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Date: Thu, 19 Sep 1996 18:47:01 CDT
Sender: Activists Mailing List <ACTIV-L@MIZZOU1.MISSOURI.EDU>
From: Elias Davidsson <edavid@itn.is>
Subject: World Court ruling on nuclear weapons: Analysis

World Court ruling on nuclear weapons: Analysis

PM on the World Court's Advisory Opinion July 8, 1996

From International Peace Bureau. 19 September, 1996

In a historic ruling on July 8, 1996, the International Court of Justice in the Hague declared nuclear weapons illegal and that the nuclear weapons states have a legal obligation to get rid of them. The Court clarified the legal position in response to a request for legal advise from the UN General Assembly in Dec. 1994. The nuclear weapons powers lost on all major points, much more severely than is generally understood. Some early media reports of a 7-7 deadlock, decided by the president's casting vote, failed to take into account that three of the dissenting judges went further than the majority and declared nuclear weapons illegal without reservation.

Thus the Court rejected the exception claimed by nuclear weapons states and held that humanitarian law protecting civilians and neutral states "apply to all forms of warfare and to all kinds of weapons, those of the past, those of the present and those of the future". Further, "in view of the unique characteristics of nuclear weapons, their destructive capacity and capacity to cause untold human suffering and damage for generations to come, their use in fact seems scarcely reconcilable with respect for the law applicable to armed conflict." Therefore, the Court concluded, "the threat or use of nuclear weapons would generally be contrary to the rules of international law."

The Court itself was unable to imagine any situation where use could be legal. It noted that the nuclear weapons states had failed to indicate "the precise circumstances" where limited use of low-yield tactical nuclear weapons could be justified as being within the strict legal limitations that always apply. Had this been a contested case one must assume that this failure had been to their detriment. Here, in advisory jurisdiction, it led seven of the judges to favour the nuclear states by saying that they could not "conclude definitely" on use or threat "in an extreme circumstance of self-defence, in which the very survival of a State would be at stake". One should note that none of the judges said that such use would be legal, and all 14 unanimously ruled taht any self-defence action must be within the strict limitations which nuclear weapons scarcely can fulfill. The self-defence formulation won by the casting vote of the President of the Court. In his separate opinion he stressed that it could "not in any way be interpreted as a door left half-open to acceptance of nuclear weapons use or threat as legal".

Thus, it is now clear that, even giving the interpretation most favorable to the nuclear weapons states, their past and present strategies and targeting practices represent gross violations of international law. This applies to modern counter-proliferation doctrines involving first use of miniature warheads against command bunkers adn silos in so-called -"rogue" states, flexible response, and - not least - the Mutually Assured Destruction and Massive Retaliation of the past, which were nothing less than mutual suicide pacts on account of their planet-wide radiation and nuclear winter effects. Such insane scenarios could thus in no way qualify as possibly justifiable self-defense. A repetition of the bombings of Hiroshima and Nagasaky (1945), or bringing nukes to the Falkland or the Gulf Wars (1983 and 1991), or recent US threats of use against Libya's chemical weapons factories (1996), would now be manifestly illegal. None of these were situations where the survival of the United States or the United Kingdom were at risk.

"Merely advisory"?

It is misleading to claim that this a "non-binding", only "advisory" opinion. The reality is that, in response to a request from the UN General Assembly, the world's highest judicial body has rendered the most authoritative statement that can be given in questions of internationa law. The Court's job was to advise the UN as to what the law is. UN members have a duty to obey international law and order. The ICJ ruling will carry great weight in international disarmament negotiations and in numerous other situations.

"A state can do no wrong"

...as such. War crimes and crimes against humanity are realized by persons acting for the states" - said the Nuremberg Tribunal in 1945. This is why it found it necessary to sentence individuals and hold them liable even if they acted within orders or the laws of their state. This is a key point in the implementation of the Court's decision.

Some commentators have pointed out that the World Court has stated the law, but has no means of enforcing it. They fail to understand how important the legal clarification is. Steps to pay respect will have to be taken by anyone involved who wish to avoid Nuremberg liabilitiy for war crimes. In the nuclear weapons states AND THEIR ALLIES (emphasis added ED) military personnel AS WELL AS POLITICAL MASTERS (emphasis added ED) will now be obliged to rethink nuclear matters in view of their superior obligation to obey international law.

A legal duty to get rid of the weapons

The Court also approved the view of the anti-nuclear forces when the judges rejected the nuclear weapons states' attitude that "we are entitled to keep nuclear weapons". They UNANIMOUSLY emphasized the legal obligation the nuclear five have to 177 other states under the Nuclear Non-Proliferation Treaty "to negotiate in good faith and to achieve a precise result - nuclear disarmament in all its aspects".

This latter clarification is most helpful in the international organisations of doctors and lawyers against nuclear arms and the International Peace Bureau who together initiated the court action - and who already a year ago embarked, along with 600 other NGOs and governments, on a follow-up project. Abolition 2000. The aim is to secure an early start of negotiations on a treaty for the timebound elimination of all nuclear weapons.

The Hague/Oslo, July 29, 1996
Fredrik S. Heffermehl, IPB Vice-President
Lawyer (Oslo University, Master degree New York University)