1996 Nuke judgement (3)

Q: Why did those two contradictory parts co-exist in that one sentence?

A: These are two contradictory parts, in a way. But that is the work of the drafting committee. They could have their reasons for it. And they put it like that.

Q: And your group should oppose that idea, should split it into two parts.

A: It was clear that some wanted to keep open a window of opportunity for use in self-defense.

So perhaps it makes it a little more acceptable. That first part was put there saying we are condemning it--we are condemning it. So this states the agenda position, that it is opposed to civilized rules of warfare.

And the position was clear, that all loopholes for the use or the manufacture or the preservation or the storage of nuclear weapons, that all loopholes should be closed. That was my categorical position, and that was the view of those who opposed the nuclear weapons

.

Q: What was the response from other groups? Could you tell me about some of the discussion?

A: No, no, of course we had a lot of debate about that, as to why that should be there, and of course, one of the answers to that was that it is necessary for deterrence. And look, for 70 years or 60 years, we have not had war going to the nuclear weapon, so we have to have the nuclear weapon.

Which is a false argument, totally false, because … even though we had the nuclear weapon, we were on the verge of war so many times. I think I have enumerated here.

Q: So, you must be disappointed.

A: Of course. It was a deep disappointment to see that a loophole was left open when we had every chance of closing it once and for all, and saying nuclear weapons should be banished from the face of the Earth.

Now, with that loophole, other nations were able, even India and Pakistan, to do research and try to get nuclear weapons, as we see.

Q: However, if President Bedjaoui didn’t cast the “yes” vote, that whole point E would have been nothing, wouldn’t have been established.

A: It would not be necessary at all. If nuclear weapons were said to be totally illegal, then it follows that they must all be banished … . That last point says that the nuclear powers, they can keep their weapons, but they must slowly, in good faith, take steps to get rid of that.

All that would have been totally unnecessary if they were said to be totally illegal. Or, if they were totally illegal, they have got to be stopped, eliminated.

Q: Some people say that it’s better than nothing.

A: No, of course it is better than nothing. Better than nothing, certainly, because … we have been able to argue that there is a duty on all the nuclear states to …

Q: Point F.

A: … point F. To get rid of their nuclear weapons, there is a duty, and that they must, in good faith, take steps to get rid of them.

Now, another thing we should, I should, mention is that, you know about the “nuclear winter.” You see this time, when Hiroshima and Nagasaki were attacked, they were “like sitting ducks.” You know. They could not retaliate. So the poor citizens of those two cities had to just take the nuclear bomb and suffer in silence.

But today, there are so many states that have nuclear bombs, there are thousands of nuclear weapons all over the world. And once a nuclear bomb is used today, you can be 100 percent certain that there will be retaliation.

And then the scientists had said, quite clearly, even at that stage, that when bombs start going in both directions, the atmosphere will be blocked out, blotted out, by the soot and all that, crops will fail throughout the world, and there will be a nuclear winter. There won’t be food for anybody on Earth, and the human race will perish.

So the nuclear winter is a certain result of the next use of a nuclear bomb. And that’s what we had, even at the time we wrote this judgment, that was quite clear. And, therefore, the bomb had to be totally banned.

Q: I see. Let me go back to the first question. What do you think of the historical context of the ICJ in 1996, the advisory opinion? Because the disarmament process has still been very, very slow. And nuclear proliferation has continued.

A: Of course. No, since our opinion, which was given in 1996, how many years now? Nearly 20 years.

Q: Eighteen years now.

A: Eighteen years. Right now, all arsenals should have gone. But even now, some powers have, say, thousands of nuclear weapons, and each nuclear weapon is so much more destructive than the ones even used on Hiroshima and Nagasaki, and they are slowly getting rid of them.

But we can’t wait a hundred years for this; we have got to do it very quickly. And that is where this one will come in useful, where I have given about 15 reasons why the nuclear weapon, the next time it is used, it will be absolutely devastating to all of humanity, and the chance of it happening is greater due to some reasons.

One is that in those days there were only five nuclear powers. Now there are seven or eight, and there are more and more. More and more are trying to have nuclear weapons, and countries that have a lot of money will try to hire scientists, you know, nuclear scientists, who are prepared to come and give their skill. And they can all try to make bombs, and we do not know whether any other two or three countries already have a secret nuclear bomb. So the number of countries is increasing.

Then, the availability of the material is there because all the nuclear reactors in the world have got nuclear waste, and even the International Atomic Energy Agency has no records of this.

Q: You are talking about horizontal nuclear proliferation, not only the five nuclear powers but also other countries.

A: No, then there is also research going on.

Q: How can we stop it? Would you think that the NPT is still useful for that purpose?

A: Of course, if the big powers are sincere about wanting to get rid of nuclear weapons, they will make much more meaningful cuts, and that is, you see, what we said. And remember that there can be no more important pronouncement of international law than a unanimous opinion of the International Court of Justice.

The International Court of Justice is at the apex of all the courts in the world. And if all 15 judges--or 14 judges--of that court agree on something, there can be no higher statement of the law. And this is the highest statement possible of the law in our world. That there is an obligation to pursue in good faith and bring to a conclusion, is it? A conclusion.

Q: Yes.

A: Negotiations leading to nuclear disarmament in all its aspects and a strict and effective international control.

Now, are the big powers prepared to subject their arsenals to strict and impartial international control? Are they working within a reasonable timeframe?

I would say a reasonable timeframe is, at the most, five years. Now, already 18 years have passed, and how much longer are we going to wait? And the possibility of even some nuclear accident

triggering off a war is ever-present. So we can’t wait for another 20 years. We have already waited 18 years.

I would say the maximum, as a manifestation of good faith, they should negotiate with a view to getting rid of all their arsenals in five years. And there is also this point that the nuclear powers are telling other people not to have nuclear weapons, but they are having nuclear weapons, so nobody is going to listen to a policeman who is telling them not to do something which the policeman is doing.

There must be a commitment to total disarmament within a reasonable number of years, and to have delayed 18 years is just unreasonable, in the face of all these dangers, especially of the proliferation of nuclear weapons.

Q: It is point F. In the NPT, Article 6, right?

A: Yes.

Q: So without any timeframe, the nuclear powers …

A: Yeah. But that’s where the words “good faith” come in. “Good faith” means you must take a reasonable view. You can’t say we can wait until the end of this century. You have to do it within the next three, four or five years, especially because of the rate of proliferation of weapons, the rate of proliferation of knowledge, the proliferation of materials, the proliferation of groups that could be interested in using this.

So we have got to do this very quickly, and an urgent message must go out. That, instead of just taking “their own sweet time” over it, they have got to do it with a sense of urgency.

Q: But it seems to me that nuclear powers make use of that phrase, or opinions, or the NPT or ICJ, to justify their arsenals as long as possible.

A: Yeah. But this can’t go on forever. Now, suppose somebody were to ask, 25 years after this, “Is it reasonable for any power to have a single weapon?”

The simple answer is no. But then, that’s not the way we are heading because after 18 years, the two major powers, the U.S. and Russia, have thousands of nuclear weapons in their arsenals, and other powers have hundreds. So it’s something which is totally against the spirit of the highest pronouncement of the world’s highest tribunal on international law.

Q: Has the 1996 ICJ advisory opinion made any difference?

A: Oh, yes. Oh, yes. I certainly think it has exposed to the world the fact that nuclear weapons offend the basic principles of international law, for humanitarian law is a very important part of international law. And every single principle of humanitarian law is violated by the bomb.

Q: At that time, the World Court Project tried to have some impact on the court, the ICJ discussion. Now also, the same or other NGOs are trying to …

A: They are doing their best, yes.

Q: … take a new initiative.

A: Yes.

Q: What do you think of that?

A: No, it’s good that people should be taking steps to bring this to the attention of courts and lawyers, and the public, and the governments.

Q: What do you think of the difference between now and 18 years ago?

A: My view is that the problem is even more urgent now because the number of weapons is increasing. The research on the weapons is going on. And the weapons are more deadly today, much more deadly today, than they were in the time of Hiroshima. And the possibility of usage is growing, the possibility of accident and all of this makes it much more urgent now than it was in 1996.

Q: Do you think there is a need to have a certain legal framework like a nuclear weapon convention or something?

A: To make nuclear weapons illegal, you do not need a convention because nuclear weapons are absolutely illegal by the existing principles of international law.

Lots of people think you want a treaty to make nuclear weapons illegal. Now, under Article 38.1 of the statute of the international court, the sources of international law are stated.

One is the general principles of law recognized by civilized nations. Then there is customary international law. Then there are treaties and so on.

Now, some people think that a treaty is required to make a thing illegal. No. It’s already illegal for thousands of years under customary principles of international law, the principles prevailing among civilized nations, what has come down to us from generations past.

Q: Let me go back to point E of the advisory opinion. If the president made a “no” vote, point E would have been nothing, wouldn’t have been established. He, himself, was also not satisfied with the wording, especially the “generally” issue. But if he said, “It was a nightmare if he …”

A: It was a nightmare?

Q: A nightmare. Because if he made a “no” vote, the whole point E and advisory opinion would have been nothing or not so relevant to the public opinion. What do you think?

A: My deep regret is that the vote went the way it did, to him. The vote should have been a categorical refusal. That’s what it should have been. Anything less than that does not come up to the mark.

Like mine, like mine. No, not in any circumstances whatsoever. That is what I would have expected the anti-nuclear people to say. Not to leave a window open to use it.

Q: I understand what you mean. But the president, if Mr. Bedjaoui was not the president, he said, he would have voted “no.”

A: I don’t know. I don’t know. I don’t want to go into that.

Q: But you knew him very well beforehand, right?

A: We all knew each other.

Q: But the judge is also, in fact, a human being, so you can make a difference, I mean.

A: Of course. And this makes a difference for the whole history of it, could make a difference to world history.

Q: You were very straightforward in making a dissenting opinion there.

A: Yes. Well, that was the time, if ever there was a time, for a categorical rejection to be placed on the record of the nuclear weapon, in any circumstance whatsoever. That was like a heaven-sent opportunity, so we had to use it.

Point E is in two parts. … One is that it is generally contrary to international law, and the other is the window of opportunity. So these two are very inconsistent. Anybody against the bomb had to vote against it.

Q: I cannot understand the logic of why two inconsistent parts coexist in point E.

A: I agree with you. It would have been better if they had been separate. And I totally disagree with the word “generally.” “Generally” opens the loophole straightaway.

And, you know, if you study linguistics, every word in there, in every language, has so many different meanings. Now, the word “generally” can mean 51 percent or 52 percent. It can also mean 85 percent or 90 percent. It just means more than the majority, that’s all. It is the vaguest of possible words.

Q: Some judges argue that it’s better to have this word, “generally,” because it’s more objective. It opens a loophole. You say that, but they say that it’s more, kind of, objective, and it gives, kind of, the opportunity for future technological progress or something like that.

A: How can that be technological progress if the argument is that you can make a bomb which can read the mind of a person and say, “This man is a noncombatant and this man …”

Or that a bomb can differentiate, whatever that is. I totally disagree. That seems like fantasy.

Q: You discussed that during the meetings?

A: All I know, or remember, is we had the pro- and the anti- judges, and if we had just one vote on our side, if that poor South American judge had been there, it might have made all the difference, because then there was no need for a casting vote.

Q: Were you disappointed after that ’96 advisory opinion announcement?

A: Yeah, I thought a great opportunity had been missed, of condemning the weapon once and for all. Because even getting the matter to the court was not easy. The General Assembly had to vote on that, to take the matter to the court. And that required a lot of persuasion and so on.

Once it had come, that was the opportunity for us to assert the power of the law.

Q: However, I think in Hiroshima or in Nagasaki, the people were not so disappointed. I mean, they evaluated it by saying, “It’s good.”

A: Ah, they thought it was good.

Q: At least that ICJ judges …

A: Were beginning to think about it.

Q: Yeah. And they also declared it’s generally illegal. It was better than nothing.

A: Yeah, it is.

Q: Because they didn’t expect that the ICJ would judge anything.

A: Oh yeah, it’s better than nothing. That’s right. Because they might have expected that it would be thrown out.

Q: It was the first judgment, anyway, at least, to nuclear weapons. So I think it’s very, very important, still important, isn’t it?

A: Very important. I think it’s the most important case that ever came before our court--before any court--at any time.

Because, you know, the future of humanity depends on this.

Q: Right.

A: Because if there is another nuclear war, if another nuclear bomb is used anywhere, it will lead to an exchange of bombs. That’s the end of civilization. So that’s the end of the human race.

Q: But the Japanese government didn’t give a clear idea on the illegality of nuclear weapons in the court.

A: No. But the Japanese people don’t want the bomb, and the Japanese government, I think, has got an ambivalent attitude on it because it’s relying, I think, on U.S. protection.

Q: The U.S. nuclear umbrella. Any opinion on that?

A: I think the nuclear umbrella is a total illegality. That’s what I think. Because if you are threatening to use a nuclear weapon, you are threatening to massacre millions of innocent people. Nobody has the right to do that.

Q: If you go to Hiroshima and Nagasaki, you will hear the voice of the people who share that view, who are against, totally against, nuclear weapons.

A: It’s so moving. Yes.

Q: But if you go to Tokyo and talk with the politicians or government people, they have another kind of ambivalent opinion.

A: That’s right.

Q: It’s very difficult to balance those two.

A: Yeah, but the world expects that Japan, as the one country to have suffered from a nuclear weapon, should give world leadership in opposing it. But Japan did not rise to that.

Q: Japan follows the step-by-step approach of the nuclear weapons states, that abolishment should be the ultimate goal, but not now.

A: Yes, yes. Incidentally, I was once a visiting professor at Tokyo University, and I did a book on human rights in Japan. I studied that very closely. And I think your system of civil liberties commissioners, in Japan, should be followed by the whole world. I’ve even written a newspaper column on human rights in Japan.