information about Fukushima published in English in Japanese media info publiée en anglais dans la presse japonaise
3 Août 2014
August 01, 2014
NUKE JUDGEMENT: Former ICJ president reveals 'nightmare' in 1996 landmark opinion on nuclear weapons
http://ajw.asahi.com/article/behind_news/politics/AJ201408010078
By FUMIHIKO YOSHIDA/ Editorial Writer
Editor's note: This is part of a four-part package of articles on the background of a landmark advisory opinion on nuclear weapons presented by the International Court of Justice in 1996.
***
A major turning point in the international movement to ban nuclear weapons because of their inhumane nature occurred in 1996, and it came down to the vote of one man, Mohammed Bedjaoui.
Bedjaoui, 84, of Algeria was president of an International Court of Justice panel that issued an advisory opinion stating that “the threat or use of nuclear weapons would generally be contrary to the rules of international law.”
Although the article said nuclear weapons were “generally” a violation of international law, it included wording that the ICJ “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.”
In an interview with The Asahi Shimbun, Bedjaoui revealed the difficult behind-the-scenes discussions among the jurists before deciding on a key point of the opinion, which combined the two opposing elements.
The court was split seven to seven on whether nuclear weapons were illegal. Under voting rules, the casting vote of the president is used in the case of a tie.
Bedjaoui explained that two main pillars of humanitarian law were referred to in deciding that the use of nuclear weapons would constitute a violation of international law. One was the provision that weapons of any kind should not be used against civilians. The other was that soldiers should not suffer “unnecessary pain” from the weapons used against them.
But Bedjaoui also explained that international law provides the right to self-defense to all nations.
That contradiction between the two major principles was behind the two-sided nature of what has been called point 2-E of the conclusions in the advisory opinion.
As a way of overcoming that contradiction, the advisory opinion pointed to Article 6 of the Nuclear Nonproliferation Treaty and stated in point 2-F “there exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects.”
In explaining how that point was approved unanimously by the ICJ, Bedjaoui said there was a “double obligation” for NPT signatories under Article 6.
“It is not only necessary to negotiate in good faith, but also to reach total and permanent nuclear disarmament,” Bedjaoui said. “(The signatories) really have to negotiate to eliminate nuclear weapons. When those weapons are eliminated, there will not be any juridical contradictions left.”
He also explained his own internal turmoil concerning point 2-E since he favored stronger wording stating that nuclear weapons were in complete violation of international law.
“It was a nightmare,” Bedjaoui said. “I told myself I have to vote in favor of point E, not as Mohammed Bedjaoui, but as an international civil servant to the international community.”
He added that his true feelings on the issue were made clear in his appending declaration to the advisory opinion.
In that declaration, Bedjaoui wrote that “the Court’s inability to go beyond this statement of the situation can in no way be interpreted to mean that it is leaving the door ajar to recognition of the legality of the threat or use of nuclear weapons.”
He further wrote that “the use of nuclear weapons by a State in circumstances in which its survival is at stake risks in its turn endangering the survival of all mankind, precisely because of the inextricable link between terror and escalation in the use of such weapons. It would thus be quite foolhardy unhesitatingly to set the survival of a State above all other considerations, in particular above the survival of mankind itself.”
Bedjaoui’s strong feelings against nuclear weapons led to the drafting of point 2-F, which went beyond Article 6 of the NPT, which only states that signatories “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.”
Bedjaoui also revealed how the testimony before the ICJ by Hiroshima Mayor Takashi Hiraoka and Nagasaki Mayor Iccho Itoh influenced his own thinking about nuclear weapons.
“A judge of the ICJ is, after all, a human being who has political convictions,” Bedjaoui said. “In this eminently political matter, we have to express ourselves based not only on the law but also on our consciousness.”
NUKE JUDGEMENT/ Bedjaoui: 18 years later, ICJ opinion on eliminating nuclear weapons more important than ever
http://ajw.asahi.com/article/behind_news/politics/AJ201408010080
August 01, 2014
By FUMIHIKO YOSHIDA/ Editorial Writer
Editor's note: This is part of a four-part package of articles on the background of a landmark advisory opinion on nuclear weapons presented by the International Court of Justice in 1996.
***
Question: How did the International Court of Justice (ICJ) reach its advisory opinion about the illegality of the use of nuclear weapons?
Mohammed Bedjaoui: It was not an easy task for the ICJ. For that advisory opinion, the court had its longest deliberation in its history. The court compiled a colossal body of work in order to know whether there is an international law, one specific rule, one particular norm, one special principle, which allows or forbids the use of nuclear weapons by any state in circumstances in which the own survival of this state would be at stake.
I have to tell you that the judges have studied in detail every rule, every point of international law. For example, the genocide question, because if a nuclear weapon eliminates an entire population, can't we talk about genocide? Or, the environment question, because a nuclear weapon destroys everything, nature and all. The judges studied the entire questions, from all points of view, with seriousness and meticulousness.
Q: Could you summarize the crucial arguments in the court?
A: The court has first recognized that the law during the war, and, particularly, humanitarian law, applies for every form of war and every type of weapon. This law is built on two important pillars. The first is the prohibition of the use of any weapon which would inflict damage on the population. The soldiers have to make the difference between the soldiers and the civilians. The soldiers should be targeted only; the civilians should be protected. The second pillar is about the soldiers. It is strictly forbidden to use a weapon which could inflict unnecessary pain on the soldiers.
The court has noticed that nuclear weapons inflict indiscriminate damage, and target not only the soldiers but also civilians. And even beyond, because nuclear weapons can impact neutral and neighboring countries. The use of nuclear weapons would then be a violation of humanitarian law.
But Article 51 of the U.N. Charter has defined the customary principle of self-defense, as an inherent and natural right, that every state has. This right of self-defense is intangible in all circumstances, and moreover when a state is at stake. Every state would have the right to use any weapon to avoid its own destruction.
Let us suppose a state has nuclear weapons, and it is allowed to defend against military attack. Then, this state has the right to use nuclear weapons? If this state is about to disappear, to collapse, if the population of this state is in the middle of a crisis and may disappear, too, does this state have the right to do anything in order to survive? On the contrary, this state has to respect the juridical duty, instead of using nuclear weapons? That's the question.
Q: And how did you reach the final conclusion?
A: If you consider these two pillars in international law, one which prohibits the use of nuclear weapons and the other which looks like allowing it on the contrary, we have some conflict here. The international law put us in a conflictual situation. On one side, we have a respectable principle, but on the other side, we also have equally respectable principles.
The court has noted that there is this kind of tension between humanitarian law, which would prohibit the use of nuclear weapons because of their indiscriminate effect, and the right of self-defense which would be allowed, in some extreme cases, in order to let a state survive. These two points would be in contradiction, in some frontal conflict. Consequently, as a sort of compromise, we had concluded as Point E in the advisory opinion.
The wording of Point E is as follows:
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 facts 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.
Q: The U.N. General Assembly did not request an ICJ advisory opinion about Article 6 of the NPT (Nuclear Nonproliferation Treaty). Nevertheless, the advisory opinion emphasized the obligation in Article 6 on nuclear disarmament. Why did it?
A: As I described, there is tension between humanitarian law and the right of self-defense. Then, what are we supposed to do? The ICJ said that the only way to avoid this kind of situation, almost a Cornelian dilemma, a very difficult situation, is to remove nuclear weapons, the reason for the conflict. Therefore, let's see Article 6 of the NPT, and let's say we really have to negotiate, in order to conclude some treaty, to eliminate nuclear weapons. When those weapons are eliminated there will not be any conflict, any juridical contradiction, left.
The obligation defined in Article 6 of the NPT is, in fact, a double obligation. It is not only necessary to negotiate in good faith, but also to reach a precise result, which has been defined as total and permanent nuclear disarmament. That is what the ICJ said in Point F.
Therefore, the wording of Point F is written as follows:
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.
Q: Was there a lot of discussion about Point F, or everyone agreed to it quickly?
A: We had discussions about every point. But Point F was quickly approved unanimously. Yes, quickly. It is after this unanimous vote that in the juridical circles, in the international circles, some voices have risen, saying that "the ICJ has gone too far," like Pakistan, India or Israel. We answered then that we did not go too far.
Q: In the NPT, it is written that states need to negotiate in good faith, but there is nothing clearly about the need of bringing some result.
A: The obligation of bringing results is an imperative one, because it is from customary law. In law, we're talking about “obligation of ways," and “obligation of results.” The first means that the state has to use every means it can without guaranteeing any results. On the contrary, the second is something clearer, more radical. The state has to use any means and ways, but it has to reach some result. Those two obligations are well-known in international law. And they have already existed.
Q: I presume that Point F is very important and a new attempt.
A: That's something the ICJ can be proud of itself, having been able to reach that unanimous vote, at such a high level of responsibility. The court has interpreted Article 6 as conditioning a strict behavior which should lead to an obligation of results.
This obligation of results, that is to say reaching to a complete and permanent nuclear disarmament, is an imperious obligation. We can do nothing but agree to the urgent need for nuclear weapon states to intensify their negotiations in efforts for nuclear disarmament. The fact of concluding the Comprehensive Nuclear Test Ban Treaty has been considered as a real token of good faith in that matter. We have to be glad about it, but we have also to consider it like a necessary step toward nuclear disarmament. We should not forget that the conclusion of this treaty is still an insufficient measure, if that's not followed by another treaty to denuclearize nuclear weapon states with a certain schedule.
Let me say a few words about the NPT, which was signed in 1968. That is, first of all, an unequal treaty which does not set every state on an equal footing, even if every state is equally sovereign. This treaty imposed on states to give up their right to legitimate defense by nuclear weapons, while five members of the “nuclear club” keep having this right. To avoid dangerous nuclear proliferation, this treaty prohibits most of the states from possessing nuclear weapons, but made “nuclear club” members temporally exceptional.
The very important cause of the NPT is to avoid nuclear proliferation. So many states accepted such an inequality to avoid nuclear proliferation. However, we have to think of this treaty as a temporary tool. The embedded purpose of the NPT is total nuclear disarmament, and it should become reality as soon as possible, in order to take away this unfair treaty. It should have been temporary. But the treaty of 1968 is still here and in effect ... even 46 years later.
Q: About Article 6 of the NPT, did you think that nuclear weapons have to be eliminated?
A: Absolutely. I'm against the usage of, but also against the possession of nuclear weapons. It means that I'm in favor of the complete elimination of nuclear weapons, because it's like a crime against humanity.
Q: There was an unanimous vote for Point F. Does it mean that nobody expressed any objection?
A: No, it didn't take much time, and my colleagues were glad to end the text with this 6th article, very important for humanity. That did not take much time, and I am glad and proud about that. The ICJ felt it would be important to send such a message to the whole world.
Q: For Point E, 14 judges were split into two camps. It was a 7-7 vote. Were you worried about the possibility that more judges could be against than judges in favor?
A: I did know that we were divided. Not because I knew that there was at least five judges belonging to the Nuclear Weapon States, that was clear. But, still, they did not even vote together for the same side. The Chinese and Russian judges have voted differently from the French, the American and the British ones.
I have seen that we might have little margin to act, to manage. But, I did not know what to do to get out this tight situation until we had to vote.
Q: You have been a nuclear abolitionist. Then, why did you, as president, cast your vote to save the advisory opinion?
A: I have to tell the truth here, and to say that I was not totally glad to foresee the decision being adopted because of my casting a vote. It was a nightmare. Why? Because I was, and I still am, personally against, not only the use of nuclear weapons, but also the ownership of them, by any state. And I made myself clear in my declaration annex to the advisory opinion.
I took time to prepare. Generally, usually, the president of the court presides over a drafting committee elected for each case among the majority and composed of three judges. I had seen that I could not impose completely my own opinion for the elimination of nuclear weapons. It was the problem of self-defense. Then we had prepared some answers. Subsequently, Point E became the crucial point.
Q: What was your final thoughts at voting?
A: I had to think about it. If I had voted against because I was not completely satisfied by the wording of Point E, what would be the consequences?
The wording said, as I believed, as I strongly believed, that humanitarian law does not allow a state to use nuclear weapons. But it is “generally.” I had to suppress this word. It was difficult because “maybe in the future,” taking into account scientific and technological progress, some states could discover clean nuclear weapons, which can distinguish between civilians and soldiers. And it was added consequently the word “generally.”
I was not completely happy, But, without Point E, the advisory opinion would have been nothing. This is the most important paragraph. On the day of voting, I had seen my colleagues. This judge was against; this one was in favor, etc. ...
Q: Then, your turn. ...
A: I told myself, I have to vote in favor of Point E, not as Mohammed Bedjaoui, not as a judge, but as an international civil servant to the international community, to safeguard the reputation of the court, to serve international law. And I had the possibility to make a declaration in which I could explain more completely, more frankly, that I'm against nuclear weapons.
Q: If you were not the president, would you have voted against it?
A: I think so. But it was although. ... Yes, I would have voted against. Because of the adverb “generally”
Q: You said you didn't agree with the wording, with the adverb “generally.” Was there any problem with the legitimate defense?
A: In fact, we all agreed to say that legitimate defense exists. We were all able to agree to that. However, you will not be able to destroy humanity just to save one state. Saving one country is one thing, but destroying everything else is another. Let's be honest here, using a nuclear weapon will lead to the destruction of humanity.
Have you the right to destroy everything just to save one part of it? It would be absurd.
Q: Without Point F, would the whole text have been a failure?
A: I think so because Article F is the operational part, the compulsory part. The part with which we open the way for the General Assembly of the U.N. to act properly. Without that. ... it would have been different.
Without Point E, the whole advisory opinion would have been null and void. Without Point F, that would have been the same. Yes, we could not stop with Point E, because that would have been the same as sending an uncertain message of the court. That would not have been a proper way to conclude an advisory opinion. We had to show what we wanted to be accomplished. Having given our important recommendation of Point F, we have shown to the General Assembly the way to act, and then we have facilitated its mission. It is the purpose of this advisory opinion.
Q: Even without Point F, as president, could you agree to Point E?
A: In fact, no. Point E and Point F are in equilibrium. As for Point F, this point could open horizons, and did open us new horizons. I think it was the best advisory opinion published by the ICJ.
Q: The mayors of Hiroshima and Nagasaki came to the court and testified about the inhumanity of nuclear weapons. What did you think of their statements? Was there something which affected your thoughts?
A: It has just reinforced considerably my feeling about the fact we needed to do everything we could do. As president of the ICJ, I listened to the mayors of Nagasaki and Hiroshima, that's an imperishable memory. The two of them have been extremely moving, and they showed us very well that nuclear weapons are the weapons of evil. They told us about the inexpressible suffering of their populations.
When I was president of the ICJ, when this question had been raised, the court had personally received 3 million letters, documents and various things from the entire world, begging us to get rid of these weapons. I have appointed someone in the court to deal with all the things we received, and we put them in a special room inside the Peace Palace (that houses the ICJ). It was incredible. This advisory opinion was so important, because global opinion showed strong interest.
Q: A judge is a specialist of law, so he or she only moves and decides in following laws and rules. Is it possible for a judge to be influenced by the testimonies from Hiroshima and Nagasaki?
A: Yes, you're right about your definition of a judge. But an international judge, a judge of the ICJ, is, after all, a human being like everyone else. He has perfect mastery of international law, he must be, as a judge, working in a perfect spirit of independence.
That is perfectly right but he is also a human being, a man who has political convictions, and these convictions are something very personal which cannot be excluded in his judgments. He makes his judgment from the law, not from his personal feelings. But in this case, in this eminently political matter, we have to express ourselves, our opinion, based not only on the laws, but also on our consciousness, too.
Q: There was speculation that the ICJ might avoid delivering its advisory opinion.
A: In fact, everyone was probably expecting that we, the judges, would avoid the question or use doublespeak. But, I have to say that it is not what the ICJ is used to doing. Each one of its advisory opinions had really great importance. And as for its advisory opinions, which are just advice, just recommendations, they became more important than its judgments which are constraining. Because these advisory opinions are based on the law, on international law, and they enlighten the way to follow in order to stay in the legality. The ICJ published a lot of advisory opinions, nearly 30 since the court has been established.
In 1996, that was the 50th anniversary of the creation of the ICJ. And the court left a mark for this special year, in delivering this advisory opinion, an extremely important one. It was not for the 50th anniversary, but we did it with this kind of background. The U.N. General Assembly asked us to study that question as a matter of urgency. There was an emergency factor.
We already had our daily work. All the questions we were working on there, we urged ourselves to finish a great part of them, and we tried to give an answer to the U.N. General Assembly as soon as possible, as quickly as possible.
Q: How has the world accepted the advisory opinion?
A: Eighteen years later, we can see that the advisory opinion has now taken on more importance than ever, and its conclusion about putting pressure on every state around the table to reach a permanent and total nuclear disarmament is a very wise solution, and a necessary one.
Throughout these years, we have seen a huge dispute in the world about the interpretation of this 6th article. President Barack Obama introduced a halt to all the conservative politics introduced during the G.W. Bush administration, and aroused great hopes again. The Prague speech by President Obama was a new dawn for the world. Although paths to “the world without nuclear weapons” are not easy at all, his Prague speech made the ICJ's advisory opinion more actual than ever.
Q: In April, the Marshall Islands sued the nine countries with nuclear weapons at the ICJ, arguing they have violated their legal obligation to disarm. The legal appeal by the Marshall Islands is based on Point F of the advisory opinion.
A: This is a matter which is in the hands of the judges of the ICJ. I forbid myself therefore to say anything about it. But everyone knows that the court cannot ignore or forget one of its precedent decisions, like the one of July 1996.
Q: Tell me some historical background on nuclear disarmament and the U.N.?
A: The historical context was very important. We have to go back to 1946, and already then, after the war was over, six months after Hiroshima and Nagasaki, the U.N. created a resolution, the first resolution by the General Assembly, on Jan. 24, 1946. It was about the atomic bomb, and it says that we must create some commission in the U.N. to find the ways and the means to eliminate nuclear weapons.
Unfortunately, from 1947, the Cold War began, and this factor prevented efforts to get rid of nuclear weapons. However, the General Assembly adopted on Nov. 24, 1961, a very important resolution which sought the prohibition of any use of nuclear weapons. This resolution is extremely important, because it stipulates the condemnation of nuclear weapons, and it says that any state, which uses this weapon, perpetrates a crime against humanity and civilization.
But, as you already know, the General Assembly is suffering from a lack of authority, and is totally powerless. It's the parliament of the world but it can't take any resolution with compulsory significance. The General Assembly is different from the Security Council.
From this point of view, the General Assembly felt its lack of authority, and getting some frustration, especially on the matter of nuclear disarmament. Even conventional weapons disarmament was always discussed outside the U.N., between the Great Powers. The General Assembly, when it felt its own frustration, asked for an extraordinary session of the U.N. in 1978 on disarmament. And in 1982, four years later, another new extraordinary session, about the same subject, was held.
To be pitied, everything led to bitter failure. Why is that? Because the Great Powers, the Super Great Powers, were always negotiating among themselves, or didn't even negotiate at all.
Q: And then, fortunately, the Cold War was over.
A: Yes, an important event occurred. In 1989, the Berlin Wall fell, the Soviet Union collapsed to pieces, Russia gave up the communism of those times, and a new chance for international peace followed the Cold War. Things were about to change.
The General Assembly decided to take up again the matter of the total elimination of nuclear weapons. In order to get more authority and more power, the General Assembly asked the ICJ for some enlightenment about the juridical statute of these weapon. To move forward, even against the will of the states which already have these weapons. The General Assembly asked, therefore, in December 1995 for an advisory opinion. And I have to say that, when the judges of the ICJ, when they gather around some contentious matter, they discuss it a lot, examine every point of the international laws, share notes ... and the legal discourses.
Usually, negotiations take three or four days, maybe one week for a banal matter. In this particular case, it took six months from January 1996 to July 1996 because the subject was really very important.
Q: Any concluding comments?
A: The nuclear weapon is the product of the adventure, equally exciting and terrifying, of the scientific and technological progress that man has made.
Today, it looks like humanity is living on borrowed time because nuclear weapons have a specific nature and unique characteristics which give them a destructive power still unequaled. After this weapon had been used for the first time in Hiroshima and Nagasaki, Albert Camus said, "the civilization of the mechanics has reached its last degree of savagery."
The Atlantic Charter made the promise of "freeing man from fear," and the U.N. Charter swore "saving the following generations" from the curse of war. There is still a long way to go. Man stays, therefore, under the effect of a permanent and perverse blackmail. We have to know how to free him. Every one of us has the duty to take part in that life-saving work for humanity.
/https%3A%2F%2Fassets.over-blog.com%2Ft%2Fcedistic%2Fcamera.png)