Introduction
One of the great ironies of history is that nuclear weapons were used on Japanese cities on August 6 and August 9, 1945, while between these bombings — on August 8, 1945 — representatives of the United States, Russia, United Kingdom, and France met in London to sign the Charter of the International Military Tribunal (IMT) that would try Axis war criminals.
Since the Axis powers had not developed nor used nuclear weapons, the issue of their legality was never placed before the IMT at Nuremberg. It would take almost 51 years from the first use of a nuclear weapon at Hiroshima for the International Court of Justice (ICJ) to issue an opinion on the legality of the threat or use of nuclear weapons.
The first resolution adopted by the newly established United Nations General Assembly, on January 24, 1946, called for the creation of an Atomic Energy Commission that would be responsible for devising a plan for the elimination of atomic weapons from national arsenals. Unfortunately, early attempts by the United Nations to achieve this goal failed, and by 1949 the Soviet Union had tested its first nuclear weapon. For the next four decades the world was locked in a costly and dangerous nuclear arms race, which required huge expenditures and confronted all nations with the possibility of the annihilation of the human species and most life on Earth.
Throughout the Cold War, the question of the illegality and criminality of nuclear weapons was occasionally raised in the United Nations General Assembly and in legal treatises, but there was no definitive statement on the legality of nuclear weapons. These weapons continued to provide the backbone of the security policies of both the United States and former Soviet Union. Nuclear weapons were also developed and deployed by the United Kingdom, France, and China. The five nations that held permanent seats on the United Nations Security Council all treated their nuclear arsenals as though they were a legitimate element of their national security policies. If, from time to time, the United Nations General Assembly challenged the legality of these weapons, these challenges were essentially ignored by the nuclear weapons states.
In the mid-1960s, however, the United States, United Kingdom and former Soviet Union became concerned with the possibility of proliferation of nuclear weapons to other states and proposed a Treaty on the Non-Proliferation of Nuclear Weapons (NPT). This treaty, which was opened for signatures in 1968, contained a promise by the parties, including the nuclear weapons states, in Article VI that they would proceed with good faith negotiations on a cessation of the nuclear arms race at an early date, on nuclear disarmament, and on general and complete disarmament under strict and effective international control.(1) The NPT entered into force in 1970, but the nuclear weapons states themselves, particularly the United States and the former Soviet Union, continued to be the greatest proliferators of nuclear weapons , as they maintained, improved, and expanded their own arsenals.
The NPT created two classes of states, those that possessed nuclear weapons prior to January 1, 1967 and those that did not. Those that possessed nuclear weapons were the five permanent members of the Security Council (although the Peoples Republic of China did not at that time occupy the seat reserved for China). Those that did not possess nuclear weapons at that time were all other nations. China and France were not among the original signatories of the NPT, but did eventually become parties to the treaty. Israel, India, and Pakistan never became parties to the NPT and are widely understood to have developed nuclear arsenals or to be capable of doing so on short notice.
When the NPT entered into force in 1970, it had a provision in Article X that called for the parties to hold a review and extension conference in 25 years to determine whether the treaty should be extended indefinitely or for a period or periods of time. This conference was held on schedule in 1995, and was one of the most important treaty conferences of the post Cold War period. It essentially pitted the nuclear “haves” against the nuclear “have nots.” The nuclear weapons states and their allies argued that the treaty was a success in preventing proliferation of nuclear weapons, while the non-nuclear weapons states argued that the nuclear weapons states had not kept their Article VI promises of good faith negotiations on nuclear disarmament.
The word “disarmament” in the context of the NPT is ambiguous. It could mean at one extreme interpretation the reduction of one weapon in a large nuclear arsenal, or it could more reasonably mean the elimination of all nuclear weapons (as the non-nuclear weapons states undoubtedly intended it to mean). Despite the fact that their nuclear weapons arsenals were larger in 1995 than they were when the NPT entered into force 25 years earlier, the nuclear weapons states argued that they had made progress in nuclear disarmament. In fact, they had made some reductions in their arsenals and had agreed by the terms of the Strategic Arms Reduction Treaty (START II) to reduce their arsenal still further to 3,000 to 3,500 strategic nuclear warheads each by the year 2003. While this represented progress, it was far from the expectation of nuclear disarmament demanded by the non-aligned countries.
At the end of the NPT Review and Extension conference, the nuclear weapons states, led by the United States, did achieve the goal of an indefinite extension of the treaty. Along with the indefinite extension, however, the parties to the NPT also agreed to certain non-binding principles and objectives. Among these were the completion of a Comprehensive Test BanTreaty (CTBT) during 1996, the immediate commencement and early conclusion of negotiations on a cutoff of production of fissile materials for nuclear weapons, and systematic and progressive efforts toward the ultimate goal of eliminating of nuclear weapons.
At the NPT Review and Extension Conference in 1995, a number of citizen action groups that had been working for the elimination of nuclear weapons joined together in an abolition caucus. From that caucus came the inception of Abolition 2000, a worldwide movement for nuclear weapons abolition. The principal goal of Abolition 2000 was a treaty by the year 2000 in which all nuclear weapons states would agree to eliminate their nuclear weapons within a timebound framework. (See TFF Features, Three Nuclear Documents)
The World Court Project
Another initiative of citizen action groups was a project to obtain an advisory opinion from the International Court of Justice (ICJ) on the legality of the threat or use of nuclear weapons. On a visit to New Zealand in the mid-1980s Richard Falk, a professor at Princeton University (and TFF adviser), raised the idea of going to the Court for a ruling on this matter. Falk’s idea was picked up and expanded by Harold Evans, a retired judge in New Zealand, who wrote a long open letter on the subject. The issue was taken up at the first Congress of the International Association of Lawyers Against Nuclear Arms (IALANA), which was held in the Hague in September 1989. The final declaration of the Congress stated that “the use or threat of use of nuclear weapons is a war crime and a crime against humanity, as well as a gross violation of other norms of international customary and treaty law….”(2)
In 1992 IALANA joined with two other major international organizations opposed to nuclear arms, the International Physicians for the Prevention of Nuclear War and the International Peace Bureau, to form the World Court Project. Eventually these three initiating groups would be joined by hundreds of other citizensí groups from throughout the world. To achieve their goal of an advisory opinion by the ICJ on whether or not the threat or use of nuclear weapons would be legal under international law, the World Court Project needed to mobilize one or more of the principal organs or specialized agencies of the United Nations to officially request the Court for an opinion. The ICJ has two types of jurisdiction: contentious cases between states, and advisory cases brought to the Court by an organ of the United Nations or one of its specialized agencies.(3) The opinion being sought was under the Court’s advisory jurisdiction.
The World Court Project succeeded in May 1993 in having the World Health Assembly of the World Health Organization ask the Court for an opinion on whether the use of nuclear weapons by a state in war or other armed conflict would be a breach of its obligations under international law, including the Constitution of the World Health Organization. A year and a half later, the World Court Project was successful in having the United Nations General Assembly also ask the ICJ for an advisory opinion on whether the threat or use of nuclear weapons in any circumstance is permitted under international law.
The Opinion of the Court
After taking written submissions from states and allowing states to respond to the written submissions of other states, the Court held oral hearings on both requests from October 30 to November 15, 1995. At the oral hearings, the nuclear weapons states (except China which did not participate) and their allies argued that the Court should not render an opinion because the questions put to it were essentially political and therefore should be left to be worked out by states or political organs, such as the Security Council. The nuclear weapons states and their allies further argued that if the Court did decide to render an opinion it should find that the threat or use of nuclear weapons was not necessarily illegal under international law, but depended upon the circumstances of the threat or use.
The non-nuclear weapons states argued that nuclear weapons, like all weapons, were subject to the rules of international humanitarian law, which prohibit the use of weapons incapable of discriminating between civilian and military targets or that are excessively injurious or cause unnecessary suffering. These states argued that any use of nuclear weapons would affect civilians and that these weapons by their very nature were excessively injurious and caused unnecessary suffering. These states further argued that any use of nuclear weapons would cause injury to neutral states and that these weapons were poisonous in nature and therefore were prohibited under existing international law.
The Court decided against issuing an opinion in response to the request by the World Health Organization, on the grounds that their question, as a legal question, did not fall within the scope of their work.(4) The Court did, however, issue an advisory opinion on July 8, 1996 in response to the request by the United Nations General Assembly.(5)
It was a 37-page opinion, which concluded with a two-page dispositif stating the Court’s conclusions. (See Appendix B.) The Court’s opinion was followed by a declaration, a separate opinion, or a dissenting opinion by each of the fourteen judges. In the opinion, the Court found unanimously that international humanitarian law applies to any threat or use of nuclear weapons. Having said this, however, the Court split seven to seven on the heart of the question posed to it. They found 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 international humanitarian law….”(6) The Court continued with a second paragraph on this critical point, “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-defense, in which the very survival of a State would be at stake.”(7)
Thus, the Court found the threat or use of nuclear weapons to be “generally” illegal, but could not conclude one way or another whether the use in “an extreme circumstance of self-defense, in which the very survival of a State was at stake” would be legal or illegal. In his declaration appended to the Court’s opinion, President Bedjaoui stated, “I cannot sufficiently emphasize the fact that the Court’s inability to go beyond this statement of the situation can in no manner be interpreted to meanthat it is leaving the door ajar to recognition of the legality of the threat or use of nuclear weapons.”(8)
President Bedjaoui also referred to nuclear weapons as “the ultimate evil” and pointed out their destabilizing effect on international humanitarian law. “Nuclear weapons,” he wrote, “can be expected — in the present state of scientific development at least — to cause indiscriminate victims among combatants and non-combatants alike, as well as unnecessary suffering among both categories. The very nature of this blind weapon therefore has a destabilizing effect on humanitarian law which regulates discernment in the type of weapon used. 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, not to mention their long-term effects of damage to the human environment, in respect to which the right to life can be exercised.”(9) (Emphasis in original.)
The seven judges voting against this portion of the opinion included the judges from the United States, United Kingdom and France, each of whom argued for legality under certain circumstances, as might have beenexpected. It also, however, included the three judges who argued that the threat or use of nuclear weapons would be illegal under any circumstance.
The latter three judges were Christopher Weeramantry of Sri Lanka, MohamedShahabuddeen of Guyana, and Abdul Koroma of Sierra Leone. Thus, there were ten judges who supported the opinion or would have gone further anddeclared any threat or use illegal.
I highly recommend studying carefully the dissenting opinions of these three judges, and particularly the dissenting opinion of Judge Weeramantry, who is now vice-president of the Court. Judge Weeramantry’s dissent is a scholarly text that looks at the issue of the legality of nuclear weapons in considerable detail. I would hope that one day this dissenting opinion, along with those of Judges Shahabuddeen and Koroma, will provide the intellectual and legal basis for a finding by the Court that any threat or use of nuclear weapons is illegal and a crime under international law.
The basis for Judge Weeramantry’s dissent was that the word “generally” should not have been placed in the first sentence. “The word is too uncertain in content for use in an Advisory Opinion,” he wrote, “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.”(10)
Perhaps the most important part of the Court’s opinion, on which there was unanimous agreement, was its final statement, in which it interpreted Article VI of the Non-Proliferation Treaty: “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.”(11) This statement of the Court found that it was not only necessary to pursue negotiations in good faith on nuclear disarmament, but that these negotiations must also be brought to a conclusion and that they must lead to nuclear disarmament “in all its aspects.”
Following the ICJ opinion, the General Assembly in its 51st session expressed its appreciation to the Court, emphasized the unanimous conclusion of the Court regarding the obligation to complete negotiations on nuclear disarmament, and called for “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.”(12) (See TFF Features, Three Nuclear Documents)
An International Criminal Court
A permanent International Criminal Court (ICC) has been a longstanding dream of the international community. This Court would add the element of criminal jurisdiction to capabilities of the international legal system. Right now there is no such jurisdiction, except as it has been exercised by individual states or as it has been established on an ad hoc basis in international tribunals for the former Yugoslavia and Rwanda. These ad hoc tribunals were created by the Security Council, and have yet to prove their worth in terms of holding accountable high-level perpetrators of the most egregious crimes under international law.
The purpose of an ICC is to hold accountable all individuals, regardless of their rank or nationality, who commit acts constituting crimes under international law. Great progress has been made toward fulfilling the dream of a permanent International Criminal Court. In 1994 the Sixth Committee (Legal Committee) of the General Assembly adopted a draft statute for an International Criminal Court, which has been the basis for developing a statute that nations can adopt in the form of a treaty.(13)
In December 1996 the General Assembly of the United Nations called for a diplomatic conference of plenipotentiaries to meet in 1998 “with a view to finalizing and adopting a convention on the establishment of an international criminal court.”(14) This conference is set to meet in June 1998 in Italy, which has offered to host the conference. Nine weeks of preparatory committee meetings are scheduled before the diplomatic conference.
The first two weeks of preparatory committee meetings took place in February 1997 at the United Nations headquarters in New York. At this PrepCom the delegates worked on the list of crimes and their definitions and elements, and on the principles of criminal law and penalties. It was clear at this PrepCom that much remains to be done prior to the diplomatic conference. In the area of crimes, it is still not clear which crimes will be included, but there seems to be growing consensus that at the outset only the most serious international crimes should be included. There seems to be general agreement that genocide, crimes against humanity, and war crimes should be included. The crime of aggression has less support due to differences in opinion as to what constitutes aggression under international law. There is also considerable uncertainty about including treaty-based crimes related to terrorism, crimes against United Nations personnel, and drug-related crimes.
In reviewing the results of the February meeting of the PrepCom on the definition of crimes, it appears that there is general agreement on the definition of the crime of genocide (which comes largely from the 1948 Genocide Convention) and a high degree of agreement on crimes against humanity. There is still much disagreement, however, on what constitutes war crimes and, as already mentioned, the crime of aggression is subject to considerable disagreement.
Nuclear Weapons and the International Criminal Court
I would like to focus here on how the threat or use of nuclear weapons is likely to be viewed in the statute establishing an International Criminal Court. Bearing in mind the ambiguity in the advisory opinion of the ICJ caused by its inclusion of the word “generally,” it may be difficult for the ICC to include the threat or use of nuclear weapons among its list of war crimes. Of course, there is also the practical element involved that the nuclear weapons states would strongly resist inclusion of threat or use of nuclear weapons as a crime punishable by the ICC. Nonetheless, following the February PrepCom, the ICC draft consolidated text does include a bracketed reference to “[using or the threat of use of nuclearweapons]” in a list that also includes “using asphyxiating, poisonous or other gases… using bullets which expand or flatten easily in the human body… using bacteriological (biological) agents or toxins for hostilepurposes or in armed conflict…[and] using chemical weapons….” (15)
The proposal to include the threat or use of nuclear weapons as a war crime was put forward by Syria and is currently in brackets in the draft text, meaning that there has not been general agreement on its inclusion. It undoubtedly will not survive to the final draft of the ICC statute. This reflects the practical politics involved in the establishment of the Court. For the Court to garner the necessary support to be established it must include only those crimes (and definitions of crimes) that can be agreed upon by consensus. The nuclear weapons states undoubtedly will not be prepared to endorse an ICC that would hold their leaders accountable for the threat or use of nuclear weapons in all circumstances. Thus, the statute establishing the ICC, like nearly all broad multinational treaties, will result in the lowest common denominator of agreement, and explicit criminal accountability for the threat or use of nuclear weapons will almost certainly not make the cut.
On the other hand, if the final draft of the statute establishing an ICC includes in its definition of war crimes a prohibition on threatening or using weapons that are indiscriminate in nature or cause unnecessary suffering, that should suffice to cover any threat or use of nuclear weapons. The definition of war crimes in the draft consolidated text currently includes in brackets, “[employing weapons, projectiles and material and methods of warfare of such a nature as to cause superfluous injury or unnecessary suffering [or inherently indiscriminate]…]” or “[employing arms, projectiles, or material calculated to cause unnecessary suffering….]”(16)
While I would prefer to see nuclear weapons listed among the types of weapons that, if used, would constitute a crime under the statute of the ICC, I think that it is more important at the outset to establish the Court and get it functioning. The statute must contain an amendment process that will allow additional crimes to be added in the future and for the definitions of crimes also to be subject to alteration in the future.
Use of nuclear weapons against a civilian population could also be subject to the Court’s jurisdiction as a crime of genocide or crime against humanity. In the case of genocide, it would have to be shown that the act was committed “with intent to destroy, in whole or in part, a national ethnical, racial or religious group, as such….”(17) In the case of crimes against humanity, it would be necessary to show that the act, in this case murder, was part of a widespread and systematic plan of attack against a population: “[as part of a widespread [and] [or] systematic commission of such acts against any population] or [as part of a widespread [and] [or] systematic attack against any [civilian] population] [committed on a massive scale] [in armed conflict] [on political, philosophical, racial, ethnic or religious grounds or any other arbitrarily defined grounds].”(18) There remain many brackets in this portion of the definition of crimes against humanity.
Conclusion
July 8, 1997 marks the first anniversary of the International Court of Justice advisory opinion on the legality of the threat or use of nuclear weapons. The opinion rendered was not perfect, but it was a very significant opinion nonetheless.(19) In this opinion, the ICJ asserted its authority to rule on this issue, despite opposition to its doing so from the nuclear weapons states and their allies. The Court also severely restricted the possible circumstances in which the threat or use of a nuclear weapon would be legal under international law. The Court made a clear and unanimous statement that any threat or use of nuclear weapons would be subject to the rules of international humanitarian law. The Court also ruled that an obligation exists to complete negotiations on nuclear disarmament in all its aspects.
On this important anniversary, the leaders of NATO will be meeting in Madrid to make a decision on the eastward expansion of NATO. Such expansion is a policy that the Russians strongly oppose, and one that could halt and even reverse the progress that has been made toward nuclear disarmament. Thus, NATO expansion flies in the face of the ICJ opinion, which called upon the nuclear weapons states to complete good faith negotiations on nuclear disarmament “in all its aspects.” Furthermore, at this point in time, the eastward expansion of NATO seems a far less important goal than ridding the world of nuclear weapons. George Kennan, a significant figure in United States foreign policy for over half a century, has called NATO expansion “the most fateful error in American policy in the entire post-cold-war era.”(20)
The permanent International Criminal Court, which hopefully will come into existence by means of an international treaty before the end of the century, promises to bring those who commit crimes under international law before the bar of justice. This Court will likely include among its crimes genocide, crimes against humanity and war crimes. It is unlikely that the threat or use of nuclear weapons will be explicitly listed among the war crimes. Nonetheless, the use of a nuclear weapon or many nuclear weapons could also fall under the definition of the crime of genocide, crimes against humanity, or a war crime by virtue of being a weapon that fails to distinguish between combatants and non-combatants and causes unnecessary suffering.
Of course, it is a far less important goal to hold individuals accountable for using nuclear weapons than to prevent them from doing so. The best way to assure that nuclear weapons will not be used in the future is to proceed rapidly toward their complete elimination as called for in the ICJ’s advisory opinion. Once states enter into a Nuclear Weapons Convention that prohibits the development, production, testing, deployment, stockpiling, transfer, threat or use of these weapons and sets forth a plan for their elimination, it should be far easier to gain consensus that the threat or use of nuclear weapons would constitute a crime under international law. When this consensus is reached, it will be a relatively short step to gain consensus on the need to hold individuals accountable for the threat or use of nuclear weapons. Thus, it is important to achieve a Nuclear Weapons Convention as called for by the United Nations General Assembly. This is also the goal of the Abolition 2000 Global Network of citizen action groups around the world that are committed to the elimination of all nuclear weapons within a timebound framework.
Postscript: Sunflowers versus Missiles
After the breakup of the former Soviet Union, Ukraine became the world’s third largest nuclear weapons state. However, Ukraine agreed to transfer all of its nuclear warheads to Russia for dismantlement, as did Kazakhstan and Belarus. In June 1996, Ukraine completed the transfer of its last nuclear warheads to Russia. To celebrate the occasion, the Defense Ministers of the Ukraine, Russia and the United States met at a former missile base in Ukraine, and planted sunflowers and scattered sunflower seeds. Former U.S. Secretary of Defense William Perry said, “Sunflowers instead of missiles in the soil would insure peace for future generations.” (21)
It was a highly unusual ceremony to find defense ministers planting sunflowers and scattering sunflower seeds, but an appropriate one if you stop to think about the differences between sunflowers and nuclear armed missiles. Sunflowers are natural, beautiful, and provide nutrition, while nuclear armed missiles are a costly technological nightmare that threaten life on Earth.
Making a choice between sunflowers and nuclear armed missiles should not be a difficult one for the people of our planet. Most people on Earth would clearly choose sunflowers and all they represent over nuclear weapons. At the present there are only a small group of states that seek to base their security on nuclear weapons, which means basing their security on threatening civilization, the human species, most other forms of life, and the future of our planet. Pressure must be brought to bear on these states to change their policies, and commit themselves to a nuclear weapons free future. The opinion of the International Court of Justice on the threat or use of nuclear weapons represents one means of bringing such pressure to bear on the nuclear weapons states, but the opinion by itself will not be sufficient.
The nuclear weapons states act as though they should have special “privileges” in the international system which are not available to other states. This creates a very unstable situation, in which other states, recognizing the special status of nuclear weapons states, may desire to achieve this status themselves. This situation could lead to a breakdown in the Non-Proliferation Treaty, which would make the world more dangerous for everyone including the nuclear weapons states. Ultimately, we will have a world with many nuclear weapons states, or a world with no nuclear weapons states. Again, the choice is clear.
To achieve a world free of nuclear weapons will require a great peoples movement throughout the world. The sunflower has become the symbol of this worldwide effort for the future of humanity and our planet. If you would like to be part of this effort, contact a citizens action group working for Abolition 2000. Information is available on the worldwide web site of the Nuclear Age Peace Foundation at http://www.napf.org.
ENDNOTES
1.Treaty on the Non-Proliferation of Nuclear Weapons, 729 UNTS 161. Article VI states: “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 control.”
2. “The Hague Declaration of the International Association of Lawyers Against Nuclear Arms,” adopted by the IALANA General Assembly on September 24, 1989, in The World Court Project on Nuclear Weapons and International Law, Northampton, MA: Aletheia Press, 1993, pp. 19-22.
3. The International Court of Justice is described in Chapter XIV of the United Nations Charter. Its advisory jurisdiction is described in Article 96 of the Charter and in Chapter IV (articles 65-68) of the Statute of the International Court of Justice.
4. “Legality of the Use by a State of Nuclear Weapons in Armed Conflict,” International Court of Justice, 8 July 1996.
5. “Advisory opinion of the International Court of Justice on the legality of the threat or use of nuclear weapons,” UNGA A/51/218, 15 October 1996.
6. Ibid., 36.
7. Ibid., 37.
8. Ibid., 40.
9. Ibid., 42.
10. Ibid., 171.
11. Ibid., 37.
12. UNGA Res. 51/45 M, 10 December 1996.
13. Official Records of the General Assembly, 49th Session, Supplement No. 10 (A/49/10), 23-161.
14. UNGA Res. A/RES/51/207, 17 December 1996.
15. “Decisions taken by the Preparatory Committee at its session held from 11 to 21 February 1997,” A/AC.249/1997/L.5, 12 March 1997.
16. Ibid., 10.
17. Ibid., 3.
18. Ibid., 4.
19. See “Implications of the Advisory Opinion by the International Court of Justice on the Legal Status of Nuclear Weapons,” a Discussion Paper by the World Court Project. Copies are available from the Lawyers Committee on Nuclear Policy Inc., 666 Broadway, Suite 625, New York, NY 10012.
20. Kennan, George, “A Fateful Error, Expanding NATO would Be a Rebuff to Russian Democracy,” New York Times, February 5, 1997.
21. “Sunflower Seeds Sown at Ukraine Missile Site,” New York Times International, June 5, 1996.
