Cross. Together, we have set a precedent. Together, we have changed history. The closing remarks of the French ambassador in Oslo to me were the best. She said, “This is historic not just because of the treaty. This is historic because, for the first time, the leaders of states have come together to answer the will of civil society.”

For that, the International Campaign thanks them — for together we have given the world the possibility of one day living on a truly mine-free planet.

Thank you.

December 10, 1997
The Criminality of Nuclear Deterrence

Part II of II

Chapter I PURPOSES AND PRINCIPLES Article I

The Purposes of the United Nations are:

1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;

2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;

3. To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and

4. To be a centre for harmonizing the actions of nations in the attainment of these common ends.

Certainly, all of these Purposes of the United Nations would be defeated and set at naught in the event that nuclear weapons were actually used.

In the above-quoted Paragraph 48 of the Advisory Opinion the Court appears to condemn nuclear deterrence once again in no uncertain terms, and to include within this rubric the possession of nuclear weapons with the intention and imminent capability to use them. Hence, such possession of nuclear weapons is clearly illegal and, I might add, criminal as well. This conclusion by the World Court as to the illegality of the possession of nuclear weapons goes far beyond anything argued in most of the scholarly literature produced on this subject during the past two decades. For this reason, Paragraph 48 stands as a resounding vindication to that handful of courageous scholars who have taken the position that the possession of nuclear weapons is illegal despite enduring the guffaws and ridicule of their so-called colleagues.

Nuclear Weapons and the Laws of War

In regard to the defense of anti-nuclear resisters, the next critical passage of the World Court’s Advisory Opinion becomes Paragraph 77:

77. All this shows that the conduct of military operations is governed by a body of legal prescriptions. This is so because “the right of belligerents to adopt means of injuring the enemy is not unlimited” as stated in Article 22 of the 1907 Hague Regulations relating to the laws and customs of war on land. The St. Petersburg Declaration had already condemned the use of weapons “which uselessly aggravate the suffering of disabled men or make their death inevitable”. The aforementioned Regulations relating to the laws and customs of war on land, annexed to the Hague Convention IV of 1907, prohibit the use of “arms, projectiles, or material calculated to cause unnecessary suffering” (Art. 23).

It is clear, therefore, that the laws of war likewise apply to the threat and use of nuclear weapons.

Nuclear weapons are “unlimited” in their effects. Nuclear weapons also uselessly aggravate the suffering of disabled men and women and make their deaths inevitable. Nuclear weapons also cause unnecessary suffering.

Hence, t. The United States government is a contracting party to Hague Convention No. IV of 1907 and its annexed Regulations, which constitute a “treaty” and thus the “supreme Law of the Land” under Article VI of the United States Constitution. Therefore, current U.S. nuclear deterrence policies stand in anticipatory breach of Hague Convention No. IV and are therefore illegal and criminal.

Nuclear Deterrence and International Humanitarian Law

Paragraph 78 of the Advisory Opinion is directly on point with respect to maintaining the illegality of the threat and use of nuclear weapons, including therein nuclear deterrence:

78. The cardinal principles contained in the texts constituting the fabric of humanitarian law are the following. The first is aimed at the protection of the civilian population and civilian objects and establishes the distinction between combatants and non-combatants; States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets. According to the second principle, it is prohibited to cause unnecessary suffering to combatants: it is accordingly prohibited to use weapons causing them such harm or uselessly aggravating their suffering. In application of that second principle, States do not have unlimited freedom of choice of means in the weapons they use.

The Court would likewise refer, in relation to these principles, to the Martens Clause, which was first included in the Hague Convention II with Respect to the Laws and Customs of War on Land of 1899 and which has proved to be an effective means of addressing the rapid evolution of military technology. A modern version of that clause is to be found in Article 1, paragraph 2, of Additional Protocol I of 1977, which reads as follows:

“In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.”

In conformity with the aforementioned principles, humanitarian law, at a very early stage, prohibited certain types of weapons either because of their indiscriminate effect on combatants and civilians or because of the unnecessary suffering caused to combatants, that is to say, a harm greater than that unavoidable to achieve legitimate military objectives. If an envisaged use of weapons would not meet the requirements of humanitarian law, a threat to engage in such use would also be contrary to that law.

The World Court clearly said: “States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets.” Yet, to the contrary, U.S. strategic nuclear weapons systems do indeed make civilians the direct object of attack, and because of their incredible explosive power are also incapable of distinguishing between civilians and military targets.

The Court then goes on to say: “According to the second principle, it is prohibited to cause unnecessary suffering to combatants.” But clearly the use of nuclear weapons would cause unnecessary suffering to both combatants and to civilians, the latter of whom remain absolutely protected at all times. The well-documented human suffering in the aftermath of the atomic bombings of Hiroshima and Nagasaki provides conclusive evidence of the validity of this proposition.

The Court concludes Paragraph 78 by stating: “If an envisaged use of weapons would not meet the requirements of humanitarian law, a threat to engage in such use would also be contrary to that law.” In other words, nuclear deterrence itself is illegal. For example, a nuclear weapons state such as the United States cannot lawfully threaten mass extermination when mass extermination itself would be clearly illegal and criminal. Here once again, the World Court implicitly condemns the whole doctrine of nuclear deterrence as being illegal and, I might add, criminal.

Referring explicitly to the Hague Conventions and the Geneva Conventions in Paragraph 79 of the Advisory Opinion, the World Court held as follows: “Further these fundamental rules are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law.” Of course, the United States government has ratified Hague Convention No. IV of 1907 and the Four Geneva Conventions of 1949 and so is bound to observe them a fortiori.

Nuclear Weapons and Nuremberg Accountability

In this regard, it is also significant that in Paragraph 80 of the Advisory Opinion, the World Court invokes and affirms the authority of the 1945 Nuremberg Judgment during the course of analyzing the legality of the threat and use of nuclear weapons under international humanitarian law. Furthermore, in Paragraph 81 of the Advisory Opinion, the World Court repeats with implicit approval the official assertion by the United Nations Secretary General that the Nuremberg Charter of 8 August 1945, inter alia, represents “‘…part of conventional international humanitarian law which has beyond doubt become part of international customary law…’” Thus, in Paragraphs 80 and 81 of the Advisory Opinion, the World Court deliberately and directly raises the specter of personal criminal responsibility under the Nuremberg Charter, the Nuremberg Judgment, and I might add the Nuremberg Principles, for government decision-makers bearing command responsibility, aiding and abetting, or otherwise complicit in their country’s plans for the threat and use of nuclear weapons. Since I have already discussed these matters at great length elsewhere, I will not bother to repeat any of that analysis here.

Nuclear Weapons and International Humanitarian Law

The Court then turns directly to the question of the applicability of international humanitarian law to the threat and use of nuclear weapons and concludes in Paragraphs 85, 86 and 87 that the aforementioned principles of international humanitarian law apply to nuclear weapons just as they apply to any other weapon of warfare:

85. …In the view of the vast majority of States as well as writers there can be no doubt as to the applicability of humanitarian law to nuclear weapons.

86. The Court shares that view. … In this respect it seems significant that the thesis that the rules of humanitarian law do not apply to the new weaponry, because of the newness of the latter, has not been advocated in the present proceedings. On the contrary, the newness of nuclear weapons has been expressly rejected as an argument against the application to them of international humanitarian law:

….

None of the statements made before the Court in any way advocated a freedom to use nuclear weapons without regard to humanitarian constraints. Quite the reverse; it has been explicitly stated,

“Restrictions set by the rules applicable to armed conflicts in respect of means and methods of warfare definitely also extend to nuclear weapons” (Russian Federation, CR 95/29, p. 52);

“So far as the customary law of war is concerned, the United Kingdom has always accepted that the use of nuclear weapons is subject to the general principles of the jus in bello” (United Kingdom, CR 95/34, p. 45); and

“The United States has long shared the view that the law of armed conflict governs the use of nuclear weapons — just as it governs the use of conventional weapons” (United States of America, CR 95/34, p. 85.)

87. Finally, the Court points to the Martens Clause, whose continuing existence and applicability is not to be doubted, as an affirmation that the principles and rules of humanitarian law apply to nuclear weapons.

Thus, consistent with its longstanding position going back to the U.S. Army Field Manual 27-10 of 1956, the United States government expressly conceded before the World Court that international humanitarian law applies to the use of nuclear weapons. But as the World Court has consistently pointed out so far in this Advisory Opinion, it would be difficult to imagine any circumstances in which the threat and use of nuclear weapons would not violate international humanitarian law. Once again, the conclusion becomes inexorable that the threat and use of nuclear weapons, including therein nuclear deterrence, is illegal and, I might add, criminal.

Violation of the International Laws of Neutrality

The World Court then turned to the question of whether or not the threat and use of nuclear weapons violate the international laws of neutrality. Generally put, the essence of the international laws of neutrality can be found in Hague Convention No. V Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land of 1907, and Hague Convention No. XIII Respecting the Rights and Duties of Neutral Powers in Naval War of 1907. The United States government is a contracting party to both Hague Neutrality Conventions. In addition, both of the Hague Neutrality Conventions of 1907 constitute customary international law on the rules of neutrality in wartime.

No point would be served by reviewing the contents of these two treaties in detail. Suffice it to say here that their basic requirement is that belligerents are bound to respect the territory and the sovereign rights of neutral states during wartime. As Article 1 of Hague Convention No. V. Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land of 1907 put it: “The territory of neutral Powers is inviolable.” In Paragraph 89 of the Advisory Opinion, the World Court found that these principles of neutrality apply “…to all international armed conflict, whatever type of weapons might be used.” In other words, states must respect the international laws of neutrality and the territory and the sovereign rights of neutral states when it comes to the threat and use of nuclear weapons.

But this simply cannot be done given the devastating effects of nuclear weapons upon the surrounding environment irrespective of national borders; given the transnational effects of nuclear fallout; and given the transgenerational effects of nuclear radiation. In any event, it is certainly clear that the nuclear weapons states have paid absolutely no attention whatsoever to the customary or conventional international laws of neutrality when it comes to formulating their currently existing plans for the threat and use of nuclear weapons, including therein nuclear deterrence. In other words, the nuclear weapons states are currently threatening to violate the international laws of neutrality and thus stand in anticipatory breach of these two Hague Neutrality Conventions and the customary international laws of neutrality. Once again, this is certainly the type of ongoing inchoate criminal activity that anti-nuclear resisters have the right to oppose by necessary and proportionate means.

Furthermore, many states such as the United States have enacted domestic implementing legislation that is purposefully designed to incorporate into their municipal legal systems the customary and conventional international laws of neutrality on pain of criminal penalty for their violation. Once again, anti-nuclear resisters have the right to oppose such ongoing inchoate criminal activities by their own government officials acting in gross violation of customary international law, international treaties, and domestic statutes that were expressly intended to criminalize such behavior. Papers to that effect have already been drawn up by my friend, former client, Plowshares resister, convicted felon, fellow graduate of the Harvard Law School, fellow attorney, and co-counsel Katya Komisaruk, Esquire, of Oakland, California–a real American Hero!

Conclusion on International Humanitarian Law and Nuclear Weapons

In Paragraph 91 of the Advisory Opinion, the World Court referred to, but refused to endorse, the legality of even “…the use of a low yield nuclear weapon against warships on the High Seas or troops in sparsely populated areas…” as advocated by the United Kingdom and the United States during the course of these proceedings. And in Paragraph 94 of the Opinion, the World Court even goes so far as to expressly refuse to endorse “…the legality of the use of nuclear weapons under certain circumstances, including the ‘clean’ use of smaller, low yield, tactical nuclear weapons…” Here the Court’s analysis implies that even such “limited” uses of tactical nuclear weapons would have to comply with international humanitarian law and the international laws of neutrality, assuming that could be done. Even then, the legality vel non of the tactical use of low yield nuclear weapons would also depend upon “…whether such limited use would not tend to escalate into the all-out use of high yield nuclear weapons.” (Advisory Opinion, Paragraph 94.) Once again, it is difficult to imagine any such circumstances.

The Court utters its final condemnation of nuclear weapons in Paragraph 95 of the Opinion as follows:

…Thus, methods and means of warfare, which would preclude any distinction between civilian and military targets, or which would result in unnecessary suffering to combatants, are prohibited. In view of the unique characteristics of nuclear weapons, to which the Court has referred above, the use of such weapons in fact seem scarcely reconcilable with respect for such requirements. …

So once again the World Court expressly recognizes the proposition that it is difficult to imagine any circumstances where the threat and use of nuclear weapons would be lawful.

The World Court’s Non-Pronouncement in Paragraph 97

Originally, the General Assembly had asked the World Court to answer the following question: “Is the threat or use of nuclear weapons in any circumstances permitted under international law?” The World Court finally got around to answering this precise question in Paragraph 95 of the Advisory Opinion by employing the following language:

…Nevertheless, the Court considers that it does not have sufficient elements to enable it to conclude with certainty that the use of nuclear weapons would necessarily be at variance with the principles and rules of law applicable in armed conflict in any circumstance.

For obvious reasons, the World Court could not possibly have envisioned and considered all the circumstances in which nuclear weapons might conceivably be used. Consequently, the Court observed in Paragraph 97 of the Advisory Opinion that “…it cannot reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of self-defence, in which its very survival would be at stake.” This is because of the factual uncertainties surrounding this hypothetical conjecture that had been mentioned in Paragraph 95 of the Advisory Opinion as quoted above.

I will discuss the Court’s non-pronouncement mentioned in Paragraph 97 of the Advisory Opinion in more detail below when analyzing the Opinion’s dispositif. Suffice it to say here that in this entire Advisory Opinion, the World Court did not tolerate, or approve, or sanction, or condone any threat or use of nuclear weapons for any reason. The Court simply refused to express “…a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of self-defense, in which its very survival would be at stake…” because of the factual uncertainties surrounding this purely hypothetical conjecture. Like any other court in the world today, the World Court operates on two basic principles, inter alia: Never say never! And: It all depends upon the facts!

Nuclear Disarmament

In Paragraph 99 of the Advisory Opinion, the Court quotes Article VI of the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT) as follows:

“Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.”

The Court interpreted NPT Article VI to contain a twofold obligation (1) to pursue and (2) to conclude negotiations for nuclear disarmament in good faith as follows:

….

The legal import of that obligation goes beyond that of a mere obligation of conduct; the obligation involved here is an obligation to achieve a precise result — nuclear disarmament in all its aspects — by adopting a particular course of conduct, namely, the pursuit of negotiations on the matter in good faith.

See Advisory Opinion, para. 99.

And in Paragraph 100 of the Advisory Opinion, the Court clearly states that: “This twofold obligation to pursue and to conclude negotiations formally concerns the 182 States parties to the Treaty on the Non-Proliferation of Nuclear Weapons, or, in other words, the vast majority of the international community.”

Since 1968 it cannot be said that the world’s nuclear weapons states have ever pursued negotiations on nuclear disarmament in good faith. Indeed, since 1968, except perhaps for the 1986 Gorbachev proposals, not one of the nuclear weapons states has ever given any serious consideration to their solemn legal obligation of nuclear disarmament, let alone general and complete disarmament, as required and called for by NPT Article VI. Hence, all of the nuclear weapons states currently stand in material breach of these twin obligations under NPT Article VI and customary international law as authoritatively determined by the World Court itself in Paragraph 99 of its Advisory Opinion.

The Dispositif

The Court then issued its formal rulings in Paragraph 105 of the Advisory Opinion, the so-called “dispositif.” I will not bother to repeat or analyze all of its elements here. But for the purposes of defending anti-nuclear resisters the critical provisions of the dispositif will be discussed below. For the sake of convenience I will first examine these “unanimous” rulings adopted by the International Court of Justice in the dispositif of this Advisory Opinion.

Unanimous Ruling on the U.N. Charter

In Paragraph 105(2)(C) of the Opinion the Court ruled unanimously that: “A threat or use of force by means of nuclear weapons that is contrary to Article 2, paragraph 4, of the United Nations Charter and that fails to meet all the requirements of Article 51, is unlawful;”

In his Dissenting Opinion at page 3, Judge Weeramantry interpreted Paragraph 105(2)(C) of the Advisory Opinion as follows:

(iv) Paragraph 2(C) – (Unanimous)

The positive features of this paragraph have already been noted. The Court, in this paragraph, has unanimously endorsed Charter-based pre-conditions to the legality of nuclear weapons, which are diametrically opposed to the results of the use of the weapon. I thus read paragraph 1(C) [sic: must read “2(C)” because there is no 1(C)] of the dispositif as rendering the use of the nuclear weapon illegal without regard [sic: add “to”] the circumstances in which the weapon is used – whether in aggression or in self defence, whether internationally or internally, whether by individual decision or in concert with other nations. A unanimous endorsement of this principle by all the judges of this Court takes the principle of illegality of use of nuclear weapons a long way forward from the stage when there was no prior judicial consideration of legality of nuclear weapons by any international tribunal.

Those contending that the use of nuclear weapons was within the law argued strongly that what is not expressly prohibited to a state is permitted. On this basis, the use of the nuclear weapon was said to be a matter on which the state’s freedom was not limited. I see the limitations laid down in paragraph 1(C) [sic: must read “2(C)” because there is no 1(C)] as laying that argument to rest.

In this passage, Judge Weeramantry has provided us with an authoritative interpretation of Paragraph 105(2)(C) not only because he is a sitting Judge of the World Court but also because he is one of the world’s leading experts on nuclear weapons and international law.

The import of this unanimous ruling by the World Court in Paragraph 105(2)(C) of the Advisory Opinion should be crystal clear by now. It is almost impossible to imagine any threat or use of nuclear weapons that would be compatible with Article 2(4) of the United Nations Charter and that meets all the requirements of Article 51, especially the principles of necessity and proportionality. Indeed, in their current plans for the threat and use of nuclear weapons, including therein nuclear deterrence, the world’s nuclear weapons states have paid absolutely no meaningful attention whatsoever to the requirements of Article 2(4) and Article 51 of the U.N. Charter, and especially the principles of necessity and proportionality. Hence, all of the current plans for the threat and use of nuclear weapons by the world’s nuclear weapons states, including therein nuclear deterrence, are “unlawful” and, I might add, criminal.

Unanimous Ruling on International Humanitarian Law

In Paragraph 105(2)(D) of the Opinion’s dispositif, the World Court ruled unanimously that: “A threat or use of nuclear weapons should also be compatible with the requirements of the international law applicable in armed conflict, particularly those of the principles and rules of international humanitarian law, as well as with specific obligations under treaties and other undertakings which expressly deal with nuclear weapons;”

In his Dissenting Opinion at page 3, Judge Weeramantry interpreted Paragraph 105(2)(D) of the Advisory Opinion as follows: (v) Paragraph 2(D) – (Unanimous)

This paragraph, also unanimously endorsed by the Court, lays down the further limitation of compatibility with the requirements of international law applicable in armed conflict, and particularly with the rules of international humanitarian law and specific treaty obligations.

There is a large array of prohibitions laid down here.

My Opinion will show what these rules and principles are, and how it is impossible, in the light of the nature and effects of nuclear weapons, for these to be satisfied.

If the weapon is demonstrably contrary to these principles, it is unlawful in accordance with this paragraph of the Court’s Opinion.

Once again, in this passage Judge Weeramantry has provided us with an authoritative interpretation of Paragraph 105(2)(D) not only because he is a sitting Judge of the World Court, but also because he is one of the world’s leading experts on nuclear weapons and international law.

The import of this unanimous ruling by the World Court in Paragraph 105(2)(D) of the Advisory Opinion should also be crystal clear by now. It is almost impossible to imagine any threat or use of nuclear weapons that would not grossly violate the principles and rules of international humanitarian law, whether customary or conventional. Indeed, in their current plans for the threat and use of nuclear weapons, including therein nuclear deterrence, the nuclear weapons states have paid absolutely no meaningful attention whatsoever to the requirements of international humanitarian law, whether customary or conventional. Hence, all of the current plans for the threat and use of nuclear weapons by the world’s nuclear weapons states, including therein nuclear deterrence, are illegal and, I might add, criminal.

Unanimous Ruling on Nuclear Disarmament

Finally, in Paragraph 105(2)(F) of the Opinion’s dispositif, the World Court ruled unanimously: “There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.” Quite obviously, since 1968 not one of the nuclear weapons states has discharged these twin obligations of both customary and conventional international law. Consequently, all of the world’s nuclear weapons states currently stand in material breach of NPT Article VI as well as these identical twin obligations under customary international law.

The Court’s Ruling on the Threat and Use of Nuclear Weapons

The World Court then ruled on the legality of the threat or use of nuclear weapons in Paragraph 105(2)(E) of the Advisory Opinion’s dispositif as follows:

E. By seven votes to seven, by the President’s casting vote,

It follows from the above-mentioned requirements that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law;

However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake;

IN FAVOUR: President Bedjaoui; Judges Ranjeva, Herczgh, Shi, Fleischhauer, Vereschetin, Ferrari Bravo;

AGAINST: Vice-President Schwebel; Judges Oda, Guillaume, Shahabuddeen, Weeramantry, Koroma, Higgins.

According to Article 55 of the ICJ Statute, in the event of a tie in the number of votes by the World Court Judges, it is for the President of the Court to cast the deciding vote. For this reason, President Bedjaoui’s separate Declaration appended to the Opinion bears special importance for the interpretation of this component of the dispositif.

According to President Bedjaoui, Paragraph 105(2)(E) of the Advisory Opinion’s dispositif must not “in any way be interpreted as leaving the way open to the recognition of the lawfulness of the threat or use of nuclear weapons.” See Declaration of President Bedjaoui, at para. 11. In this regard, President Bedjaoui drew attention to the fact that in Paragraph 79 of the Advisory Opinion, the Court had already held that the fundamental rules of international humanitarian law (i.e., the Hague Conventions and the Geneva Conventions) “…constitute intransgressible principles of international customary law.” In other words, since these principles are “intransgressible,” to use the precise word of the Court, then they can never be violated, even in extreme circumstances, when the very survival of the state is at stake. See Declaration of President Bedjaoui, at para. 21.

The Importance of Paragraph 104

Likewise, in interpreting this element of the dispositif, it is crucial to recall to mind once again the text of Paragraph 104 of the Advisory Opinion, which immediately precedes the entirety of the dispositif found in Paragraph 105, as follows:

104. At the end of the present Opinion, the Court emphasizes that its reply to the question put to it by the General Assembly rests on the totality of the legal grounds set forth by the Court above (paragraphs 20 to 103), each of which is to be read in the light of the others. Some of these grounds are not such as to form the object of formal conclusions in the final paragraph of the Opinion; they nevertheless retain, in the view of the Court, all their importance.

In other words, the elements of the dispositif set forth in Paragraph 105(2)(E) must be read and interpreted by reference to Paragraphs 20 to 103 of the Advisory Opinion, which have already been extensively analyzed above.

Therefore, it would be an incorrect interpretation of the Advisory Opinion to focus simply upon Paragraph 105(2)(E) of the dispositif. Rather, by means of Paragraph 104 the Court makes it crystal clear that the dispositif, including Paragraph 105(2)(E), does not mean to take back or call into question any of its findings set forth in Paragraphs 20 to 103. Paragraphs 20 to 103 “retain, in the view of the Court, all their importance” despite the non-pronouncement found in Paragraph 105(2)(E) of the Advisory Opinion.

Interpreting Paragraph 105(2)(E)

In his Dissenting Opinion Judge Weeramantry criticized the entirety of Advisory Opinion Paragraph 105(2)(E) as follows:

(ii) Paragraph 2(E) – (7 votes to 7. Casting vote in favour by the President)

I am in fundamental disagreement with both sentences contained within this paragraph.

I strongly oppose the presence of the word “generally” in the first sentence. The word is too uncertain in content for use in an Advisory Opinion, and I cannot assent to a proposition which, even by remotest implication, leaves open any possibility that the use of nuclear weapons would not be contrary to law in any circumstances whatsoever. I regret the presence of this word in a sentence which otherwise states the law correctly. It would also appear that the word “generally” introduces an element of internal contradiction into the Court’s Opinion, for in paragraphs 2(C) and 2(D) of the Court’s Opinion, the Court concludes that nuclear weapons must be consistent with the United Nations Charter, the principles of international law, and the principles of humanitarian law, and, such consistency being impossible, the weapon becomes illegal.

The word “generally” admits of many meanings, ranging through various gradations, from “as a general rule; commonly”, to “universally; with respect to all or nearly all”. [Footnote omitted.] Even with the latter meaning, the word opens a window of permissibility, however narrow, which does not truly reflect the law. There should be no niche in the legal principle, within which a nation may seek refuge, constituting itself the sole judge in its own cause on so important a matter.

The main purpose of this Opinion is to show that, not generally but always, the threat or use of nuclear weapons would be contrary to the rules of international law and, in particular, to the principles and rules of humanitarian law. Paragraph 2(E) should have been in those terms, and the Opinion need have stated no more.

The second paragraph of 2(E) states that the current state of international law is such that the Court cannot conclude definitely whether the threat or use of the weapon would or would not be lawful in extreme circumstances of self defence. It seems self-evident to me that once nuclear weapons are resorted to, the laws of war (the ius in bello) take over, and that there are many principles of the laws of war, as recounted in this Opinion, which totally forbid the use of such a weapon. The existing law is sufficiently clear on this matter to have enabled the Court to make a definite pronouncement without leaving this vital question, as though sufficient principles are not already in existence to determine it. All the more should this uncertainty have been eliminated in view of the Court’s very definite findings as set out earlier.

See Dissenting Opinion of Judge Weeramantry, at pp. 2-3. Once again, Judge Weeramantry’s comments constitute an authoritative interpretation of Paragraph 105(2)(E) because he is a sitting Judge of the World Court and also because he is one of the world’s leading experts on nuclear weapons and international law.

The First Paragraph of Paragraph 105(2)(E)

Quite obviously, there should not be any problem interpreting the meaning of the first paragraph of Paragraph 105(2)(E):

It follows from the above-mentioned requirements that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law;

…. Notice that the World Court expressly found that both “the threat or use of nuclear weapons would generally be contrary to the rules of international law…” In other words, nuclear deterrence itself “would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law…” Here I might add that since nuclear deterrence violates the laws of war and international humanitarian law, nuclear deterrence is thus criminal.

Likewise, in this regard, Judge Shi Jiuyong (from China, a nuclear weapons state) points out in his Declaration that nuclear deterrence has “no legal significance.” Similarly, on page 2 of his Declaration Judge Ferrari Bravo (from Italy, allied with three nuclear weapons states in the NATO Alliance) states that nuclear deterrence has no juridical value, and observes: “On pourrait arriver à dire que l’on est en présence d’un anti-droit, si on pense aux effets qu’elle a eus sur la Charte des Nations Unies.” In other words, nuclear deterrence is “anti-law,” that is the very negation of international law and especially of the United Nations Charter.

In a similar vein, Judge Fleischhauer (from Germany, allied with three nuclear weapons states in the NATO Alliance) states in Paragraph 2 of his Separate Opinion: “The nuclear weapon is, in many ways, the negation of the humanitarian considerations underlying the law applicable in armed conflict and the principle of neutrality.”

President Bedjaoui made a similar observation in Paragraph 20 of his Declaration: “…Nuclear weapons, the ultimate evil, destabilize humanitarian law which is the law of the lesser evil. The existence of nuclear weapons is therefore a challenge to the very existence of humanitarian law. …Nuclear war and humanitarian law seem by consequence to be two antitheses which exclude each other radically, the existence of the one necessarily supposes the inexistence of the other.”

Simply put, nuclear weapons are to international law what the so-called Anti-Christ is to the Christian religion. Indeed, I personally know many devout Christians who sincerely believe that nuclear weapons are the Anti-Christ. Typically, anti-nuclear resisters oppose nuclear weapons because of a mixture of religious, moral, and legal considerations. Their admixture of motivations is given legal significance by the so-called Martens Clause as set forth, for example, in the Preamble to Hague Convention No. IV Respecting the Laws and Customs of War on Land of 18 October 1907, to which the United States government is a contracting party:

Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.

Certainly the dictate of the public conscience around the world is against the threat and use of nuclear weapons. As Judge Shahabuddeen put the matter on page 27 of his Dissenting Opinion:

In the result, on the basis of what the Court finds to be the state of the public conscience, it will be able to say whether the Martens Clause operates to prohibit the use of nuclear weapons in all circumstances. On the available material, it would be open to the Court to hold that the Clause operates to impose such a prohibition.

Interpreting The Second Paragraph of Paragraph 105(2)(E) of the Advisory Opinion

The real problem with Paragraph 105(2)(E) of the Advisory Opinion comes from the proper interpretation to be accorded its second paragraph:

….

However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake;

At the very outset of his Dissenting Opinion Judge Koroma (of Sierre Leone) had the following observations to make about the second paragraph of Paragraph 105(2)(E):

It is a matter of profound regret to me that I have been compelled to append this Dissenting Opinion to the Advisory Opinion rendered by the Court, as I fundamentally disagree with its finding – secured by the President’s casting vote – that:

“in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake”.

This finding, in my considered opinion, is not only unsustainable on the basis of existing international law, but, as I shall demonstrate later, is totally at variance with the weight and abundance of material presented to the Court. The finding is all the more regrettable in view of the fact that the Court had itself reached a conclusion that:

“the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law”.

A finding with which I concur, save for the word “generally”. It is my considered opinion based on the existing law and the available evidence that the use of nuclear weapons in any circumstance would be unlawful under international law. That use would at the very least result in the violation of the principles and rules of international humanitarian law, and would therefore be contrary to that law.

….

See Dissenting Opinion of Judge Koroma, at p. 1.

Likewise, in her Dissenting Opinion at Paragraph 29, Judge Higgins (from the United Kingdom, a nuclear weapons state) criticizes the second paragraph of Paragraph 105(2)(E) in the following language:

29. …Through this formula of non-pronouncement the Court necessarily leaves open the possibility that a use of nuclear weapons contrary to humanitarian law might nonetheless be lawful. This goes beyond anything that was claimed by the nuclear weapon States appearing before the Court, who fully accepted that any lawful threat or use of nuclear weapons would have to comply with both the jus ad bellum and jus in bello (see para. 86).

Judge Higgins is certainly correct to point out that the nuclear weapons states are still bound to adhere to their position on this matter that they formally articulated during the course of the World Court proceedings. It has been the longstanding position of the nuclear weapons states that any threat or use of nuclear weapons must comply with both the United Nations Charter (the jus ad bellum, or right to go to war) as well as with the laws of war and international humanitarian law (that is, the jus in bello, or laws of war). The non-pronouncement found in the second paragraph of Paragraph 105(2)(E) of this Advisory Opinion did not and indeed could not alter the validity of those legal obligations which flow from both customary and conventional international law.

Likewise, in Paragraph 12 of her Dissenting Opinion Judge Higgins stated most emphatically: “…It is in any event absolutely prohibited to attack civilians, whether by nuclear or other weapons.” Even when considering attacking legitimate military targets, a state must not attack “if the collateral civilian casualties would be disproportionate to the specific military gain from the attack.” See Dissenting Opinion of Judge Higgins, at para. 20. Applying this principle of proportionality to nuclear weapons, Judge Higgins opines: “One is inevitably led to the question of whether, if a target is legitimate and the use of a nuclear weapon is the only way of destroying that target, any need can ever be so necessary as to occasion massive damage upon civilians.” See id.

Finally, in Paragraph 23 of her Dissenting Opinion Judge Higgins enunciates a third principle of international humanitarian law with respect to the threat and use of nuclear weapons: “Very important also in the present context is the requirement of humanitarian law that weapons may not be used which are incapable of discriminating between civilian and military targets.” Once again, it is extremely difficult to conceive of any circumstances surrounding the current plans for the threat and use of nuclear weapons by the world’s nuclear weapons states that would not violate any one, or more, or all three of these fundamental principles of international humanitarian law that were articulated by Judge Higgins in her Dissenting Opinion.

The Dissenters to Paragraph 105(2)(E)

As can be seen from the above analysis, of the seven World Court Judges registering dissenting votes to Paragraph 105(2)(E) of the dispositif of the Advisory Opinion, Judge Weeramantry and Judge Koroma dissented because it did not, in their Opinions, go far enough to expressly condemn the threat and use of nuclear weapons in all circumstances. The same can be said for Judge Shahabuddeen in his Dissenting Opinion. The grounds for Judge Oda’s Dissenting Opinion were that he did not believe the World Court should have responded to the General Assembly’s Request for this Advisory Opinion in the first place.

Therefore, of the seven dissenters to Paragraph 105(2)(E), only Judge Schwebel (from the United States), Judge Higgins (from the United Kingdom) and Judge Guillaume (from France) had any substantive problem with its general condemnation of the threat and use of nuclear weapons. Notice that these three dissenters were all from the three nuclear weapons states that are allied with each other by means of the NATO Pact. Thus, it is not surprising that these three Judges voted on Paragraph 105(2)(E) in a manner consistent with the fact that their respective states of nationality possess nuclear weapons. In the practice of the International Court of Justice and its predecessor, the Permanent Court of International Justice, there has always been a high degree of correlation between a Judge’s vote and the position advocated by his or her state of nationality before the World Court despite the vaunted independence of the World Court from outside political pressures. Nevertheless, by comparison, Judge Vereschetin from Russia and Judge Shi from China did not dissent from Paragraph 105(2)(E) despite the fact that their respective states of nationality were indeed nuclear weapons states.

In light of these three dissenting votes on Paragraph 105(2)(E) by Judges Schwebel, Higgins and Guillaime, let us assume an extreme case of legitimate self-defense under Article 51 of the United Nations Charter where a state’s “very survival would be at stake.” Even then, according to Paragraph 79 of the Opinion, the Hague Conventions and the Geneva Conventions “constitute intransgressible principles of international customary law.” As pointed out by Judge Bedjaoui, then President of the World Court, in his appended Declaration, such intransgressible principles can never be violated, even in extreme circumstances, where the very survival of a state is at stake. It is difficult to imagine any circumstances where the actual use of nuclear weapons would not violate either the Hague Conventions or the Geneva Conventions. In other words, it is difficult to imagine any circumstances where the actual use of nuclear weapons would not violate “intransgressible principles of international customary law.”

Furthermore, as already noted above, the United States government has ratified Hague Convention No. IV of 1907 and the Four Geneva Conventions of 1949 and so is bound to observe them a fortiori and without any exceptions whatsoever. The same is true for the other acknowledged nuclear weapons states: Britain, China, France and Russia. The non-pronouncement found in the World Court’s Advisory Opinion cannot alter those undeniable facts and the legal conclusions that flow inevitably from them.

Conclusion

It is obvious from reading the World Court’s Advisory Opinion that any currently contemplated threat or use of nuclear weapons by the United States government is illegal under international humanitarian law, and therefore I would add criminal. Hence all that needs to be done in order to defend an anti-nuclear resister is to apply the World Court’s Advisory Opinion to the actual nuclear weapons system that was the object of the anti-nuclear resister’s action. By applying the teachings of the World Court’s Advisory Opinion to the actual facts of the case, it should become clear that the specific nuclear weapons system and its related strategy are illegal and criminal.

Hence, there is no need to deal with the question of the legality or illegality of nuclear weapons as an abstract proposition. Rather, simply apply the language of the Advisory Opinion, together with the analysis of the Opinion as set forth above, to the specific nuclear weapons system that was the object of the anti-nuclear resister’s action: e.g., NAVSTAR/Trident 2/Delta 5. Once you demonstrate the mission and the capabilities of the specific nuclear weapons system, its illegality and criminality should become blatantly obvious to the jury.

Indeed, this contextual approach to the problem coincides quite nicely with the contextual argument twice made by the United States government in its Written Observations on the Request by the General Assembly for an Advisory Opinion that was submitted to the International Court of Justice during the course of the World Court proceedings:

…As in the case of other weapons, the legality of use depends on the conformity of the particular use with the rules applicable to such weapons. This would, in turn, depend on factors that can only be guessed at, including the characteristics of the particular weapon used and its effects, the military requirements for the destruction of the target in question, and the magnitude of the risk to civilians…

By following this contextual approach to the actual nuclear weapons system at issue, you are only taking seriously and applying the contextual approach recommended by the United States government itself to the International Court of Justice. Certainly a judge and a jury anywhere in the United States of America should have the exact same right and duty to take into consideration the entire context surrounding the threat and use of the particular nuclear weapons system that motivated any act of anti-nuclear resistance.

Basically, then, the defense strategy in all these anti-nuclear trials has been to shift the jury’s focus of attention away from the act of anti-nuclear resistance over to the specific nuclear weapons system involved. In other words, put the nuclear weapons system on trial instead of the anti-nuclear resisters. The critical factor in all these cases has been to get both the legal evidence and the technical evidence about the specific nuclear weapons system involved to be considered by the jury. The precise tactics, theories and strategies whereby this has been done have never mattered so much as whether or not the jury heard this legal evidence and the technical evidence in the first place.

Optimally, the successful defense of an anti-nuclear resister requires testimony at trial and before the jury by two experts: one on international law, the other on the technical characteristics of the specific nuclear weapons system involved. Of course, if you only have one expert or the judge will permit only one expert witness to testify, then that expert will have to do double duty. In this case, it is probably better to have your international law expert bone up on the facts surrounding the specific nuclear weapons system. You can usually get your international law expert qualified as an expert on nuclear weapons policies as well. By comparison, you will not be able to get your technical expert qualified as an expert on international law. So when faced with a choice, use the international law expert.

Of course, the judge might decide to strip you of all your expert witnesses, both technical and legal. If the judge does this, there is a good chance that such a ruling will constitute reversible error on appeal. Nevertheless, even if you are stripped of all your experts at trial, you must not despair! There have been several instances of anti-nuclear resisters obtaining hung juries by means of their own testimony. I know of other cases where different types of protesters have been able to obtain outright acquittals by means of their own testimony alone.

In any event, prior to trial anti-nuclear resisters and their lawyers must spend a good deal of time preparing their testimony in chief. During the course of their direct testimony, anti-nuclear resisters must explain their basic understanding and knowledge of the technical characteristics of the specific nuclear weapons system that they acted against. In addition, they should also try to explain in their own words that at the time they undertook their act of anti-nuclear resistance, this specific nuclear weapons system stood in gross violation of the United Nations Charter; the Nuremberg Charter, the Nuremberg Judgment, and the Nuremberg Principles; the Genocide Convention and its Implementation Act; the Hague Regulations; the Geneva Conventions and Protocol I; the Hague Neutrality Conventions; U.S. Army Field Manual 27-10 (1956); the 1996 World Court Advisory Opinion; as well as basic principles of international humanitarian, the laws of war, and international environmental law. Their act of anti-nuclear resistance was intended and designed for the express purpose of terminating ongoing inchoate criminal activity under well recognized principles of international law that have been fully subscribed to by the United States government itself.

Once again, I cannot over-emphasize enough that when facing any serious criminal charges, an anti-nuclear resister is well advised to be represented by an attorney. Even with representation by counsel, it will be difficult enough as it is to set up the defense of an anti-nuclear resister using international law, let alone to pull it off successfully. Based upon my experience with doing anti-nuclear protest cases since 1982, anti-nuclear resisters do themselves no favor by foregoing the services of an attorney–with all due respect to them. In some cases, they might even hurt the anti-nuclear cause that they seek to promote by proceeding to trial without adequate counsel and representation by a lawyer.

Quite obviously, there is a lot more I could say about defending anti-nuclear resisters under international law. But for a variety of reasons, I believe I have said enough for the time being. Good luck to you!

F.A.B.

* Francis A. Boyle is Professor of International Law and Advisor to the Nuclear Age Peace Foundation.

© Copyright 1999-2000 BY FRANCIS A. BOYLE. ALL RIGHTS RESERVED.

November 14, 1997
We Owe an Allegiance to Humanity

This interview was held with Joseph Rotblat, the 1995 Nobel Peace Laureate, when he visited Santa Barbara to receive the Nuclear Age Peace Foundation’s 1997 Lifetime Achievement Award for Distinguished Peace Leadership. Professor Rotblat was interviewed on October 29, 1997 by Foundation President David Krieger.

Krieger: Having worked for more than 50 years for the elimination of nuclear weapons, how would you assess the progress that’s been made toward achieving a nuclear weapons free world?

Rotblat: I believe that we have made significant progress. Perhaps hopes were a bit too optimistic that, with end of the Cold War, very quickly we could get rid of all nuclear weapons because their purpose, if there was any purpose, certainly ceased to exist. We hoped that particularly the United States would then take drastic steps to get rid of the weapons. Steps have been taken; a certain amount of the dismantlement of weapons has taken place with a number of treaties, stopping testing, etc. But I am disappointed that the progress is not greater, particularly that the nuclear powers still stick to the same way of thinking they did during the Cold War – that nuclear weapons are needed for security. As long as this thinking exists, there is not much hope that there will be an agreement by the nuclear powers to get rid of the weapons. I believe, however, that we’re gradually winning the logical argument against the retention of nuclear weapons. What is needed at the present is a push from the mass media and from mass movements to support the suggestions made in a number of recent studies. I believe that if this is done and specific ideas put forward which could easily be implemented, it will start the process of elimination of nuclear weapons which could be achieved in about two decades.

Krieger: What do you think is needed to achieve the sort of mass movement for abolition that you are calling for?

Rotblat: I think two things – a positive and a negative. The negative one is to point out that the problem with nuclear weapons has not been solved – that the progress which started the world toward disarmament has come to a halt. There is now a real danger that the nuclear arms race will start again and more nations will acquire nuclear weapons. People must realize that the nuclear issue must be put on the agenda because of the real threat that we will go back to the dangers that existed during the Cold War. People should be aware there is a danger.

And then, following out of this, we must put forth specific proposals which will start the whole disarmament process over again. In my opinion, among several proposals like de-alerting of nuclear weapons, separating warheads from the missiles, all of which will make the world safer, we also need something which will enable us to go ahead to the actual elimination of nuclear weapons. One such step is a No First Use Treaty, providing that the nuclear weapons states will agree among themselves that the only purpose of nuclear weapons is to deter a nuclear attack and nothing else. Once they’ve agreed to this, if they agree to such a treaty, then I see the way directly open to the final step to the elimination of nuclear weapons.

Krieger: What will have to happen for the nuclear weapons states to take such a significant step?

Rotblat: They will have to be pushed towards it. And I said there are two things. One is to present the logical argument which is really unassailable. There’s no need for nuclear weapons today. It’s been shown that the world can live in better safety without nuclear weapons than with nuclear weapons. So the first thing is to convince the nuclear weapons states from the professional’s point of view, and then they’ll have to feel the pressure from the people because, after all, they are subject to election. They can’t ignore the voice of the people. If we can build up a real mass movement – people demonstrating, writing petitions, writing to member of Parliament, etc. – if we can just build up to a real crescendo, then I think the nuclear weapons states will have to accept it.

Krieger: What you are calling for is a campaign to educate the people on the one hand and to educate the leaders on the other hand. Is that correct?

Rotblat: You cannot start a mass movement without telling people what they are trying to achieve. Therefore, when I speak about starting a mass movement, of course, it has to start by educating the people. Give them the facts. They should not just believe they are living in a world where nuclear weapons don’t matter. The truth now is that many people think that the danger is over completely, and this is the reason why the nuclear issue is no longer on the agenda. The first thing is to inform the people that the process is not complete, and in fact it may reverse. Give them facts. Groups like yours, the Nuclear Age Peace Foundation, have a big task in this mass movement campaign for the abolition of nuclear weapons, part of the Abolition 2000 program.

Krieger: Do you believe that we will achieve a nuclear weapons free world in a reasonable period of time?

Rotblat: I don’t know what is reasonable. I would like to see it in my lifetime, at least the beginning. What is important is for the nuclear weapons states to get away from the mode of thinking that nuclear weapons are needed for security. This I believe could be achieved very quickly. It could be done before the end of the century. It could be done next year. I believe that if this were achieved, if leaders really accepted a No First Use Treaty, which would mean a breakthrough in their thinking, from then on it would be largely a technical matter how to ensure that a convention banning nuclear weapons will not be violated. I believe this can be done. The main thing is to start the process. If the process is started, which I hope will happen soon, then it would take another two decades until a nuclear weapons free world is completely achieved.

Krieger: This way of thinking that you’re talking about, do you believe this is what Einstein meant when he made his famous statement that “the splitting of the atom has changed everything save our modes of thinking”?

Rotblat: What he meant was a new way to approach the problem of security – away from national security to global security. This is a new way of thinking. Many people have adopted it, but not yet the decision-makers. We still need a new way of thinking. It is still the most important issue at the present time.

Krieger: You mentioned Abolition 2000 – the campaign for a Nuclear Weapons Convention to be agreed to before the year 2000. Can you share some of your thoughts on this Abolition 2000 campaign?

Rotblat: It is a much needed mass movement campaign. It will be, I believe, the deciding factor in whether the nuclear decision makers will accept abolition or not. But I feel that we need something more than has been done up to now. Additional aspects need to be added to the present movement, that is, to explain to people that they have to do something about the danger and then point to a number of events and pull out specifically one event that we can get very quickly. In my opinion this would be a No First Use Treaty. I think that with this there is a good chance that we shall be successful.

Krieger: You’re almost 89 years old and you’ve worked hard over the course of your life to eliminate nuclear weapons and to engender more responsibility by scientists as well as citizens in general. What gives you hope for the future?

Rotblat: My hope is based on logic. Namely, there is no alternative. If we don’t do this, then we are doomed. The whole existence of humankind is endangered. We are an endangered species now and we have to take steps to prevent the extinguishing of the human species. We owe an allegiance to humanity. Since there is no other way, then we must proceed in this way. Therefore, if we must do it, then there is hope that it will be done.

Krieger: I know that you have a great concern for young people and for life. If you could give one message to the young people of today, what would it be?

Rotblat: My message would be: “You have a duty. You enjoy many fine aspects of life, better perhaps than your parents had. We have bequeathed to you many of the things which we ourselves have inherited and have tried to improve on, to ensure that you have a happy life. I think it is your duty to ensure that this goes on to your children and your grandchildren so that human life on this planet will continue to be enriched all the time.”

Krieger: Thank you.

October 29, 1997
From Arms Control to Abolition: Global Action for a Nuclear Weapons Free World
During the Cold War, nuclear arsenals were rationalized on the basis of deterrence, and the nuclear weapons states developed military strategies of mutual assured destruction (MAD). Since it was recognized that attacks and counter-attacks with nuclear arsenals would be without precedent in their destructiveness, even to the point of destroying human civilization and most life on Earth, the acronym MAD seemed particularly appropriate. During the Cold War period, leaders tried to bring some modicum of sanity to an otherwise insane situation by engaging in arms control discussions and occasionally reaching agreements regarding the control of nuclear arsenals.

The two most important arms control agreements during the Cold War were reached in the 1960s. The first was the Partial Test Ban (PTB) Treaty, which was signed and entered into force in 1963. This treaty prohibited nuclear testing in the oceans, atmosphere, and outer space. The PTB was achieved under considerable pressure from citizens throughout the world who objected to the dangerous health effects associated with atmospheric nuclear testing. Among the leaders in the protest against atmospheric nuclear testing were Linus Pauling, the great scientist, and his wife Ava Helen Pauling, who organized a petition signed by 9,235 scientists, which Pauling delivered to U.N. Secretary General Dag Hammerskjold on January 15, 1958. The document was entitled, “Petition to the United Nations Urging that an International Agreement to Stop the Testing of Nuclear Bombs Be Made Now.”

The PTB did not put an end to nuclear testing, and thus to the development of new and more efficient nuclear weapons. Rather, it resulted in moving nuclear testing underground. In this sense, the treaty was more an environmental treaty than an arms control treaty. The only thing that the treaty disarmed was public outrage at the health risks related to atmospheric nuclear testing. The treaty contained the promise of “seeking to achieve the discontinuance of all test explosions of nuclear weapons for all time,” which was widely recognized as a critical step in ending the nuclear arms race. Unfortunately, the goal of ending nuclear testing remained essentially dormant for the next 33 years until a Comprehensive Test Ban Treaty (CTBT) was finally adopted by the United Nations and opened for signatures in 1996.

The second important arms control agreement during the Cold War was the Non-Proliferation Treaty (NPT), which was signed in 1968 and entered into force in 1970. This treaty sought to halt the spread of nuclear weapons and weapons-grade nuclear materials to states not in possession of nuclear arsenals as of January 1, 1967. The treaty recognized two classes of states: nuclear weapons states (United States, United Kingdom, France, Russia, and China), and non-nuclear weapons states (all other states). The nuclear weapons states agreed not to transfer nuclear weapons or weapons-grade nuclear materials to the non-nuclear weapons states, and the non-nuclear weapons states agreed not to receive or otherwise acquire nuclear weapons or weapons-grade nuclear materials.

When the NPT was negotiated, the non-nuclear weapons states recognized the unequal nature of the treaty, and argued for two concessions from the nuclear weapons states. First, nuclear energy for peaceful purposes was described in the treaty as an “inalienable right,” and nuclear weapons states promised to help the non-nuclear weapons states in developing nuclear power plants. Second, the non-nuclear weapons states objected to the two-tier structure of nuclear “haves” and “have-nots” created by the treaty, and negotiated Article VI of the treaty which called for good faith negotiations to achieve a cessation of the nuclear arms race at an early date, nuclear disarmament, and general and complete disarmament under strict and effective international control. Article VI of the NPT, despite its carefully crafted language, is one of the most important, if not the most important, of all commitments made by nuclear weapons states in arms control agreements.

In exchange for not attempting to develop or acquire nuclear weapons, the non-nuclear weapons states had a reasonable expectation under Article VI that the nuclear weapons states would proceed with good faith negotiations for nuclear disarmament, to rid the world of the terrible threat of nuclear holocaust. Until the end of the Cold War, however, the nuclear weapons states had made scant progress toward nuclear disarmament, and were widely viewed by states from the Non-Aligned Movement (NAM) as being in violation of their Article VI commitment. In fact, at the end of the Cold War, the strategic nuclear arsenals of the nuclear weapons states were considerably larger than they were when the NPT was signed in 1968.

In the aftermath of the Cold War, the rationale for retaining nuclear arsenals has evaporated. Deterrence was always a questionable theory, but without the threatened attack of an enemy, it clearly makes no sense at all. Nuclear weapons can be more clearly recognized in the aftermath of the Cold War as “instruments of genocide” that serve no reasonable purpose. Since the end of the Cold War, increasing pressure has mounted for the nuclear weapons states to fulfill the promise under Article VI of the Non-Proliferation Treaty to achieve nuclear disarmament.

START I, START II, and START III

Strategic Arms Reduction Talks in the early 1990s resulted in two treaties agreeing to the reduction of the numbers of nuclear weapons in the arsenals of the United States and former Soviet Union. START I, which was signed by Presidents Gorbachev and Bush in 1991, called for reductions to approximately 6,500 deployed strategic weapons on each side. START II, signed by Presidents Bush and Yeltsin in 1993, called for further reductions of deployed strategic nuclear weapons to 3,000 to 3,500 on each side by January 1, 2003. START II was ratified by the U.S. Senate in 1996, but has yet to be ratified by the Russian Duma, many members of which have expressed deep concerns over the U.S.-led efforts to expand NATO eastward. In September 1997, the U.S. and Russia agreed to extend the date for achieving START II reductions for five years to the end of 1997.

However, even if START II is successfully completed, there will still be as many deployed strategic nuclear weapons in the arsenals of the two major nuclear weapons states as there were when the NPT was signed in 1968. This has led many of the non-aligned states to question the sincerity and good faith of the nuclear weapons states in fulfilling their Article VI promises.

Presidents Clinton and Yeltsin have had preliminary discussions regarding START III, and have suggested that this agreement could reduce nuclear arsenals to 2,000-2,500 deployed strategic nuclear weapons on each side by the year 2007. This advance, however, is uncertain due to the Russian opposition to the proposed expansion of NATO. Even more significant is that the proposed START III agreement is simply more incrementalism. It lacks a vision of a world without nuclear weapons, and simply reduces the overkill ratio to a somewhat lower level. It is consistent with maintaining the two-tier structure of nuclear “haves” and “have-nots” indefinitely. It misses the tremendous opportunity that currently exists to move from arms control to abolition.

The Non-Proliferation Treaty Review and Extension Conference

A NPT Review and Extension Conference was called for by the terms of the treaty 25 years after the treaty entered into force. The purpose of this conference, which was held in 1995, was to determine whether the treaty should be extended indefinitely or for a period or periods of time. The nuclear weapons states, which saw the treaty as advantageous to themselves, argued for an indefinite extension of the treaty. Many non-aligned states, though, questioned the good faith of the nuclear weapons states, and suggested that the treaty should be extended for periods of time and re-extended contingent upon sufficient progress toward fulfillment of the Article VI promise of nuclear disarmament.

At the conference the nuclear weapons states and their allies (primarily the NATO states) exerted considerable pressure on the non-aligned states and finally prevailed in having the treaty extended indefinitely. However, at the insistence of the non-aligned states, certain non-binding agreements were attached to the indefinite extension which called for, among other steps, the following:

“(a) The completion by the Conference on Disarmament of the negotiations on a universal and internationally and effectively verifiable Comprehensive Nuclear-Test-Ban Treaty no later than 1996. Pending the entry into force of a Comprehensive Test-Ban Treaty, the nuclear-weapon States should exercise utmost restraint;

“(b) The immediate commencement and early conclusion of negotiations on a non-discriminatory and universally applicable convention banning the production of fissile material for nuclear weapons or other nuclear explosive devices, in accordance with the statement of the Special Coordinator of the Conference on Disarmament and the mandate contained therein;

“(c) The determined pursuit by the nuclear-weapon States of systematic and progressive efforts to reduce nuclear weapons globally, with the ultimate goals of eliminating those weapons, and by all States of general and complete disarmament under strict and effective international control.”

Abolition 2000 Global Network

At the NPT Review and Extension Conference, an Abolition Caucus — composed of representatives of citizen action groups from throughout the world — was organized to share information and to join in lobbying the delegates. From this caucus an 11-point plan, calling for nuclear weapons abolition was drafted and agreed to. This document was called the Abolition 2000 Statement. The Statement called for a treaty by the year 2000 for the prohibition and elimination of all nuclear weapons within a timebound framework.

The Abolition 2000 Statement became the basis for the establishment of the Abolition 2000 Global Network, which has now grown to over 700 citizen actions groups from six continents. It is a dynamic citizen network committed to the goal of achieving a nuclear weapons free world.

The World Court Project

The World Court Project (WCP) was initiated by three major international citizen action groups: the International Lawyers Against Nuclear Arms (IALANA), the International Physicians for the Prevention of Nuclear War (IPPNW), and the International Peace Bureau (IPB). The purpose of the project was to obtain an opinion from the International Court of Justice (ICJ) on the legality of the threat or use of nuclear weapons. Through intensive lobbying of delegates to the World Health Organization and the United Nations General Assembly, the WCP was successful in having both of those bodies request an opinion from the Court.

The question posed by the World Health Organization (WHO) focused on use of nuclear weapons: “In view of the health and environmental effects, would the use of nuclear weapons by a State in war or other armed conflict be a breach of its obligations under international law including the WHO Constitution?” The question posed by the General Assembly also included the threat of use: “Would the threat or use of nuclear weapons in any circumstance be permitted under international law?”

The Court received considerable written and oral argument from states. On July 8, 1996, the Court issued its opinion on the question posed by the U.N. General Assembly. At the same time, the Court declined to issue an opinion on the question posed by WHO, stating that their question failed to meet the criteria of arising within the scope of WHO’s activities. In response the General Assembly, the Court issued a 37 page opinion, and each of the 14 judges on the Court issued a separate statement with the opinion. The Court found that any threat or use of nuclear weapons must conform with the principles and rules of international humanitarian law. This means that nuclear weapons cannot be threatened or used in such a manner as to fail to discriminate between civilians and combatants, and that they must not cause unnecessary suffering to combatants. Based primarily upon this finding, the Court then found that any threat or use of nuclear weapons would be generally illegal.

The Court was unable to determine, however, whether the threat or use of nuclear weapons would be legal or illegal “in an extreme circumstance of self-defence, in which the very survival of a state would be at stake.” The Court’s opinion went a long way toward shutting the door on the threat or use of nuclear weapons, but it left open this narrow possibility in the case of the very survival of a state. Some of the judges pointed to the irony of leaving open the possibility of using nuclear weapons in conditions in which the survival of a state was at stake, since such use could result in escalation endangering the survival of all life.

Given what the Court found to be an ambiguity in international law involving an “extreme circumstance of self-defence,” it reviewed Article VI of the Non-Proliferation Treaty, and concluded: “There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.” The Court’s ruling on the Article VI commitment clarifies that nuclear disarmament must be complete, that it must be disarmament “in all its aspects,” and that it is not tied to conventional disarmament or other security issues.

The nuclear weapons states have argued that the Court’s opinion is advisory only, and they have not acted on it. While the opinion is, in fact, advisory in nature, it is still the pronouncement of the highest Court in the world on an issue of utmost importance. The significance of the opinion has not been lost on the states in the non-aligned movement that have been pressing for complete nuclear disarmament. Nor has the significance of the opinion been lost on citizen action groups around the world, such as the Abolition 2000 Global Network, that have been pressing the case for the abolition of nuclear arsenals.

The Canberra Commission Report

In response to French nuclear weapons testing in the Pacific, the Australian government established a prestigious commission of eminent individuals to examine the case for the elimination of nuclear weapons. Participants in the Commission included General Lee Butler, a former commander of the U.S. Strategic Command; Robert McNamara, a former U.S. Secretary of Defense; Michel Rocard, a former French Prime Minister; Field Marshall Micheal Carver, a former British Chief of Defence Staff; Jacques Cousteau, the late ocean explorer and advocate for future generations; and Joseph Rotblat, founder and president of the Pugwash Conferences on Science and World Affairs and the 1995 Nobel Peace Laureate.

The Report of the Canberra Commission stated: “Nuclear weapons pose an intolerable threat to humanity and its habitat, yet tens of thousands remain in arsenals built up at a time of deep antagonism. That time has passed, yet assertions of their utility continue…. A nuclear weapon free world can be secured and maintained through political commitment, and anchored in an enduring and binding legal framework.”

The Report called for some immediate steps to reduce the nuclear threat:
- Taking nuclear forces off alert;
- Removal of warheads from delivery vehicles;
- Ending deployment of non-strategic nuclear weapons;
- Ending nuclear testing;
- Initiating negotiations to further reduce United States and Russian nuclear arsenals; and
- Agreement amongst the nuclear weapons states of reciprocal no first use undertakings, and of a non-use undertaking by them in relation to the non-nuclear weapon states.
These steps would take us a long way toward reducing the immediate risks of nuclear warfare, but as yet the nuclear weapons states have resisted their implementation. The only exception is the signing of the CTBT and, even in this case, at least one of the nuclear weapons states, the United States, is continuing to conduct “sub-critical” nuclear tests which undermine the spirit of the treaty.

The Comprehensive Test Ban Treaty

A Comprehensive Test Ban Treaty was finally opened for signatures in September 1996, but it has yet to enter into force and the procedures for entry into force make it unlikely that this will occur. Entry into force requires the ratification of all 44 nuclear capable states, and India has made it clear that it will not sign or ratify the treaty so long as there is no firm commitment by the declared nuclear weapons states to the elimination of their nuclear arsenals. India’s position is that it is unwilling to give up the option of conducting nuclear tests in a world in which the declared nuclear weapons states, which have already tested extensively, refuse to make a firm commitment to eliminate their nuclear arsenals and thus continue to rely upon them for their security. While India has been widely criticized for this position, one must admit that this position is not without logic.

The CTBT has been marred by the insistence of the U.S. that “sub-critical” tests fall within the framework of the treaty. The U.S. has already begun a series of such tests, and it is likely that other nuclear weapons states will follow its lead. The U.S. is also planning a Stockpile Stewardship Program, on which it plans to spend some $45 billion over the next ten years. This program includes the development of new and expensive structures for laboratory testing of nuclear weapons. Again, it is likely that other nuclear weapons states will follow the U.S. lead by continuing to test by other means that circumvent the spirit if not the letter of the CTBT.

The Statement by International Generals and Admirals*

In December 1996 some 60 retired generals and admirals from around the world issued statements calling for the elimination of nuclear weapons. U.S. Generals Lee Butler and Andrew Goodpaster issued a statement at the National Press Club in Washington, DC. Their statement called for “pursuit of a policy of cooperative, phased reductions with serious commitments to seek the elimination of all nuclear weapons.”

As a separate statement, 58 of these retired generals and admirals argued “the continuing existence of nuclear weapons in the armories of nuclear powers, and the ever present threat of acquisition of these weapons by others, constitute a peril to global peace and security and to the safety and survival of the people we are dedicated to protect.” The generals and admirals called for the following three steps:

“First, present and planned stockpiles of nuclear weapons are exceedingly large and should now be greatly cut back;

“Second, remaining nuclear weapons should be gradually and transparently taken off alert, and their readiness substantially reduced both in nuclear weapons states and in de facto nuclear weapons states; and

“Third, long-term international nuclear policy must be based on the declared principle of continuous, complete and irrevocable elimination of nuclear weapons.”

A Nuclear Weapons Convention

In December 1996 the United Nations General Assembly adopted a resolution (51/45M) expressing appreciation to the International Court of Justice for responding to its request. It underlined the Court’s unanimous conclusion that an obligation exists “to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects.” The resolution called for “commencement of multilateral negotiations in 1997 leading to an early conclusion of a nuclear weapons convention prohibiting the development, production, testing, deployment, stockpiling, transfer, threat or use of nuclear weapons and providing for their elimination.”

In order to demonstrate that drafting a nuclear weapons convention was a technically feasible possibility, two citizens action groups — the Lawyers Committee on Nuclear Policy (LCNP) and the International Network of Engineers and Scientists Against Proliferation (INESAP) — prepared a draft model Nuclear Weapons Convention. This draft was made public in April 1997 at the PrepCom for the NPT Review Conference.

From Arms Control to Abolition

Arms control has been a method of maintaining strategic balance between the key nuclear weapons states, while at the same time maintaining the two-tier structure of nuclear “haves” and “have-nots.” In other words, arms control has been in part a dangerous game to maintain special privilege played at the precipice of nuclear holocaust. It has been a game of high stakes, both financially and militarily. In the end, it caused the disintegration of the Soviet Union, and the jury is still out on what its ultimate effects will be on the United States, the one nation that has used nuclear weapons in warfare.

In the aftermath of the Cold War, it is now a particularly propitious time to move forward with the abolition of nuclear weapons. To do so will require a change in mindset of decision-makers in the nuclear weapons states, many of whom seem determined to hold on to their nuclear arsenals. The International Court of Justice has spoken on the obligation to achieve complete nuclear disarmament. The Canberra Commission has offered positive proposals for eliminating the immediate threat. The international generals and admirals have argued the case for the security benefits of eliminating nuclear arsenals.

Citizen action groups around the world have joined together in the call for achieving a treaty by the year 2000 calling for the prohibition and elimination of nuclear weapons within a timebound framework. They have called for achieving this treaty by the year 2000 so that the people of the world can enter the 21st century with a treaty in place leading to the elimination of all nuclear weapons within a timebound framework.

Unfortunately, the leaders of the nuclear weapons states do not seem to have heard or understood the arguments for eliminating their nuclear arsenals. They are expending their efforts on arms control proposals, like the CTBT, which they try to evade in practice. These leaders do not seem to have grasped that this is not a game, and that “superiority” cannot be realized by arsenals of genocidal weapons. They are still thinking in old ways that are no longer appropriate in the Nuclear Age. Their thinking could pull us into the vortex of nuclear conflagration, by accident or design.

Einstein argued that “The splitting of the atom has changed everything save our modes of thinking, and thus we drift toward unparalleled catastrophe.” The new way of thinking that Einstein called for must take into account the tremendous destructive power of the “instruments of genocide” in the arsenals of the nuclear weapons states. If we oppose genocide, we must also oppose basing our security on nuclear weapons.

When enough people speak out and demand that government leaders change their ways of thinking, then these leaders will change. Until enough people demand such change, government officials will likely continue to tread old paths of the mind. We need a united effort of people everywhere to demand that the goal of a nuclear weapons free world be realized, and that we enter the 21st century with a treaty in place that will lead to elimination of nuclear weapons within a timebound framework.

Bibliography

Advisory Opinion of the International Court of Justice on the Threat or Use of Nuclear Weapons 1996, United Nations General Assembly, A/51/218, 15 October 1996

Model Nuclear Weapons Convention 1997, Lawyers’ Committee on Nuclear Policy, New York

Report of the Canberra Commission on the Elimination of Nuclear Weapons 1996 National Capital Printers, Canberra, Australia [http://www.dfat.gov.au/dfat/cc/cchome.html]

Evan, William and Ved Nanda (eds.) 1995 Nuclear Proliferation and the Legality of Nuclear Weapons, University Press of America, Inc., Lanham, Maryland

Pauling, Linus 1983 No More War!, Dodd, Mead & Company, New York

Roche, Douglas, Unacceptable Risk: Nuclear Weapons in a Volatile World 1995 Project Ploughshares and Nuclear Age Peace Foundation, Ontario

Rotblat, Joseph, et.al. (eds.) A Nuclear-Weapon-Free World Desirable? Feasible? 1993 Westview Press, Boulder, Colorado

Ruggiero, Greg and Stuart Sahulka (eds.) 1996 Critical Mass, Voices for a Nuclear-Free Future, Open Media, Westfield, New Jersey

INTERNATIONAL COURT OF JUSTICE ADVISORY OPINION

ON THE LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS

July 8, 1996 Paragraph 105. For these reasons, THE COURT,

(1) By thirteen votes to one, Decides to comply with the request for an advisory opinion;

In Favour. President Bedjaoui; Vice-President Schwebel; Judges Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Ferrari Bravo, Higgins;

Against: Judge Oda.

(2) Replies in the following manner to the question put by the General Assembly:

A. Unanimously, There is in neither customary nor conventional international law any specific authorization of the threat or use of nuclear weapons;

B. By eleven votes to three, There is in neither customary nor conventional international law any comprehensive and universal prohibition of the threat or use of nuclear weapons as such;

In Favour: President Bedjaoui; Vice-President Schwebel; Judges Oda, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, Ferrari Bravo, Higgins;

Against: Judges Shahabuddeen, Weeramantry, Koroma.

C. Unanimously, A threat or use of force by means of nuclear weapons that is contrary to Article 2, paragraph 4, of the United Nations Charter and that fails to meet all the requirements of Article 51 is unlawful;

D. Unanimously, A threat or use of nuclear weapons should also be compatible with the requirements of the international law applicable in armed conflict, particularly those of the principles and rules of international humanitarian law, as well as with specific obligations under treaties and other undertakings which expressly deal with nuclear weapons;

E. By seven votes to seven, by the President’s casting vote, It follows from the above-mentioned requirements that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law,

However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake;

IN FAVOUR: President Bedjaoui; Judges Ranjeva, Herczegh, Shi, Fleischhauer, Vereschetin, Ferrari Bravo;

AGAINST: Vice-President Schwebel; Judges Oda, Guillaume, Shahabuddeen, Weeramantry, Koroma, Higgins.

F. Unanimously, There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.

Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this eighth day of July, one thousand nine hundred and ninety-six, in two copies, one of which will be placed in the archives of the Court and the other transmitted to the Secretary-General of the United Nations.

(Signed) Mohammed Bedjaoui, President.

(Signed) Eduardo Valencia-Ospina, Registrar.

President Bedjaoui, Judges Herczegh, Shi Vereshchetin and Ferrari Bravo append declarations to the Advisory Opinion of the Court.

Judges Guillaume, Ranjeva and Fleischhauer append separate opinions to the Advisory Opinion of the Court.

Vice-President Schwebel, Judges Oda, Shahabuddeen, Weeramantry, Koroma and Higgins append dissenting opinions to the Advisory Opinion of the Court.
October 4, 1997
Peace Declaration

It was 52 years ago today that a single atomic bomb exploded over Hiroshima. The skies flashed brighter than a thousand suns and a huge mushroom cloud rose above the city. Untold numbers perished in the sea of flames that followed, and the survivors still suffer from radiation’s debilitating aftereffects.

This event engendered profound distrust of the scientific civilization that has made such dramatic progress over the last hundred years. Science and technology have spawned many conveniences and made our live more comfortable, yet they have also been employed to create the weapons of mass destruction used over Hiroshima and Nagasaki. Not only do nuclear weapons imperil humanity’s future, the civilization that created them gravely impacts the whole of the global ecosystem.

We in Hiroshima are outraged that nuclear weapons have yet to be abolished and banished from the face of the earth, and we are very uneasy about the future of civilization.

In signing the Comprehensive Test Ban Treaty, the international community agreed to put a halt to all nuclear explosions, but much remains to be done before the CTBT can go into force. This was the situation when the United States conducted a subcritical test which it contends is not banned by the CTBT language. On the one hand, the U.S. promises to reduce its stockpiles of nuclear weapons, and on the other hand it obstinately maintains its nuclear testing program. This attitude is utterly devoid of the wisdom needed if all peoples are to coexist. We implore the global community to recognize that nuclear weapons stand at the very apex of all the violence that war represents.

The Fourth World Conference of Mayors for Peace through Inter-city Solidarity currently meeting in Hiroshima seeks a nuclear-free world and is deliberating calling upon all governments and international institutions to conclude a pact banning the use of nuclear weapons and to expand nuclear-weapons-free zones. Hiroshima specifically calls upon the government of Japan to devise security arrangements that do not rely upon a nuclear umbrella.

Japan and other countries differ in language, religion, and customs, and there are also some differences of historical perspective, particularly with our neighbors. All the more do we hope that candid dialogue among all the peoples of the world will result in a shared vision of a brighter tomorrow.

With the world in tumultuous transition, we intend to take every opportunity at home and abroad to convey not only the terrible violence, destruction, and death the atomic bomb wrought but also the inspiring beauty of human life striving toward the future despite experiencing abject despair. The culture of peace generated in the process of Hiroshima’s rebirth is a beacon of hope for all humanity, just as the Atomic Bomb Dome, now designated a World Heritage site, stands as a symbol of hope for all who reject nuclear weapons.

Along with paying our utmost respects to the souls of those who died, we pledge ourselves anew on this Peace Memorial Day to pressing for compassionate assistance policies grounded in reality for the aging hibakusha wherever they may live.

“Since wars begin in the minds of men that the defenses of peace must be constructed.” This thought from the UNESCO (United Nations Educational, Scientific and Cultural Organization) Constitution must be indelibly etched in our hearts, and I hereby declare it Hiroshima’s resolve.

August 6, 1997