(Publisher's Note: WCN is pleased and honored to bring this historic and, I might add, exclusive report to our readers in this, our final issue for 1995. It arrived from Kevin Sanders, Special Projects Director of the War & Peace Foundation just 24 hours before going to press, so we apologize for its slightly underedited look. Our normal format is 24 pages. But to include this vital, timely material-and WCN has a virtual exclusive on it!-we have gone to 32 pages despite the added printing and mailing cost. Incidentally, we would appreciate help from concerned readers to meet this unforeseen expense.Incredibly, videographer-journalist Sanders and crew were the only camera in the Hague Court during the entire proceedings! Neither the UN nor the Court itself nor indeed any of the major media syndicates considered this hearing of sufficient importance to record it visually. That's a story in itself. The funding for the Sanders coverage came from Georgia Lloyd, of The Campaign for World Government, and Robin Lloyd, publisher of the monthly review Toward Freedom. On behalf of a grateful public, WCN heartily thanks them for their assistance.)
For more than two weeks (since 10/25), the World Court in the Hague has been hearing presentations in an historic case calling for an advisory opinion on the legality of the use and threat to use nuclear weapons. The case is brought by the World Health Organization and the United Nations General Assembly. Many of the 25 nations making presentations described the hearings as the most important in the history of the Court. Malaysia said the judges were being called on as the "wise elders of the human tribe" to render a "uniquely spiritual judgment to save humanity from annihilation."
Despite the momentous significance of the event-or perhaps, because of it-the hearings were entirely ignored by the world's mainstream media. Throughout the hearings the only national and international broadcast reports on the proceedings have been radio reports I did for Pacifica Radio and Radio for Peace International.
However, Americans may soon have a chance to see the hearings on the Court TV cable channel. In a last minute decision, Court TV contacted us in The Hague and asked us to help arrange a broadcast quality taping of the entire event. For most of the hearings, ours was the only camera present, preserving the events for replay to television viewers, and in a broader sense, for history itself. (Call your local cable operator to find out where and when you can see the program. It will probably be presented sometime in December. Court TV will probably also make the proceedings available on home video.)
The hearings makes compelling viewing. Never have the arguments against nuclear weapons been presented at such length, with such insistence and detail. Nation after nation argued that nuclear weapons violated humanitarian laws, caused unjustifiable suffering and destruction, were indiscriminate in their impact and produced radioactive fallout that threatened not just those in the target area but anyone in the path of the radioactivity. Many nations warned that radiation causes illness and genetic damage in present and future generations and threatened the survival of life on the planet.
Indeed, radioactivity was at the center of the argument. All the nations calling on the Court for a ruling that nuclear weapons use and threat of use are illegal, stressed the unique short-term and long-term impact of radiation from nuclear bombs. The nuclear weapons nations, in the course of torturous and at times grotesquely contorted arguments attempting to justify their threatened use of nuclear weapons, almost never mentioned the radiation problem. It is unanswerable.
The tragedy of the nuclear age and the development of huge arsenals of radioactive weapons will become evident to viewers as they watch the gripping presentations unfold on Court TV. The hearings will provide a profound education for the American people.
The broadcast is also likely to sharpen interest in the decision of the Court due sometime in January 1996. A decision that the nuclear weapons states are, in effect outlaw nations, would have a jolting effect on the nuclear club and would almost certainly hasten disarmament. But even if the court declines to rule on the issue-as they very well might-the mere fact that such a question has been officially framed and debated so fiercely before the Court, with the vast majority of nations calling for nuclear weapons to be declared illegal, has forever changed the context in which such weapons are perceived. In the great arc of history, the case will be seen as turning point in the nuclear age.
In the meantime, here are some of the more memorable arguments present to the court. Special thanks goes to Pamela Meidell of the World Court Project for her reporting throughout the hearings for Peacenet and for the War & Peace on-line EARTHSPAN Newsflash on World Wide Web. We draw on her reports for the following quotes.
World Court Hearings Marshall Islands test victim shocks Court, Costa Rica counters French claim on deterrence.
THE HAGUE-Today, at the International Court of Justice where it is considering the legality of the threat or use of nuclear weapons, the Marshall and Solomon Islands added graphic testimony of the horrors of these weapons.
On behalf of the Marshall Islands Government, Theodore Kronmiller argued that their experience demanded that the Court conclude "that there are no uses of nuclear weapons that are compatible with international law."
In moving testimony, Mrs. Lijon Eknilang, an indigenous woman from Rongelap Atoll who was exposed to fallout from the Bravo test, said that as a result "babies are born with no bones in their bodies, transparent skin, hearts and lungs showing. The babies usually live for a day or two, before they stop breathing. Many women die from abnormal pregnancies....My purpose for traveling such a great distance to appear before the Court today is to plead with you to do what you can not to allow the suffering that we Marshallese have experienced to be repeated in any other community in the world."
Solomon Islands Minister for Police and National Security, Victor Ngele, read a statement by this year's Nobel Peace Prize winner, Joseph Rotblat. Rotblat confirmed that, contrary to US and UK claims, nuclear weapons inevitably cause unnecessary suffering, and have indiscriminate effects on civilians and on territories of third states.
Philippe Sands, lawyer for the Solomon Islands, showed that nuclear weapon use or threat violate existing environmental and human rights law. Professor James Crawford summed up the Pacific Islands request for an advisory opinion confirming the illegality of nuclear weapon use and threat of use.
Also making the case for illegality, Costa Rica's legal counsel Mr. Carlos Vargas-Pizarro countered France's claim that deterrence has maintained world peace and security. He said: "It is as difficult to establish that deterrence has kept the peace...as it is to prove that ghosts exist..." He added that "the value of deterrence, whatever one's view of it, is irrelevant to questions before the Court."
Russian Statement, 10 November 1995
Mr. A.G. Khodakov, legal director of the Ministry of Foreign affairs, gave the oral statement for the Russian Federation, stating at the outset his desire to "put aside all political and emotional aspects" of the question. The Court should refrain, he stated, from giving an opinion on the WHO question, since it falls outside the WHO's competence and would thus set a damaging precedent for international law
Address by the Honorable Paul east, Attorney General of Aotearoa/New Zealand excerpts:
I wanted to record at the outset New Zealand's outrage at the resumption of French nuclear testing in our region of the world. South Pacific countries have had to put up with nuclear testing for far too long. They have made it plain, at various meetings in the region and in international forums that the latest series of French nuclear tests is unacceptable. These tests, and France's refusal to stop them forthwith, have only reinforced in our mind that the international community must turn up the pressure on nuclear weapons. Simply put, the world must now be rid of them.
The idea of a continuing obligation owed to future generations is increasingly recognized in environmental law. Indeed it is noteworthy that over 200 years ago, an American President, James Madison, espoused a not dissimilar principle when writing in the National Gazette" on February 2, 1792:
"Each generation should bear the burden of its own wars instead of carrying them on at the expense of other generations."
...The New Zealand statement concluded: "...a declaration of illegality would serve as a powerful further step to the elimination of nuclear weapons.... The Court needs to play its part in helping to set the scene for that to happen.... The potential consequences of failure, for all humanity are too great."
New Zealand was followed by another strong statement from the Philippines, who opened with the comment that "during the Cold War the rule of law became hostage to nuclear terror." It argued that the burden of proof of legality is on the nuclear weapon states, because the presumption must be that nuclear weapons are illegal per se under international law. Its statement emphasized that the threat or use of nuclear weapons violates the UN Charter, because it is based on fundamental rules of international law banning any threat or use of force.
Dato' Mohtar Abdullah, Attorney General of Malaysia, testified: "The policies of nuclear deterrence espoused by the five declared nuclear weapons States continue to stimulate the nuclear ambitions of other countries, thereby increasing overall instability. The United Nations General Assembly has consistently recognized this instability and has repeatedly called for the elimination of nuclear weapons."
..."In the final analysis this absurdity of possession, use and threat of use is about power and about hanging on tenaciously to power, to the exclusion of others. The Court is being asked by the nuclear weapons states, in essence, to perpetuate the right of these five countries to that power apparatus, even when the rest of humanity rejects the diabolical potential inherent in nuclear weapons. If the laws of humanity and the dictates of the public conscience demand the prohibition of such weapons, the five nuclear weapons states, however powerful, cannot stand against them. It is a perversion of the right of self defense to invoke it in this case. The right to self defense is not unlimited. It is subject to the fundamental principles of humanity. International law cannot be utilized to support State practices which deviate from fundamental principles and mainstream aspiration. Otherwise we would be legitimizing the principle that might is right and would have to come to the frightening conclusion that international law is on the side of the powerful, as interpreted by the powerful.
"The designing, testing, manufacture, possession and deployment of nuclear weapons are among the greatest threats to the right to life which confront mankind today."
Mexico invokes possibility of NPT withdrawal, Indonesia focuses on threat/use link Mexican Ambassador Sergio Gonzalez Galvez dismissed arguments that the Court should not rule on the issue, saying, "To postpone giving a legal opinion on the threat or use of nuclear weapons until an actual case occurs is like substituting medicine with an autopsy."
France and Germany Uphold Deterrence
Dismissing the Australian argument presented Monday that nuclear weapons violate fundamental human rights, threaten the security of the environment, and endanger civilian populations, Monsieur Perrin de Brichambaut of France stated, "Such attempts are made in vain."
French case emphasized that nuclear weapons are not fundamentally different from other types of weapons. France also argued that when the use of armed force is legal, there is no prohibition on the use of nuclear weapons. "Recourse to nuclear weapons is authorized in cases of the exercise of the natural right to individual or collective legitimate defense..." Perrin de Brichambaut said, "In effect, neither the customary law applicable to legitimate defense nor Article 51 of the [UN] Charter regulates or limits the military means by which states may exercise this right."
France stated that the World Health Organization (WHO) exceeds its authority and scope by asking the question. He implied that the only function of the WHO is to prepare to treat the victims of nuclear war, not try to prevent the means of their suffering. IALANA's Peter Weiss characterized the French statement as "a soliloquy of the deaf."
Germany's Hartmut Hillgenberg argued that a ruling from the ICJ in this case "might jeopardize the complex and sensitive process of negotiating nuclear disarmament," and might affect the perception of the Court's integrity "since the Court's opinion would necessarily be utilized in on-going negotiations by one side or the other."
Statement of Egypt
Eminent professor of international law, Georges Abi-Saab of Egypt today empowered the justices of the World Court to answer the questions of the World Health Organization and the UN General Assembly with a ruling that nuclear weapons are illegal under customary international humanitarian law and expressed his country's hope that they would do so.
With an exhaustive review of precedent going back to the origins of the Court, Professor Abi-Saab first addressed the procedural question of World Court discretion in agreeing to rule on these questions. He concluded that the Court may only decline a ruling if there are compelling reasons to do so in order to protect the integrity of its judicial function. He reminded the Court that admissibility to its jurisdiction depends solely on two questions: Is the matter a legal question? And is it within the jurisdiction of the requesting organization to request? The professor found the answers in this case are resoundingly affirmative.
Abi-Saab quoted a Swahili proverb, "When two elephants fight, the grass suffers." In this case, he asserted, the "nuclear grass is the overwhelming number of nonnuclear states who are seeking an opinion from the Court on the legal freedom of the elephants," and that a World Court ruling that nuclear weapons are not permitted under international law would be "a building block of a future nuclear safe and reconciled world."
Quoting Sir Arthur Koestler, that "For the first time in history, humanity controls the means of our own extinction," Abi-Saab asserted that nuclear weapons are unique weapons of mass destruction with incalculable and lingering effects. He recalled the World Health Organization's estimate of the human devastation from a nuclear exchange between one million and one billion persons killed. He said we do not need a rule prohibiting nuclear weapons ("although one may well now be in the process of crystallization")....
Abi-Saab mocked a new generation of euphemistic descriptions of nuclear weapons as "clean," "low-yield," "mini-nukes," "surgical," saying that these "invited conjecture bordering on science fiction." "Even with the greatest miniaturization these weapons are still against humanitarian law. If we consider poison gas illegal, how can nuclear weapons be exempted?"
World Court oral proceedings France blusters; Egypt asks Court to find nuclear weapon threat or use illegal.
In a contradictory and rambling statement this morning, France showed it feared that the World Court would find that a threat or use of nuclear weapons is illegal.
The French delegation indulged in a show of frivolous semantic quibbling over the framing of the two questions before the Court. They then warned it not to challenge the legality of nuclear deterrence, because this was the keystone of French and European security.
While France signaled that it intends to use nuclear weapons if need be to protect its vital interests, Egypt urged the Court that it would be improper for it to concern itself with the consequences of its decisions. Professor Abi-Saab stressed that nuclear weapons are weapons of mass destruction with unprecedented effects; while France tried to blur the distinction between them and any other weapon.
France said that the question was too vague because an answer would involve considering an infinite number of scenarios. Peter Weiss, Co-President of the International Association of Lawyers Against Nuclear Arms, commented: "So torture should not have been declared illegal because there is an infinite number of ways of torturing people?"
30 October 1995
The first day of the Oral Proceedings began with a stunning statement by Australia that brought tears to the eyes of many long-time anti-nuclear campaigners in the public galleries. In the second half of Australia's statement, Foreign Minister Gareth Evans stated: "Nuclear weapons are by their nature illegal under customary international law, by virtue of fundamental general principles of humanity. It is therefore illegal not only to use or threaten use of nuclear weapons, but to acquire, develop, test, or possess them." This statement, said in the highest court on the planet by an ally of a nuclear weapon state, makes it all the more extraordinary.
The big event of the day was the presentation of the Declarations of Public Conscience to officials of the International Court of Justice at 11 a.m. this morning. We originally planned to deliver the declarations at 3 p.m., but the Court agreed to accept the nearly 3 million Japanese Consumers' Cooperative Union declarations and invited us to be part of the same delegation.
United Kingdom and United States Stand United:
'Nuclear Weapons are Legal as Long as We say so'
On the last day of two and one-half weeks of hearings at the International Court of Justice where nuclear weapons are on trial, the United Kingdom and the United States clung tenaciously to their increasingly isolated position that it is legal to use nuclear weapons under certain circumstances, while Zimbabwe called upon the fourteen judges to rule that the use or threat to use nuclear weapons in any circumstance is illegal under international law. The US and the UK also argued that the Court should decline to answer the questions asked by the World Health Organization (about use) and the UN General Assembly (about use and threat).
According to John McNeill, Senior Deputy General Counsel, US. Department of Defense, US. nuclear strategy is "designed to provide a range of options in response to armed aggression that will control escalation." He contended that whether a use of nuclear weapons would meet legal requirements, accepted by the US, of discriminating between military targets and civilians would depend on the circumstances. He also theorized that "the policy of nuclear deterrence has saved man millions of lives from the scourge of war during the past 50 years. In this special sense, nuclear weapons have been 'used,' defensively, ever day for over half a century-to preserve the peace."
"In its reliance on deterrence and its cynicism about international law, two relics of the Cold War, the US today displayed a frozen mind set," said Peter Weiss, co-president of the International Association of Lawyers Against Nuclear Arms. "This is ironic in view of the fact that the US took a key role in founding the World Court in 1922."
Claudia Peterson, who lives "downwind" of the Nevada Nuclear Test Site where both the US and UK test nuclear weapons, and lost her father to brain cancer from uranium mining, her sister to melanoma, and her six-year-old daughter to leukemia, reacted, "I felt despair that my government could disregard what they had done to us, their own people. I found it incredible that they called on the International Court of Justice not to decide on this issue. If this basic issue of humanity is not for the World Court to decide, then who is it for?"
Also today, the UK attorney general, Sir Nicholas Lyell, intoned, "To call into question the system of deterrence ...could have a profoundly destablilizing effect. It is nonsense to suggest that states which have relied on nuclear weapons for fifty years have implicitly agreed to a ban on them."
According to John Burroughs, legal coordinator for the World Court Project, "The peculiar logic of the US and UK is that 'nuclear weapons are legal as long as we say so.' But they cannot rightly invoke their own actions-including blocking any effort to prohibit the use of nuclear weapons by treaty-as a reason for the Court to ignore the views of the vast majority of nations."
In stark contrast to the US and UK, Zimbabwe joined the large majority of countries who have argued before the Court that protection of civilians, the environment, and succeeding generations from the effects of warfare rules out the use of nuclear weapons. States advancing this position included Australia, in a surprising shift away from the US camp, as well as Mexico, Egypt, Iran, the Philippines, Indonesia, and New Zealand. Zimbabwe's representative, charge d' affairs Jonathan Wutawunashe, told the Court: "While it is true that a minority of states have relied on nuclear deterrence as part of their security doctrine, that does not prove its necessity or legality. The minority of States which engage in torture, arbitrary detention and other forms of gross human rights violations are in the habit of justifying three practices as necessary for their national security, a proposition that has never been accepted by the vast majority of human-rights-respecting states."
On March 15, 1985, I filed a petition with the International Court of Justice at the Hague citing then Presidents Ronald Reagan and Mikhail Gorbachev as war criminals under the Nuremberg Principles and so-called international law. In actual fact, they were both pointing a nuclear gun at me which, if fired, would kill me.
I claimed that this was an international felony.
Following are excerpts from my petition which, given the holistic character of nuclear weapons and thus their genocidal potential, seeks to broaden the issue to one of human and humanity's survival.
While the many witnesses at the court eloquently and plaintively pled for the twelve judges to condemn the use of nuclear weapons, the November hearings, in my judgment, did not address the fundamental issue which is lawlessness itself - the breeding-gound of war. The International Court of Justice, after all, is but a creature of the war-making national system. To seek from it even an adverse opinion on the most advanced weapon yet conceived in the arsenals of the major nations is to ask it to renounce its very mandate.
An appropriate world court in which the individual had standing exists only in theory. Whatever decision the ICJ renders will not obviate the need for a true world court to adjudicate enforceable world law based on fundamental human rights.
My full petition is available from the World Citizen Foundation and is also on the Internet at our web site: https://worldcitizen.org/.
International Court of Justice
Garry Davis, Applicant, v. Mikhail Gorbachev & Ronald Reagan, Respondents:
2. Under the threat of nuclear extinction, imposed deliberately by the overt national policies of the respondents, therefore a violation of the applicant's fundamental rights as defined by the Universal Declaration of Human Rights, art. 3, applicant seeks from the Court a declaratory judgment citing respondents as "war criminals," in that both the threat of nuclear war and the act, should the threat be carried out, resulting in applicant's death, represents "war crimes," "crimes against the peace," and "crimes against humanity," as cited by the Nuremberg Principles inter alia;
...3. Given the total destructive potential of the nuclear weapons at their personal control, applicant seeks an indictment of respondents under articles II, III, and IV of the Convention of the Prevention and Punishment of the Crime of Genocide.
...IV. WAR AND ITS PREPARATION ARE ILLEGAL
War is the antithesis of law and order. Its very nature is anarchic. From the most ancient times to modern day, enlightened leaders have espoused peace under the rule of law. From 1945, with the introduction of nuclear weaponry, the outlawry of war has become a literal absolute for human survival.
...VII. PEACE IS RESULT OF LAW AND ITS INSTITUTIONS
Peace is a result of law and its institutions. World peace is, therefore, a result of world law and its institutions. Each and every citizen of the world has the right and duty to exercise his sovereignty to evolve such law and its institutions.
1. "The right to adopt means of injuring the enemy is not unlimited;"
2. The only legitimate object which States should endeavor to accomplish during a war is to weaken the military forces of the enemy."
In the Hague Convention of 1907, the Regulations, No. IV, prohibit "wanton or indiscriminate destruction"; and forbids "The attack or bombardment, by whatever means, of towns, village, dwellings or buildings which are undefended.
The 1907 Regulations provide a general yardstick intended for situations where no specific treaty exists to prohibit a new type of weapon or tactic. In such cases"...the inhabitants and the belligerents remain under the protection and the rule of the principles of the laws of nations as they result from the usages established among civilized people from the laws of humanity, and the dictates of public conscience." (Martens Clause)
The Kellogg-Briand Pact of 1928 "outlawed" war as an instrument of national policy.
The United Nations was founded "to maintain international peace and security..." and "...to bring about by peaceful means, and, in conformity with the principle of justice and international law, adjustment of settlement of international disputes or situation which might lead to a breach of the peace..." among other purposes. (U.N.Charter, Preamble)
The U.N. Charter further enjoins all Member-States (art. 56) to promote "universal respect for, and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion."
The illegitimacy of war-making as well as war preparation was further affirmed by the Nuremberg Decisions of 1945 wherein "any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment." (Principle 1); and that "crimes against peace, war crimes and crimes against humanity are punishable as crimes under international law." (Principle VI)`
The Geneva Conventions of 1949 updated and strengthened the 1907 Regulations particularly with regard to the "protection of Civilian Persons in Time of War" requiring belligerents "to ensure the essential requirements for the health, safety and sustenance of the civilian population."
On November 24, 1961, the General Assembly of the United Nations declared in Resolution 1653 (XV):"...any State using nuclear or thermonuclear weapons is to be considered as violating the Charter of the United Nations, as acting contrary to the laws of humanity, and as committing a crime against mankind and its civilization."
In Resolution 33/71 of December 14, 1978, and in Resolution 35/152-D of December 12, 1980, the General Assembly declared "the use of nuclear weapons would be a violation of the Charter of the United Nations and a crime against humanity."
The illegitimacy of war-making and war-preparation is sustained and supported by the foregoing which, in their turn, affirm the moral codes of all major religions from time immemorial.
Furthermore, the official position of the present U.S. administration regarding a "first-strike option" involving nuclear weapons is affirmative. The geo-dialectical position of the Soviet Union vis-a-vis the United States imposes a like response. But in that neither nation would be in a position to retaliate fully after a first nuclear strike, both states must entertain the option of a pre-emptive strike. This in turn threatens the civilian population of both countries including, of course, your applicant. The argument therefore that the applicant is protected by the respondent's policies is fallacious. The contrary is true.
Whether nuclear "war" is "winnable" or not is essentially irrelevant to the fundamental illegality of war itself. However, when the potential for total annihilation exists through use of nuclear weapons, such use renders imperative its being outlawed before the fact and its potential perpetrators declared war criminals.
In conclusion, since the dimension of war has changed from relative to absolute as of 1945, the dimension of the law to deal with it obviously must likewise be absolute. In other words, when the survival of the human race is at stake, the law must encompass the modalities of that total survival.
Wherefore, in his own name as well as in the name of humanity, applicant therefore seeks a Court Order enjoining the respondents to implement article 28 of the Universal Declaration of Human Rights.
However, if the latter premise is true, then it must of moral imperative and absolute necessity extend its mandate beyond its present statute to include the legal protection of fundamental human rights as already defined by the Universal Declaration of Human Rights. For only by so doing can international law serve the cause of world peace.
The present petition, introduced pro se by one having no legal status--or indeed any formal legal training--in any national court in the world yet nonetheless affected in stark survival terms by the policies of the respondents, can serve to extend rationally and legitimately the Court's jurisdiction in the vital area of protection of fundamental human rights for the promotion of world peace, which incidentally, alone can guarantee peace for your applicant personally.
Contrarily, rejection of this petition will be a clear and outright denial of the individual's right to legal standing before his Court, thus a rejection of the Nuremberg Decisions as well as the human rights allied with international law alluded to in the aforementioned documents.
Finally, it would be absurd as well as irreverent to argue that the exclusive character of the state was absolute and eternal. Such an argument would be a denial of the evolution of law itself-not to mention all moral codes-from which resulted this present High Court. Indeed the apparent need for and justification of this court--if it is not merely an illusion of due process founded to preserve the fiction of national sovereignty-implicitly argues for the limitations and therefore non-sovereign character of the states having access to it.
If the Court, therefor, is not a creature unto itself resting solidly on a moral imperative as well as customary international law transcending the state, then it is as frivolous as the law it presumes to adjudicate since the illusion of judicial authority can only impede the true evolution of world due process.
For the forgoing reasons, your applicant prays that this Court grants the several requests set forth herein.