At the entrance to the Peace Palace in the Hague, the heavy door seems to have come unhinged. A sign asks you politely in three languages to close it behind you. In the Great Hall sit the fourteen judges of the International Court of Justice, representing the world's diverse traditions of jurisprudence. In November of 1995, the thirteen men and one woman of the planet's augustest court were presented with an awesome challenge -- to issue an advisory opinion on the legality of nuclear weapons.
You could perhaps call it the trial of the millennium, a geo-political showdown over the bomb and the meaning of international law. These operatic hearings before the highest judicial organ of the United Nations offer us a stunning, though perhaps unsurprising view of the state of the world.
The mayors of Hiroshima and Nagasaki testified with the Japanese delegation, laying the explosions over those two cities as the foundation of this case. The specter of nuclear tests past and present haunted the hall as Pacific island states had their day in court. Small countries made unexpectedly powerful arguments while the nuclear powers dodged the legal questions, held up a stiffarm of nuclear deterrence and scrambled to control a process they couldn't command.
At issue were two questions brought to the World Court by separate bodies of the United Nations. The World Health Organization asked the court in 1993 to rule, in view of the environmental and health effects of nuclear weapons, on the legality of their use in war. In 1994 the General Assembly followed suit, requesting the court to give its advisory opinion not only on the use of atomic weapons but also the threat to use them, in any circumstance. Both UN agencies brought their resolutions with the support of an international team of lawyers, diplomats, other professionals and citizen activists called the World Court Project.
The court agreed to hold oral hearings on the two questions together after a record number of countries produced written submissions on the requests. Twenty-two nations and the World Health Organization made oral statements between October 30 and November 15.
The WHO question probes uncharted legal ground. Can nuclear weapons be viewed under the law as a menace to the health of the planet and its people? WHO has devoted a great deal of its effort to researching the many facets of this menace, and has repeatedly produced reports concluding that nuclear war is the single greatest threat facing the life and health of human beings, and advocating nuclear disarmament as an urgent means of preventive health care.
Four of the nuclear states and permanent Security Council members (China did not participate in the proceedings) protested that this specialized agency was acting beyond the range of its mandate and its request was thereby inadmissible. France testified that "WHO has no competence, if I may say so, except 'after the event.'" Jonathon Wutawunashe, Minister for Zimbabwe, derided this claim that WHO's only jurisdiction is "downstream."
The large majority of states argued that both questions were admissible and there were no compelling reasons for the court to withhold its advisory opinion -- a discretionary sidestep the International Court of Justice has never taken. The majority asked the court to return an opinion declaring the threat or use of nuclear weapons illegal in any circumstances. The nuclear weapons states and their participating NATO allies felt differently.
Australia led off the parade of state testimonies on a suitably schizophrenic note. Mindful of its alliance with the US, the government asked the court to refrain from issuing an opinion. Equally mindful of public outrage over French testing in the Pacific, Foreign Minister Gareth Evans forcefully condemned the acquisition, possession, testing and deployment of nuclear weapons as contraventions of international humanitarian law. "It cannot be consistent with humanity to permit the existence of a weapon which threatens the very survival of humanity," Evans said. He did, however, endorse the "principle of stable deterrence" as a means of ensuring against their use, on the understanding that "such deterrence can only be a temporary necessity..." pending nuclear disarmament and the eventual elimination of all nuclear arsenals.
The question of deterrence came up again and again as the hearings progressed. The language of deterrence, of course, is gospel for the governments of the nuclear weapon states; it is virtually the only language they employ in discussing the weapons to which they cling so faithfully. France, for example, prefaced its testimony by insisting that its deterrence doctrine is "the keystone of its security" and a major contributor to world peace. But many countries contended the contrary, that deterrence postures actively endanger peace and security.
Indonesia led the charge with its statement that "the very concept of deterrence is meaningless without a credible willingness to use; hence 'deterrence' equals 'threat to use.'" The UN Charter's proscription of the threat or use of force, according to Indonesia and others, makes nuclear deterrence an illegal foreign policy. In addition, the failure of four nuclear states to renounce first use of nuclear weapons puts the lie to their claim that deterrence is a purely defensive doctrine.
Nor was there consensus that deterrence deserves credit for keeping the peace. All of the nuclear states, it was mentioned, have fought wars in the past half-century. On numerous occasions, the Cuban missile crisis being the most well-known, the world has hurtled toward the nuclear precipice. As for the longstanding claim by the Security Council countries that their brinksmanship has staved off nuclear war, in the words of Malaysian Ambassador Ismail Razali, it amounts to "a handful of countries arrogating to themselves the right to assess and determine what is world peace and security, exclusively in the context of their own imperatives."
The case against the bomb is based on the gambit that international law can assert itself in a way that diplomacy has not -- that the law, as the Mexican statement put it, is "the defense par excellence for the weak." The nuclear states have taken the bait by denying that law has any role to play in the arena of nuclear arms.
Egypt argued in favor of an advisory opinion from the court on both the WHO and General Assembly questions, stating that a ruling would "clarify aspects of international law for the requesting bodies." The French statement attacked this premise, insisting that the requests were politically motivated and would resolve no outstanding legal issue. Instead, said M. Marc Perrin de Brichambaut for the French government, "by complying with this request, the court would be legislating," and thus compromising its judicial integrity. This stress on legal merits seemed out of keeping in a statement so clearly premised on a political policy -- deterrence -- and a pressing political concern -- the status of disarmament negotiations.
Germany and Italy repeated the French declaration that a ruling could harm the progress of talks on a "politically possible" Comprehensive Test Ban Treaty and other disarmament measures, and that the questions involved are political rather than legal in nature. Germany referred to a "fundamental principle of the political character of nuclear weapons"; Italy testified that any answer the court could derive would have a political value overriding its legal value. The bomb is simply too hot a topic for the law to mean very much, the argument ran, so it should not be addressed by a judicial body.
There's no denying that politics are at the heart of the matter. As Colin Archer, Secretary-General of the International Peace Bureau, writes, "Law is no panacea. It is an area of struggle between the powerful and the unpowerful, a struggle over social values and meanings." International law is on trial in this case, just as much as nuclear weapons.
Speaking for Egypt, esteemed law professor George Abi-Saab detailed a litany of humanitarian conventions and rules governing armed conflict. The St. Petersburg Declaration of 1868 proclaimed that civilian targets are off limits in war and outlawed extremely inhuman weapons. The Hague Conventions of 1899 and 1907, negotiated near the present site of the Peace Palace, decree that "the right of belligerents to adopt means of injuring the enemy is not unlimited." Poison gas and other chemical weapons were outlawed in 1925 after their use in World War I. The Geneva Conventions, the most recent protocols to which were adopted in 1977, seek to protect non-combatants from injury in war.
Abi-Saab argued, as did the majority of countries in the hearings, that the use of nuclear weapons falls afoul of the letter and spirit of international humanitarian law. Any use of the bomb in wartime would cause unnecessary suffering, affect military and civilian populations indiscriminately, and release poison radiation into neutral territories as well as the enemy state, the effects of which would linger for generations after the end of hostilities. A number of states referred to rules protecting the environment from widespread, long-term and severe damage in war, including the recent protocols to the Geneva Conventions. Abi-Saab quoted a Swahili proverb: "When the elephants fight, it's the savannah that suffers." The nuclear savannah, he said, is represented by the non-nuclear countries questioning the freedom of the elephants.
Japan's submission anchored the case against the bomb. While Japan did not directly pronounce nuclear weapons illegal, it declared them "clearly contrary to the spirit of humanity that gives international law its philosophical foundation." The detailed evidence on the half- century of suffering visited upon Hiroshima and Nagasaki, and the graphic and moving testimonies by the mayors of both cities, gave urgency to Japan's appeal to moral principle.
Morality does exert some force upon the law. Several states arguing for illegality mentioned Marten's Clause, a customary rule of international law dating back to the Hague Conventions. This catch-all clause, designed to govern new and barbaric weapons not expressly prohibited, states that in cases not covered by international instruments, civilians and belligerents "remain under the protection and authority of principles of international law derived from established custom, from principles of humanity and from the dictates of public conscience." The World Court Project collected over three million signed declarations and delivered them to the court as exhibits of the public conscience.
But moral considerations were utterly absent from the statements of the nuclear powers. Russia opened its remarks by barring "political as well as emotional aspects of the problem" -- by which it meant all references to what nuclear weapons are and what they do. Laws pertaining to human rights, according to the Russian Federation, "exist in a quite different dimension," one that can have no bearing on issues involving nuclear weapons. Regarding the provisions against unnecessary suffering in warfare, the Russian statement pointed out that it is difficult to define what levels of suffering are unnecessary, and that humanitarian factors must always be correlated with the military advantage to be gained by certain tactics.
The United Kingdom and United States echoed Russia on these points. All three testimonies, once they got through pleading with the court not to accept the case and addressed the merits, set out to demonstrate that current international law provides for no general prohibition on the threat or use of nuclear weapons per se. All three relied on the principle of sovereignty, by which states are free to act in any way not specifically prohibited by treaty or customary law. All three invoked the right to self-defense against armed attack. Nuclear weapons may be legal to use, they argued, or may be illegal; it depends on the circumstances and cannot be argued hypothetically.
Effective counterarguments to these were provided by Professor Merlin Magallona of the Philippines, who performed the classic legal maneuver of shifting the burden of proof. There is no need, Magallona argued, to derive a general prohibition from existing international law. The General Assembly asked whether the threat or use of nuclear weapons is permitted under any circumstance. The onus is thus on the nuclear advocates to prove a permissive rule, which they hardly even attempted to do. The nuclear states premised their sovereignty arguments on a contentious case from 1927, but the international order has changed substantially since then, and with the creation of the United Nations, states have abdicated their unrestrained freedom to threaten or use force. Tiny San Marino confronted the nuclear powers by asserting that "not even the right of self-defense could justify the resort to nuclear weapons," since their use would lead to irreversible, uncontrollable measures.
San Marino, of course, is hardly noted for its expertise on the nature of nuclear weapons. However, both the UK and US made some highly dubious assertions on this very subject. In general, they put forth the view that nuclear weapons are not inherently different from conventional weapons. Both insisted that nuclear weapons are not necessarily indiscriminate; as John McNeill of the Pentagon's legal team put it, "Modern nuclear weapon delivery systems are, indeed, capable of precisely engaging discrete military objectives." Both countries denied that nuclear weapons could be termed poisonous or chemical weapons under international law. The UK went so far as to say that the primary effects of nuclear weapons are heat and blast; radiation is apparently only tangential -- or, in Pentagonese, "collateral."
Neither the UK nor the US alluded to any past or present testing program -- or, needless to say, to Hiroshima or Nagasaki. The Marshall Islands' testimony neatly rebutted their characterization of nuclear weapons. Nearly all of these 1,225 islands continue to suffer the effects of 67 weapons tests conducted while the Marshall Islands were still under UN Trusteeship. These tests included the 1954 "Bravo" shot at Bikini Atoll, the largest explosion in the history of humankind. The impact of these detonations on human and environmental health has stretched over several decades and thousands of miles from ground zero.
Lijon Eknilang, an indigenous woman and local council member from Rongelap Atoll, gave a shattering testimony. All of the Rongelapese were evacuated after Bravo and returned to a poisoned land. Mrs. Eknilang has suffered seven miscarriages and cannot have children. Such reproductive abnormalities are now common among her people, she said; many women give birth to "monster babies" with transparent skin and no bones, and many die in childbirth.
Mrs. Eknilang's searing words revealed what was most glaringly absent from the US presentation. What was missing, in short, was any reference to moral principle -- which Japan described as the foundation of international law. One small example should illustrate the point. In building his argument for the unrestrained sovereignty of states, Michael Matheson of the State Department quoted from the court's 1986 decision in the case of Nicaragua vs. the United States -- a case, lest it be forgotten, in which the US was found guilty of violating Nicaragua's sovereignty by mining its harbors. Matheson made no mention of the fact that the US lost this case and in fact repudiated the court's jurisdiction. Power requires no apologies; our actions, like our armaments, are legal as long as we say so.
In contrast to this excess, the final presentation, by Zimbabwe, beautifully captured the essence of the challenge facing the judges. In Ambassador Wutawunashe's words, this case "creates an important opportunity for the International Court of Justice to assert the legal and moral authority...essential to the task of realigning the global system with objective standards of legality and reason."
A ruling on the case is expected by April of 1996. It is possible, of course, that the court will duck the issue entirely, as the nuclear states have requested. But there are reasons to expect that the court will engage at least one of the questions at issue. The unprecedented level of interest and participation in this case, from nations and citizens alike, makes it seem unlikely that the court would declare its own irrelevance on this vital subject.
As counsel for the Solomon Islands pointed out, the court could give the cautious response that any threat or use of nuclear weapons is subject to international law. Such a judgment would put to rest the notion that the bomb is somehow above the law, but unless it were accompanied by a breakdown of the possible circumstances for legality, this opinion would be open to wide interpretation and would not assist the General Assembly in preventing armed conflict or promoting nuclear disarmament. A ruling that confirms the illegality of any threat or use of nuclear weapons, or specifies a small set of scenarios in which a state could legally countenance their use, would clear the way to a formal convention banning nuclear weapons, as chemical and biological weapons have already been proscribed by the UN. Such an opinion, although not formally binding, could nevertheless undermine the legal basis for deterrence policies and lend authority to advocates for disarmament and new definitions of national and global security.
Obviously, outlawing nuclear weapons cannot ensure against their use -- any more than banning torture can prevent its practice. But this does not mean that the proceedings in the Peace Palace were fruitless. They have offered citizens and small countries the possibility of using international institutions to call the world powers to account. They have given the world an opening to reassert the rule of law over the rule of nuclear terror.
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Roger K. Smith is Network Coordinator for the NGO Committee on Disarmament at the United Nations, and teaches communication at New Jersey Institute of Technology. He attended the oral hearings on the nuclear weapons case at the World Court.