I gratefully acknowledge the contributions of Fredrik S. Heffermehl, Master of Laws, to the present article.
In the 20th Century more people died in wars than in all wars in all previous centuries taken together.1 The common hopes of those who organized the first big international peace conference at the Hague in 1899 were not fulfilled.2 Not only because of all the lives lost. Since the Second World War, the pursuit for security with military means, has placed the world under a constant threat of total extinction. Around 200,000 people were instantly killed by the atom bombs that hit Hiroshima and Nagasaki in August 1945. Around 100,000 were severely injured, but survived for shorter or longer periods. Today the nuclear powers have constructed new types of bombs that are many thousand times more powerful than those that fell over Japan in 1945. A major part of the total arsenal can be released in 45 minutes. The brutal truth is: Life on earth as we know it today can be eliminated in a matter of hours.
In the 20th Century there has also been great legal progress concerning peaceful resolution of international conflicts. The United Nations Charter of 1945 prohibits threat or use of force against sovereign states, except in self defense.3 Only if international peace is at stake, international law permits military action against states. But this is a measure reserved for the United Nations exclusively, on the basis of a decision in the Security Counci14 or by the General Assembly by a 2/3 majority .5
In the 20th Century a number of treaties have also been established with the purpose of reducing suffering in wars. The most important are the Hague Conventions 1907,6 the UN Genocide Convention,7 The Geneva Conventions 19498 and the conventions, which prohibit chemical and biological weapons.9 The core rules in these conventions are today customary international law -- the customs and laws of war -- which all states are bound by, regardless of whether they have ratified the conventions or not. There is still no convention which prohibits nuclear arms. This does not mean that nuclear arms are not regulated in international law. International Court of Justice (ICJ), established by the United Nations in 1945, submitted an advisory opinion July 8, 1996, which concludes that the customs and laws of war or -- in The Court's terminology -- international humanitarian law -- does apply to nuclear weapons (see below).
The Nuremberg Tribunal established the rule that the individual is responsible for not acting contrary to the customs and laws of war.10 Orders to commit acts, which are not in accordance with the customs and laws of war, do not justify the act. The individual is still responsible under international criminal law. This applies also in situations when the life of the acting individual is at risk.
Following the genocides in former Yugoslavia and Rwanda the United Nations established criminal tribunals (the first in Hague, the second in Arusha, Tanzania) to deal with serious crimes against humanity.11 On July 17,1998 more than 100 states signed the treaty that establishes the permanent International Criminal Court (ICC) -- which will be effective as soon as 60 states have ratified.
World wide civil society and its organizations (CSOs) work permanently to secure peace by different means, including legal regulations. One important accomplishment of this work was the decision by the UN General Assembly to request an advisory opinion of the ICJ regarding the question of the legality of nuclear weapons according to international law. This had not happened without the persistent, systematic work of peace@organizations over a long time. Particularly important was the work of the International Peace Bureau (IPB), International Physicians for Prevention of Nuclear Weapons (IPPNW) and International Lawyers Against Nuclear Arms (IALANA).
Another example of important legal work by peace organizations, is a detailed proposal for a treaty which prohibits nuclear arms, designed much like the treaties which prohibit chemical and biological weapons. IALANA's professional legal contributions have been essential. The proposal has gained status as an official UN document. It will play a major role following the UN resolution to start negotiating total nuclear disarmament, which passed the General Assembly on November 20, 2000. Such negotiations are specifically required by the ICJ' s advisory opinion, where a unanimous court declared:
"There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disamlament in all its aspects under strict and effective international control" (para. 105 F).
May 11-15, 1999 some 10,000 people, who represented a great number of peace organizations from all over the world, gathered at the Hague conference of the Hague Appeal for Peace, together with many representatives from governments and the United Nations. The conference was an anniversary celebration for the first world wide peace conference in 1899. The proclaimed aim of the conference was to make the necessary preparations to abolish war in the 21st Century based on international law and the principles laid down in the Charter of the United Nations and subsequent developments.12
But there are also features in contemporary development, which give reason for deep concern when it comes to the role of law in questions of peace and war. Let me mention three:
Representatives of NATO countries claim that both the war against Yugoslavia and the new strategic concept are in accordance with international law. This is highly questionable. 15 The UN Charter Art. 2 no.4 prohibits use of force against sovereign states. The UN Charter Art. 51, which is referred to in the NATO treaty Art. 5, allows a state to wage war in self-defense when its territory is attacked by another state. It does not allow attack to pursue other interests or values. Since NATO's new concept clearly envisages such actions, it is a violation of international law.
NATO circles have in recent years referred to international law as continuously changing -- it is "dynamic" -- and held that NATO's attack on Yugoslavia and NATO's new concept are examples that illustrate just that point. In other words: NATO claims that international law was changed as a result of the very fact that NATO acted contrary to international law as it was at the time.
It is self-evident that international law to a great extent is dependent on international practice, so-called international custom. But this does not mean that international law changes overnight. International customary law is -- as the main rule -- changed by stable, repeated practice over a long time. In any event: For a custom to be elevated into customary law, it has to be of high quality. In my opinion none of these requirements are fulfilled in the case of NATO' s attack on Yugoslavia and NATO's new strategic concept.
The minority of four judges had technical-legal reasons for voting against the opinion. Their voting was in reality not an answer to the question asked.
It has been said -- referring to the seven to seven votes -- that the Court did not declare nuclear weapons illegal under international law. Such an opinion has no basis in the Court's decision, for the reasons I have already mentioned. Let there be no doubt: None of the 14 judges supported the view which the nuclear powers actually claim: that the threat to use or the actual use of nuclear weapons is permitted under international law.17
The president of the Court, Mr. Bedjaoui, said in his separate declaration, attached to the opinion of the Court as such:
"Nuclear weapons, the ultimate evil, destabilize humanitarian law, which is the law of the lesser evil. Thus, the very existence of nuclear weapons is a great challenge to humanitarian law itself. -- One would lack the most elementary prudence (which in this connection can be rephrased: one would violate elementary wisdom, my addition), if one placed the survival of the State above all other considerations, especially above the survival of humanity itself."18
(1), (2) and (3) are in my opinion examples of the sad fact that the most fundamental rules in international law are being respected when a state or an alliance of states has interests that cannot be pursued without braking international law. The breaches are concealed behind "interpretations" which indeed enjoy little support in the sources of international law.
A question of its own is whether or not violations of international law are criminal acts as well. Yugoslaviafs recent past may give us some answers. Criminal aspects of the consequences of NATO's attack on Yugoslavia have been dealt with in a report to the Prosecutor of the Criminal Court of the Former Yugoslavia. Based on the assumption that approximately 495 civilians were killed and 820 civilian wounded, the committee concluded "there is simply no evidence of the necessary crime base for charges of genocide of crimes against humanity".19 Based on this report the Prosecutor decided not to investigate any aspect of NATO's attack on Yugoslavia.20
The decision of the Prosecutor did not include an opinion on whether the attack on Yugoslavia as such was legal under international law. This question is pending before the ICJ, which on February 23, 2001, granted Yugoslavia a respite of one year to submit written arguments to the Court. Accordingly we can expect a ruling from the Court in 2002, at the earliest.21
If the ICJ concludes that NATO's attack on Yugoslavia was not permitted under international law, the question arises whether the leaders of the NATO countries are punishable under their respective national penal codes. The starting point is, of course, that causing death, injuring persons and destruction of property is punishable under national law if the war is not legal under international law. In this particular case there might be circumstances that nevertheless lead to the conclusion that the acts were not criminal under national law. I find it difficult, however, to imagine any such exonerating circumstances.
The future is uncertain, as it has always been. The risk that the world in the 21st Century will be struck by even more disastrous wars than the world went through in the 20th Century is uncomfortably high. In such a situation it is the duty and the privilege of lawyers and legal scholars to contribute to the development of international rule of law to prevent this scenario. We must not permit ourselves to be confused by the contended legitimacy of violent acts by our leaders on behalf of all of us.
What about the leaders -- political as well as military -- who are responsible for the existing arsenals of nuclear arms? Are they legally responsible for their behavior and acts?
The Nuremberg principle -- in short -- is that no one will avoid personal responsibility for criminal acts by claiming that he or she acted under orders of their government or superior officers. Nuclear arms constitute, by their existence and inherent nature, a violation of international law, which is punishable under international law. Their use would mean violation of humanitarian law on a number of points. It would mean crimes against humanity and genocide. This means that political leaders as well as military leaders are subject to punishment according to international law if they involve themselves in activities that lead to use of nuclear arms. From this it follows that leaders -- civil and military -- in states, which rely on nuclear arms in their military strategy, like the NATO states and the nuclear powers, are obliged to work actively to get rid of nuclear arms. If they don't, they are breaking international law which in a given case can also be regarded as a most severe criminal act.
Of course, as long as Armageddon has not occurred, this is not a realistic approach. In the real world today, we must rely on negotiations in order to reduce and eventually get rid of all nuclear arms, for all times. I will remind the reader that the International Court of Justice unanimously stated:
"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" (para. 105).
The problem of effective international control is enormous. It is not enough with so-called "technical verification", which means inspection by authorized officials to secure that a future ball on nuclear arms is not broken. To obtain the highest degree of certainty that no state or institution violate the obligation not to produce or store nuclear arms, Joseph Rotblat, the distinguished Nobel Prize winner in 1995, has supported the idea of so-called "societal verification". The core in this concept is that every citizen shall have a right and an obligation to report any violation of the ball on nuclear weapons, and that the United Nations and all states shall have an obligation to protect citizens who fulfil their duty to report.
Today this is fiction. People who work to ban all nuclear weapons are suppressed by governments. The most famous at the moment is the Israeli Mordechai Vanunu. He has suffered 14 years in prison, more than eleven of them in total isolation, for his disclosure of the fact that Israel has nuclear weapons. The Israeli government seems to intend to deny him his freedom for another four years. Tomorrow (if the world is not blown to pieces before it happens) international law will protect courageous individuals like Mordechai Vanunu. Acts like those of Vanunu will then no longer be a crime or a matter of treason, but the exact opposite.
In the meantime, it gives deep meaning to be part of the struggle for a world free from nuclear arms under the effective protection of international law.