Taking Nuclear Weapons to Court
by Kate Dewes, in Peace is Possible,
edited by Fredrik S. Heffermehl, International Peace Bureau, Geneva, Switzerland, 2000.
"The very fact of asking for an advisory opinion on the legality of a particularcategory of arms amounts to questioning the inalienable right of any State or group of States to remain sovereign... Such an approach is a blatant violation of the UN Charter. It goes against law. It goes against reason..." This over-reaction by France's Ambassador in the United Nations General Assembly in November 1994 showed that the World Court Project, a citizens' initiative launched in 1992, was achieving its aim: using the law and public opinion to make nuclear disarmament unstoppable.
Ever since the bombings of Hiroshima and Nagasaki the Western nuclear weapon states - the United States (US), United Kingdom (UK) and France - had succeeded in blocking all previous attempts since the bombings of Hiroshima and Nagasaki to use the laws of war to ban nuclear weapons. Nevertheless, despite intense intimidation from these states the UN adopted a resolution in December 1994 asking the International Court of Justice - also known as the World Court: "Is the threat or use of nuclear weapons in any circumstance permitted under international law?" (A UN veteran described it as "the most exciting night at the UN in thirty years!")
Within two years, in July 1996, the Court confirmed that the threat or use of nuclear weapons was generally illegal, strongly condemning them and advising unanimously that they must conform to international humanitarian law. Although there are treaties outlawing chemical and biological weapons of mass destruction, there is no such specific treaty to ban nuclear weapons – yet only nuclear weapons can destroy all life on Earth. How then could they be legal?
At times, some courageous citizens have tried to use domestic and international law to oppose nuclear weapons. However, legal confrontations by states with the superpowers over their nuclear policies have been rare. The first example was in 1973 when the Australian and Aotearoa/New Zealand (NZ) governments took France to the World Court to challenge the legality of its nuclear testing in the South Pacific. Another prominent example was in 1984, when New Zealanders elected a government committed to passing legislation banning both nuclear weapons and power from its territory. The US and UK immediately threatened harsh sanctions to try to stem further rebellion from other allies. In 1985, the French government ordered the bombing of the anti-nuclear flagship 'Rainbow Warrior' in Auckland. The NZ government withstood this outrageous pressure, sustained by overwhelming public support; and a Nuclear Free Act became law in 1987.
The NZ peace movement responded by seeking ways of outlawing nuclear weapons worldwide. In 1987, Harold Evans, a retired District Court judge, who had become interested in international law after working with the NZ delegation at the 1946 Tokyo War Crimes Tribunal, wrote Open Letters to Australia, NZ and 71 other states challenging them to sponsor a UN resolution asking the World Court for an advisory opinion. Australia refused; but NZ, along with the Soviet Union, India and several other non-aligned states, showed initial interest.
However, in 1989, despite vigorous lobbying, the NZ government backed off. Officials warned against directly challenging the Western alliance: " It would not gain sufficient support to succeed during the Cold War; it would cost too much; and it would jeopardise disarmament negotiations. Even if a UN resolution was adopted, the Court would not dare to outlaw the nuclear policies of the five permanent Security Council members and their allies. If the Court decided that nuclear weapon threat and use were legal, it would be a major setback; if the Court condemned them as illegal, the nuclear weapon states would ignore it, and the Court's reputation and international law would be damaged."
In short, the NZ government found the risk too great.Undeterred, Evans and a few others travelled overseas, meeting anti-nuclear groups, diplomats and governments. By 1989, they had gained the support of some influential international citizen groups of which they were members, including the International Peace Bureau (IPB), the International Physicians for the Prevention of Nuclear War (IPPNW), and the newly-formed International Association of Lawyers Against Nuclear Arms (IALANA). In 1992, these organisations formed an unprecedented coalition, called the World Court Project, and co-sponsored its international launch in Geneva.
During 1991, with the Cold War over, initial support for the Project had already been secured from several leading members of the Non-Aligned Movement (NAM), a group of 110 governments. At the Geneva launch Zimbabwe's Foreign Minister announced his government's support as Chair of the NAM. At the same time, the doctors succeeded in introducing a resolution at the World Health Assembly requesting a World Court Advisory Opinion on the legality of the use of nuclear weapons.
Although the resolution was not adopted, these crucial breakthroughs inspired over 100 international citizen delegates to return home to mobilise public opinion and convince the majority of non-nuclear states to support it. They distributed an IALANA Legal Memorandum to diplomats and politicians in the UN and capitals, and used an IPB guide to the Project as a tool to raise public awareness. Some success was achieved with media coverage of speaking tours by leading activists. Supported began to collect individually signed Declarations of Public Conscience. These were new: unlike a petition, they had real meaning in international law. They used a clause from the 1907 Hague Convention which made the "dictates of the public conscience" count in the legal evaluation of new types of weapons in the future.
In October 1995, one of several 'firsts' occurred when the Court's Registrar welcomed an international citizen delegation which handed over nearly four million
Declarations in 40 different languages; 11,000 signatures from lawyers; and a sample of the 43 million Hiroshima and Nagasaki Appeal. A UK activist who collected over 70,000 Declarations reported that "they gave people a sense of hope.They felt they were playing an important role by going over the heads of government direct to the Court..."
In addition, over 700 citizen groups worldwide endorsed the Project. Prominent supporters included Mikhail Gorbachev, Archbishop Desmond Tutu, the Dalai Lama and other Nobel Laureates, Dr Helen Caldicott and many other politicians, judges, church and civic leaders. This public support bolstered diplomats and politicians in the leading governments as they courageously withstood intimidation from the nuclear weapon states, which correctly saw the Project as a serious challenge.
However, the doctors succeeded in generating enough support from governments to ensure that a revised resolution on the health and environmental effects of theuse of nuclear weapons to be adopted at the 1993 World Health Assembly. All thearguments raised earlier by NZ officials reappeared: but the doctors' lobbying team was able to refute them quickly, and gained the trust of Health Ministers - some of whom were IPPNW members.
From the moment the Non-Aligned Movement decided to introduce its more ambitious resolution on both the threat and use of nuclear weapons in the UN General Assembly later that year, the intimidation intensified. An ambassador commented: "The nuclear powers are scared shitless." Another described their reaction as "hysterical", as delegations from the Western nuclear weapon states and some of their allies travelled to capitals and threatened the leading states which dared to oppose them with loss of trade and aid. This showed how they feared the power of the law.
The Western nuclear weapon states succeeded in preventing a vote in 1993; but in 1994 the resolution was reintroduced and adopted. Support for the resolution and the preparation of legal submissions to the Court were coordinated in New York by the Lawyers' Committee on Nuclear Policy - the US affiliate of IALANA.
One factor contributing to this triumph was the Project's success by then in persuading 35 governments to make submissions to the Court on the World Health Assembly's question. Some states included evidence on the health effects of nuclear weapons provided by IPPNW. IALANA drafted comprehensive model legal submissions for both questions, which were also used by some supportive states and incorporated in their oral presentations. In all, 45 states took part, by far the largest number to ever participate in a World Court case. Over two-thirds argued for illegality, and only Germany and Italy testified orally in support of the Western nuclear trio and Russia (China took no part).
Many media and citizen supporters attended the Court’s public hearings in November 1995 in the magnificent Peace Palace in the Hague. A team from IALANA offered on-the-spot advice to help supportive government delegations.For the first time citizen witnesses addressed the Court and confronted the judges with the horrific situation of the victims. After strong public pressure, the Japanese government allowed the Mayors of Hiroshima and Nagasaki to testify. Their presentation included huge photographs of the bombings, and was accompanied by the muted sobs of the hibakusha (victims) present. Then a Marshallese woman described how after the US tests in 1954, women gave birth to "...'jellyfish' babies: these... are born with no bones in their bodies and with transparent skin. We can see their brains and hearts beating..." Dressed in white with a wreath of flowers in her hair, she held the Court spellbound.
On 8 July 1996, "Nuclear Judgment Day", the Project's supporters and the media again packed the Peace Palace for the verdict. In its 34-page main opinion, the Court unanimously held that the requirements of the laws of warfare apply to nuclear weapons, finding no legal justification for the threat, let alone use, of nuclear weapons. It also unanimously confirmed that a legal obligation exists to conclude negotiations leading to the complete elimination of nuclear weapons under strict international control.
The nuclear weapon states had done their utmost to stop the case from ever reaching the Court. They had failed. They now faced an outcome which outlawed the basis of their military strategy. They tried to ignore it, and responded to criticism by claiming that it required no change to their existing policies.
For such an historic event, media coverage in Western Europe and North America was suspiciously sparse, superficial and, at times, inaccurate. However, in Japan, Australia and NZ - whose governments had finally been forced to argue for illegality by strong public opinion coupled with outrage over renewed French tests - it was reported extensively. Even the conservative NZ Prime Minister - who until 1993 had opposed the initiative - hailed it as a "tremendous victory... a watershed decision...(which) vindicated the anti-nuclear crusade".
In Western nuclear and allied states, anti-nuclear activists used the opinion in high- profile, ingenious "civil obedience" campaigns to expose and force their governments into complying with the law and moving rapidly to ban and eliminate all nuclear weapons. This sparked some media interest and inspired other citizens around the world to take similar actions. The news was spread via the Internet and Citizen Forums. A team of experts from the peace movement drafted a model Nuclear Weapons Convention which has been published as a UN document. All that is now required is the will of the nuclear weapon states to comply with the legal obligation to begin negotiations. The Non-Aligned Movement and a new group of 'middle states' have recently sponsored UN resolutions supporting the Court's decision and calling for a negotiations to ban nuclear weapons.
The World Court decision was the result of a courageous civil society initiative, involving thousands of individuals and groups around the world too numerous to name, ranging from grassroots activists to judges, diplomats and political leaders. All were inspired to use this unique combination of the law and the public conscience finally to force the nuclear weapon states to argue that nuclear weapons were legal for them but not others.
The Project succeeded through close cooperation with a wide range of governments in achieving a major victory for nuclear disarmament. Those of us who had struggled together saw our vision fulfilled: of international law becoming a tool of the people, not just governments. However, only by developing further the partnerships with officials and politicians can "We, the peoples" ensure that the law, as now stated by the highest judicial authority in the world, will be respected - and nuclear weapons eliminated.