International Criminal Court
On July 17, 1998, after two years of intense negotiations, the Statute for an International Criminal Court was adopted in Rome. The Statute provides for the establishment of a court to try individuals accused of serious crimes including genocide, war crimes and crimes against humanity, and outlines the elements of such crimes over which the court would have jurisdiction.
The ICJ advisory opinion was influential in two main respects:
Language from the ICJ opinion on weapons which are “inherently indiscriminate” made its way into the description of weapons the use of which would be a crime under the Statute.
An attempt by the NWS to legitimise their nuclear policies by specifically including the employment of chemical and biological weapons but excluding nuclear weapons and landmines, was thwarted by other States referring to the illegality of nuclear weapons as affirmed by the ICJ.
The negotiations provided a useful forum for raising the issue of the criminality of use of nuclear weapons and laid the groundwork for specific inclusion of the threat or use of nuclear weapons as a crime under the ICC’s jurisdiction in the future.69
New Agenda Declaration
In June 1998, the foreign ministers of Aotearoa-New Zealand, Brazil, Egypt, Ireland, Mexico, Slovenia, South Africa and Sweden released a joint declaration entitled Towards a Nuclear-Weapon-Free World: The Need for a New Agenda. It called for renewed international efforts towards nuclear disarmament and outlined a program to achieve this.
The New Agenda countries actively promoted the agenda in international fora, and were very influential in forging a successful outcome to the 2000 NPT Review Conference.
The Court’s decision was highlighted in the New Agenda Declaration, the New Agenda resolution at the United Nations and the NPT 2000 Final document.
Other influences
The WCP involved a unprecedented level of NGO involvement in UN arenas in which they had participated very little previously. This included the World Health Assembly, UN General Assembly First Committee (Disarmament and Security) and the International Court of Justice. The ICJ was not used to such a level of NGO and media interest, nor quite prepared for it, and had to open up previously unused rooms and add video monitors to relay the hearings.
Dewes notes that as a result of this heightened NGO activity in these UN organs in a professional collaborative manner :
“There is no doubt that especially during 1992 – 1995 the WCP helped democratise three key UN organs: the ICJ, WHA and UNGA. It was unequalled in terms of effective peace movement coalitions working in close partnerships with a wide range of governments within the UN.”70
The World Court Project appears to have stimulated greater interest in and respect for the International Court of Justice contributing to the dramatic increase in states referring disputes to the Court. Prior to the case, many non-aligned countries, for example, suspected that the Court, like the UN Security Council, was another discriminatory institutional tool used by the nuclear weapon states and their allies to dominate developing and non-aligned countries. Malaysian Ambassador Razali Ismail indicated this when he told the court:
The Court is being asked by the nuclear-weapon States, in essence, to perpetuate the right of these five countries to that power apparatus, even when the rest of humanity rejects the diabolical potential interest in nuclear weapons. If the laws of humanity and the dictates of the public conscience demand the prohibition of such weapons, the five nuclear-weapon States, however powerful, cannot stand against them. International law cannot be utilized to support State practices which deviate from fundamental principles and mainstream aspirations. Otherwise we would be legitimizing the principle that might is right and we would have to come to the frightening conclusion that international law is on the side of the powerful, as interpreted by the powerful.71
The Court’s decision in this case, while not being watertight against the nuclear weapon states, was an incredibly powerful challenge to their nuclear policies. Ismail noted that the case achieved “astonishing results from the highest court in the world. The 'World Court clearly ruled that the threat or use of nuclear weapons is illegal in almost all conceivable circumstances.”
Razali went on to become the President of the United Nations General Assembly from 1996 – 97 during which time he appeared to use the positive experience from working closely with NGOs on the WCP to open up the UNGA to greater NGO participation.
The WCP also had some influence on NGO participation in the negotiations for the Statute for the International Criminal Court and in the NPT 2000 Review Conference., Key WCP activists used the diplomatic contacts they had developed in the WCP to advance proposals through government delegations to these meetings and, in some cases, to be appointed onto government delegations. Such delegations included Samoa, Philippines, New Zealand, Malaysia, Costa Rica and Ireland.
Looking Forward
The WCP involved collaboration between NGOs, and NNWS to successfully confront the policies of the NWS. The challenge following the ICJ decision is how to most effectively use the decision to achieve nuclear disarmament. While there is still a role for initiatives which confront the NWS - such as domestic court actions, critical UN resolutions and further actions in the ICJ – there is a greater need to engage constructively with States, including the NWS, on the development of plans for nuclear disarmament. This entails taking into consideration the security needs of States and the legal, technical and political requirements for the complete abolition and elimination of nuclear weapons72
The Model Nuclear Weapons Convention provides opportunities for disarmament advocates and NWS officials to discuss concrete elements of a nuclear abolition regime without requiring a politically difficult prior commitment to support either the specific elements or the entire convention. Such dialogue shifts the debate from a polarizing one where parties are defending different positions on disarmament issues73, to one of collaborative problem solving. Dialogue about the MNWC does not focus on whether States currently support or oppose specific disarmament steps, but rather on how to collectively build a regime for nuclear disarmament in which all States (and citizens) have confidence and security.74
As such, the MNWC has enabled nuclear disarmament advocates and NWS policy makers to engage in constructive dialogue on nuclear disarmament elements in a number of settings including: 75
In August 1997, a roundtable consultation of delegates from 20 countries to the UN in Geneva discussed various aspects of the MNWC.
In March 1998, policy makers from China, France, India, Pakistan, Russia, UK and US discussed the MNWC at a retreat in Neemrana, India.
In June 1998, US Representative Lynn Woolsey hosted a seminar on the MNWC which was attended by representatives from 30 congressional offices.
At various lobbying days organized by disarmament groups, and at other informal meetings with members of the US Administration, Department of Energy, Department of Defense and Congress, advocates have used the MNWC as a tool for engaging in discussion about the possibilities of nuclear disarmament.
The Nuclear Weapons Convention Monitor, which includes discussion on the MNWC, has attracted both readers and contributors from NWS.76
The dialogue model utilised in the MNWC approach is similar to that of conflict resolution and negotiation developed by the Harvard Negotiation Project77 which includes principles and practices to:
Separate the actors from the problem
Focus on interests not positions
Invent options for mutual gain
Such an approach necessarily requires engagement between different actors, in this case the NWS, NNWS and disarmament advocates. The MNWC acknowledges the importance of each of these actors, and recognizes that they may hold different but complementary roles in both the political path towards a NWC and in its negotiation and implementation. Disarmament advocates, for example, have more freedom to develop and publicise proposals, organize consultations, seek feedback from NWS officials, demonstrate public support, conduct research and lobby. NNWS have greater opportunities to adopt national measures such as nuclear-weapon-free legislation, introduce initiatives into the international negotiating and deliberating bodies, and to reach higher level representatives in the NWS. NWS have greater ability to take actual disarmament steps relating to their arsenals and policies.
It was necessary for disarmament advocates in the WCP to operate according to these nuanced roles – particularly with respect to their collaborative work with NNWS. While delegates from NNWS, for example, were happy for NGOs’ support and suggestions in the drafting of the UNGA and WHA resolutions and in the drafting of their submissions to the ICJ, it was essential that the delegates themselves be willing to utilize their speaking, voting or submission rights within these international organizations to advance the issue.
The WCP advocates learned that collaboration with NNWS would be more successful if they fully understood the different perspectives of the NNWS. Some NNWS, for example, were more interested in the human rights aspects of nuclear disarmament. Some were more interested in human health. Others were more interested in the international politics of nuclear discrimination. These perspectives often related to historical or political aspects of those countries, such as whether they had suffered from nuclear testing, or from nuclear hegemony. The WCP thus tapered their suggestions to delegations to suit these differing perspectives.
The nuanced experience that disarmament advocates developed in the WCP is now being applied in the international campaign for the abolition of nuclear weapons and the achievement of a NWC.78 The goal – a NWC – is indeed lofty and some would say unachievable, except possibly in the very long-term. However, other difficult and seemingly distant goals - such as the Landmines Convention, International Criminal Court and indeed the proposal for an ICJ case challenging nuclear weapons – were achieved in a remarkably short time. Given the unpredictable nature of international political developments, it is conceivable that the negotiation and entry into force of a NWC could indeed occur in the near future. Effective collaboration between NGOs and governments will make this much more likely.
1 The author thanks Kate Dewes, Devon Chaffee and Rob Green for invaluable assistance in writing this chapter.
2 Alyn Ware is Consultant at Large for the Lawyers Committee on Nuclear Policy. He was the United Nations Coordinator for the World Court Project, was on the New Zealand government delegation to the 2000 NPT Review Conference, and was the New Zealand Delegate to the UNESCO 46th International Conference on Education in 2001.
3 H.E. Razali Ismail, quoted in The (Il)legality of Threat or Use of Nuclear Weapons, John Burroughs, Lit Verlag, Munster, 1997
4 The idea appeared, for example, in the statement of the 1958 World Ban the Bomb conference of jurists in Japan. See The World Court Project: The evolution and impact of an effective citizens’ movement, Kate Dewes, PhD thesis, University of New England, Oct 1998, p28.
5 The Non-Aligned Movement was established in 1961comprising member States which were allies of neither the USA or the USSR. There are currently 113 members, including Indonesia, South Africa, Egypt, India, Colombia, Chile, Malaysia, Pakistan and the Philippines.
6 Article 10 (ii) of the Treaty on the Non-Proliferation of Nuclear Weapons, which entered into force in 1970, provides for a review conference every five years. In 1995, the treaty was extended indefinitely. In 2000, member States agreed to strengthen the review process, which included continuing the five-yearly review conferences and also meeting for preparatory meetings annually, except for the year after a review conference.
7 In June 1998, the foreign ministers of eight countries – Aotearoa-New Zealand, Brazil, Egypt, Ireland, Mexico, Slovenia, South Africa and Sweden – released a declaration entitled Towards a Nuclear-Weapon-Free World: The Need for a New Agenda. This group of countries, except Slovenia, has continued to work together to promote the nuclear disarmament agenda in various international forums including the UN General Assembly and NPT review process.
8 International Court of Justice Advisory Opinion on the legality of the threat or use of nuclear weapons, ICJ, July 8, 1996
9 The World Court Project: How a Citizen Network Can Influence the United Nations, Kate Dewes and Robert Green,in Nuclear Weapons are Illegal, Ann Fagan Ginger (editor), The Apex Press, New York, 1998
10 France withdrew its acceptance after the Nuclear Tests Case 1974. The US withdrew its acceptance after the Nicaragua Case 1984. India accepts ICJ jurisdiction but has placed reservations on such jurisdiction in the case of security issues.
11 Can Use of Nuclear Weapons ever be legal? Maj Britt Theorin, Global Action, December 1993
12 Mutiny on the Nuclear Bounty, Mark Shapiro, The Nation, 27 December 1993
13 UN General Assembly Resolution 1 (i) January 24, 1946.
14 Keith Suter, An International Law of Guerilla Warfare, Frances Pinter, London, 1984, p.94, as cited in The World Court Project: The evolution and impact of an effective citizens’ movement, Kate Dewes, PhD thesis, University of New England, Oct 1998
15 Advisory Opinion of the International Court of Justice on the legality of the threat or use of nuclear weapons, Yves Sandoz, ICRC Director for International Law and Policy, International Review of the Red Cross, Jan-Feb 1997, no.316, p.7
16 Praeger, NY, 1959.
17 The Humanitarian Laws of Armed Conflict, paper submitted to the International Conference on Chemical and Biological Warfare, London 1969, pp7
18 The appeal, which was signed by more than 11,000 lawyers, declared that the use of nuclear weapons would constitute a violation of international law and a crime against humanity. International Association of Lawyers Against Nuclear Arms, the Hague.
19 See
The World Court Project: How a Citizen Network Can Influence the United Nations, Kate Dewes and Robert Green, in Nuclear Weapons are Illegal, Ann Fagan Ginger (editor), The Apex Press, New York, 1998
20 UNGA Res. 1653, 1961, Declaration on the Prohibition of the Use of Nuclear and Thermonuclear Weapons
21 Shimoda Case, Japanese Annual of International Law, 1964 pp 212 –259.
22 Aotearoa is the indigenous name for New Zealand. Both names are official and can be used together or interchangeably.
23 Aotearoa/New Zealand at the World Court, Kate Dewes and Robert Green, Disarmament and Security Centre, Christchurch, 1999, pp13-14
24 These included the Vega, Boy Roel, Spirit of Peace and Fri. French naval actions against the Vega resulted in court action within France, but this did not include consideration of the legality of testing. See Greenpeace III, Journey into the Bomb , David McTaggart with Robert Hunter, Colins, London 1978, p342 – p353.
25 Dewes and Green, 1999, p 13
26 Nuclear Tests (New Zealand v. France) International Court of Justice, Provisional Measures - Order of 22 June 1973. Nuclear Tests (Australia v. France) International Court of Justice, Provisional Measures - Order of 22 June 1973.
27 Human Rights and the Future of Mankind, Nagendra Singh, Vanity Books, 1981.
Nuclear Weapons and International Law, Richard Falk, et al, Indian Journal of International Law, 1980. Ethics and Nuclear Deterrence, G. Goodwin (ed) Croom Helm, 1983. Nuclear Weapons versus International Law, Burns Weston, McGill Law Journal 28, 1983.
28 See Defending Civil Resistance Under International Law , Francis Anthony Boyle, Transnational Publishers Inc., Dobbs Ferry, New York: 1987
29 Whilst project was initiated in 1987, the name World Court Project was not adopted until 1991.
30 Australia, New Zealand and the United States Treaty on military cooperation, 1951
31 Take Nuclear Policy to World Court, US Expert Advises, The Press, June 25, 1986
32 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America, ICJ 1984
33 The NAM now numbers 113 member States.
34 Dewes, 1998 op. Cit. P 157
35 New Zealand Nuclear Free Zone, Disarmament and Arms Control Act, 1987
36 South Pacific Nuclear Free Zone Treaty, 1985
37 The Labour Party in Australia contested the 1984 elections on an anti-nuclear platform, but once in power, yielded to US pressure to abandon the policy.
38 Palau adopted a nuclear free constitution by popular vote in 1981 (92% support). The US proposed an alternative constitution which allowed unrestricted US military use of the islands. When this was rejected, the US proposed a Compact of Free Association that would override the constitutional ban on nuclear weapons. After 9 plebiscites, millions of US dollars to persuade the 11,000 voters and harassment - including murder of pro-Constitutional activists and assassination of the anti-nuclear President - the Compact was adopted with sufficient support. Daughters of the Pacific, Zohl de Ishtar, Spinifex Press 1994, pp41-63
39 Nuclear Free the New Zealand Way, Prime Minister David Lange, Penguin Books, 1990. Interestingly enough, many of the peace movement’s views, which were then considered extreme, have now become the norm and are integrated into military policy and structure. The ANZUS alliance is no longer predominant, partly as a result of US withdrawal of many aspects of military cooperation. Weapons systems with offensive, force-projection capability, such as strike aircraft and frigates, are being reduced or phased out in favour of weapons systems more suitable for non-offensive defense or for UN peacekeeping functions (See: Winkin, Blinkin or Nod? Are New Zealand’s Defence Changes Promoting Peace, Alyn Ware, Peaceworks , Auckland, Winter 2001).
40 In addition to the ‘girlcott’ campaign, at the request of the New Zealand peace movement, US activists flooded New Zealand newspapers and parliament with letters of support and evidence of the strong anti-nuclear sentiment within the US.
41 This included photos of Soviet nuclear submarines that the US fed to media claiming they were exploiting the power vacuum in the South Pacific created by the nuclear free zone. The peace movement correctly identified these as photos of Soviet submarines in the North Atlantic ocean. On another occasion a tempting loan offer to the Ministry of Maori Affairs was identified by the peace movement as a hoax involving known CIA operatives.
42 Hague Convention (IV) Respecting the Laws and Customs of War on Land, The Hague, 1907
43 Dewes, 1998, op.cit p 313
44 World Court Project: How might the Court rule? What effect will that have? An Exploration of Possible Outcomes of the International Court of Justice’s Advisory Opinion on the Legality of the Threat of Use of Nuclear Weapons, William Epstein, Peter Weiss and Alyn Ware, Lawyers Committee on Nuclear Policy, 1993
45 Draft Memorial in support of the Application by the WHO for an Advisory Opinion by the ICJ on the legality of the threat or use of nuclear weapons under international law, Peter Weiss, Burns Weston, Saul Mendlovitz, Richard Falk, May 1994
46 US, UK, France, Russia, Italy, Netherlands, Norway and Germany all argued in support of nuclear weapons.
47 International Court of Justice Advisory Opinion on the Legality of the threat or use of nuclear weapons, oral hearings, November 13, 1995.
48 ICJ Advisory Opinion on the legality of the threat or use of nuclear weapons, Oral testimony of the Marshall Islands, November 14, 1995
49 Theodore Kronmiller, ICJ Advisory Opinion on the legality of the threat or use of nuclear weapons, Oral testimony of the Marshall Islands, November 14, 1995
50 Paul East, ICJ Advisory Opinion on the legality of the threat or use of nuclear weapons, Oral testimony of New Zealand, November 9, 1995
51 Nuclear Weapons Are Illegal: The Historic Opinion of the World Court and How It Will Be Enforced, Ann Fagan Ginger, The Apex Press, New York, 1998
52 For details on the nuclear weapons and yields deployed by nuclear weapon states see Nuclear Notebook, The Bulletin of the Atomic Scientists, Chicago. www.thebulletin.org/issues/nukenotes/nukenote.html
53 The (Il)legality of Threat or Use of Nuclear Weapons, John Burroughs, Lit Verlag, Munster, 1997
54 Letter from the UK Foreign and Commonwealth Office, Security and Policy Department to George Farebrother, Secretary of World Court Project UK , January 2001
55 Confidence, Security and Verification, Aldermaston Weapons Establishment, 2000
56 Congressional sign-on letter sponsored by Representative Schumer, 7 September 1996. See also Congressman Schumer discusses nuclear weapons, The Wave , 7 September 1996
57 H.Res.82 Resolution Recognizing the security interests of the United States in furthering complete nuclear disarmament, February 24, 1999
58 The ICJ Ruling that the use or threat of use of nuclear weapons is contrary to international law, Statement by President Ramos, Manila, 9 July, 1996.
59 Canada reviewing nuclear-weapons policy, Jeff Sallot, The Globe and Mail, 8 November 1996
60 The Commissioners included Celso Amorin: Brazil's Permanent Representative to the United Nations, New York, Lee Butler: Commander in Chief of US Strategic Command (1992-1994), Richard Butler (Convenor): Australia's Ambassador for Disarmament 1983-1988, Michael Carver: Chief of Defence Staff (1973-1976), Jacques-Yves Cousteau: Writer, film producer and former naval officer, Jayantha Dhanapala: Chair of the 1995 Nuclear Non-Proliferation Treaty Review and Extension Conference, Sri Lanka's Ambassador to the United States, Rolf Ekeus: Executive Chairman, United Nations Special Commission, Nabil Elaraby: Permanent Representative of Egypt to the United Nations, New York, Ryukichi Imai: Counsellor to the Atomic Energy Commission of Japan. Former Ambassador of Japan to the Conference on Disarmament (1982-1987) Ronald McCoy: Vice President of the Asia Pacific Region of International Physicians for the Prevention of Nuclear War, Robert McNamara: Secretary of Defense under Presidents Kennedy and Johnson. Robert O'Neill:Chichele Professor of the History of War, All Souls College, Oxford University Qian Jiadong: Former Ambassador and Permanent Representative to the United Nations in Geneva, Ambassador for Disarmament Affairs and Representative to the Conference on Disarmament. Michel Rocard:Prime Minister of France 1988-1991, Joseph Rotblat:President of the Pugwash Conferences on Science and World Affairs, Roald Sagdeev:Former science adviser to President Gorbachev. Chairman of the Committee of Soviet Scientists for Global Security, 1987 – 88, Maj Britt Theorin: President of Parliamentarians for Global Action. Former Swedish Ambassador for Disarmament.
61 Report of the Canberra Commission on the Elimination of Nuclear Weapons, Government of Australia, August 14, 1996
62 United Nations General Assembly Resolution 51/45 M, Follow-up to the advisory opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons, 10 December 1996.
European Parliament Resolution on the Non-Proliferation Treaty, 13 March 1997
63 A2000 developed from a statement drafted by a collection of NGOs at the 1995 Review and Extension Conference of the Treaty on the Non-Proliferation of Nuclear Weapons.
64 Letter dated 31 October 1997 from the Charge d’affaires of the Permanent Mission of Costa Rica to the United Nations addressed to the Secretary-General, UN Document A/C.1/52/7
65 United Nations Document A/C.1/52/7
66 Working paper submitted to the 2000 NPT Review Conference by Costa Rica and Malaysia, see Nuclear Weapons Convention Monitor, Issue 2, April 2001, p9
67 Women cleared as court rules nuclear arms illegal, The Guardian , London, Friday October 22, 1999
68 See Scottish Parliament Debate on the Greenock Decision, http:/ds.dial.pipex.com/cndscot/news/991029.htm
69 The International Criminal Court, Weapons of Mass Destruction, NGOs and other issues: A Report on the Negotiations and the Statute,
70 Dewes, 1998 p378
71 ICJ Advisory Opinion on the legality of the threat or use of nuclear weapons, Oral testimony of Malaysia, November 7, 1995
72For more on the rationale and practicality of engaging with NWS, see 'Dialogue with Decision-Makers: Everyone’s Guide to Achieving Change, Oxford Research Group, Oxford, September 1999
73Current disarmament issues under debate include; no-first-use, anti-ballistic missiles, deployment of non-strategic nuclear weapons, security assurances, nuclear experiments and fissile materials.
74Such questions could include: How could nuclear disarmament be effectively verified? How could a nuclear weapons free regime be enforced? What security mechanisms would States need to abandon deterrence? What economic implications are there in complete nuclear disarmament? How can nuclear weapons be safely destroyed? What is the role of nuclear research in a nuclear free regime? Can nuclear weapons be un-invented? See Security and Survival, 1999, Section 3: Comments and Critical Questions.
75See Security and Survival, 1999, Section 2-61 for a number of these examples.
76Nuclear Weapons Convention Monitor, No 1, April 2001 and No 2, April 2002. IPPNW, Cambridge, USA
77See Getting to Yes: Negotiating Agreement Without Giving In , Roger Fisher and William Ury, Penguin Books 1981.
78See Abolition 2000: Handbook for a World Without Nuclear Weapons,IPPNW 1995