1996 Nuke judgement (2)

NUKE JUDGEMENT: Dissenting ICJ judge says 1996 advisory opinion on nukes left a loophole

August 01, 2014

http://ajw.asahi.com/article/behind_news/politics/AJ201408010083 

By MASATO TAINAKA/ Staff 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.

***

Christopher Weeramantry, a former judge of the International Court of Justice, laments the lost chance in 1996 to declare nuclear weapons illegal once and for all.

Weeramantry, 87, of Sri Lanka voted against point 2-E in the ICJ’s advisory opinion on nuclear weapons because he thought its ambiguous wording would leave a legal loophole.

A strong opponent of nuclear weapons, Weeramantry spoke to The Asahi Shimbun on July 18 in Colombo.

Regarding the outcome of the voting on point 2-E, Weeramantry said, “I personally regret that it went that way because the court had an opportunity of pronouncing nuclear weapons to be absolutely and totally illegal.”

He explained that the loophole was created in the advisory opinion with the inclusion of the word “generally” in touching upon the illegality of nuclear weapons as well as the second part of point 2-E.

It said 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.”

Weeramantry said, “A tiny window of opportunity was left open by ‘extreme circumstance of self-defense’ so the whole objective of a nuclear-free world is defeated by that proviso.”

He added: “If we had closed the loophole, then I think nuclear weapons could not have been retained and could not have been manufactured by the new nuclear countries. There would be a lot of pressure to indict as a violation of international law.”

Major differences of opinion emerged because judges from the five nuclear powers were on the ICJ. The judge from France, for example, argued that nuclear weapons had served as a deterrent.

Before the final vote on the advisory opinion, there were attempts to count the number of votes on each side. Complicating matters, one of the 15 judges who initially heard the case died before the final conclusion was reached.

“If that South American judge (from Venezuela) had been there, it might have made all the difference, because then there was no need for a casting vote (by the ICJ president),” Weeramantry said.

He added that point 2-F was still of great importance even 18 years after the advisory opinion was issued because “there is an obligation on all the nuclear powers to take steps toward ending their nuclear arsenals.”

Weeramantry also expressed disappointment that Japan, as the only nation to have suffered from a nuclear weapon, had not taken a leading role in the nuclear disarmament movement.

He pointed to the difference between testimony given by the mayors of Hiroshima and Nagasaki and the official position of the Japanese government.

“The Japanese government has an ambivalent attitude because it is relying on U.S. protection,” Weeramantry said.

He added: “Every person holding power in the world should visit Hiroshima and Nagasaki and hear the stories of the actual victims. People talk about the nuclear bomb without knowing the full realities.”

NUKE JUDGEMENT/ Weeramantry: Small proviso ruins chance to declare nuclear weapons illegal

August 01, 2014

http://ajw.asahi.com/article/behind_news/politics/AJ201408010085 

By MASATO TAINAKA/ Staff 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: First of all, what do you think of the historical context of the 1996 ICJ advisory opinion?

Christopher Weeramantry: Well, I think, in the historical context of the court, that is the most important case that ever came before the international court. So many countries making submissions, we had witnesses, we had weeks of hearings and deliberations, and it was an issue of importance to the entire history of the world, because my personal view is that the future of humanity depends, to a large extent, on our being able to get rid of nuclear weapons.

So when the case came up before the court, of the illegality of nuclear weapons, I think that was absolutely historic. So certainly in all the--so many decades--of the court’s existence, there was never a more important case.

Q: Now I would like to ask about the important paragraph, 2-E, of the advisory opinion. Could you tell me the reason why you were against point E: “… 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, … 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.”

A: No, no, all this has to be taken together, those two clauses. And when they are taken together I cannot possibly vote for them. And because there was a slight exception here to the illegality of nuclear weapons--this was to satisfy some who thought that the weapons should be permitted to remain.

So I was for the total abolition of the weapon. I said in no circumstances whatsoever can it be legal, so I had to vote against that.

Q: There were 14 judges at that time, after one judge had died.

A: Yes, died. Yes. Now, if … he was there, it might have been very different. We don’t know.

Q: I would like to know how you inserted “generally” in point E.

A: That I don’t know. I was not on the drafting committee anyway.

Q: Because, according to your dissenting opinion, you were strongly against that wording.

A: Yes. I think “generally” would have been inserted because everybody agreed, even those who were in favor of the bomb. They agree that, generally, it violates the principles of humanitarian law.

Q: Recently, a senior colleague of mine went to Paris and had an interview with former ICJ President Mohammed Bedjaoui. And he said that the drafting committee inserted the word “generally” in point E “for the future technological progress,” because in the future, human beings may be able to produce a small, smart, nuclear bomb that differentiates between combatants and civilians.

A: I totally disagree with that. How can a bomb have the intelligence to know that that man is a soldier and this man is a civilian? How can the bomb know that this is not going to damage the environment? How can that be assured when the nuclear reaction goes on for multiples of 20,000 years?

Q: Did you argue that during the discussion in 1996?

A: Of course. I put forward all these points of view.

Q: What was the response from the nuclear power judges, like the French or American ones?

A: There were judges who were totally against the bomb. For example, you can see from the voting patterns, judges who accepted that the bomb was very bad but thought that it should still be reserved as a deterrent because the bomb will keep the other party, the other “bad chap,” from using it, see, if I have the bomb.

So that kind of thinking was there.

Q: So did you insist that the word “generally” should be omitted and deleted?

A: Yeah, there would have been a discussion on every word of all this, and particularly the word “generally.” It’s a very important word. But I think that it is totally untenable to say that you can have a weapon in the future which will discriminate between the civilian and military person, and also that totally ignores our responsibility towards future generations.

The bomb clearly is going to damage future generations, not one generation but a thousand generations. And what right have you got to use it?

Q: Please let me ask about the final voting of the advisory opinion. Do you remember point E? That all the judges, 14 judges, split into two camps by seven votes to seven. Did you expect that?

A: Well, the case was going on for many weeks. And we had a rough idea how all our colleagues were thinking because this was a matter of discussion among us every day. And we had a rough idea how it was going.

But it seemed to be it would be balanced. And that’s what it was, in fact, seven and seven.

Q: President Bedjaoui was also anti-nuclear, wasn’t he?

A: I don’t want to talk about that, casting the vote, because that casting vote is the vote that prevented the court from saying, once and for all, that nuclear weapons are illegal. If it had gone the other way, it would have made a huge difference. And I personally regret that it went that way.

Q: Why?

A: Well, because the court had an opportunity of pronouncing nuclear weapons to be absolutely and totally illegal. But a tiny window of opportunity was left open by, you know, in extreme circumstances of self-defense, or when you are under attack and your very survival is at stake.

So that little thing meant that you, therefore, have to keep nuclear weapons because you have to defend yourself. Therefore, you can’t abolish nuclear weapons. Therefore, you must continue storing the nuclear weapons. So the whole objective of a nuclear-free world is defeated by that proviso.

[end of the article in parts 3 & 4]