Judge Weeramantry -- who in 1996 was part of the panel of judges who rendered the ICJ Advisory Opinion on the legality of the threat or use of nuclear weapons -- explains that the Advisory Opinion was a historic event on the road to the abolition of nuclear weapons because it laid down, categorically and for the first time, the fact that any of the various principles of international law containing customary international and International Humanitarian Law and incorporated in a series of about 15 different rules, was strong enough to outlaw nuclear weapons altogether.

The most important features of the opinion as put forward by Judge Weeramantry are:

• The opinion ruled upon the rich repository of principles of humanitarian law contained in customary international law. There is no need for a special treaty to ban nuclear weapons, an argument aduced before the court by some of the nations supporting nuclear weapons; on the contrary, the weapon already stands condemned by the universal principles of law which are contained in that rich repository of principles which we call customary international law.
• The only little opportunity for their use which the Court, by a majority of one, left open was in the case of extreme self-defense where the very survival of a state was at stake. In regard to that situation, the Court decided not to express an opinion. But there were dissenting opinions. Judge Weeramantry was among the dissenters and said that there should be an absolute prohibition of nuclear weapons in all circumstances.
• The unanimous statement by all the ICJ judges that there was an obligation on the nuclear powers to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects, under strict and effective international supervision.

In this conference, Dr. Sidel provides the audience with a presentation on the effects of nuclear weapons; these effects were taken into account by the ICJ upon rendering its Advisory Opinion. He presents such effects in three summarizing points:

1. These weapons have a potential explosive force thousands or even millions of times greater than conventional detonations...
2. At the time of detonation temperatures comparable to the interior of the sun are generated...
3. These weapons release ionizing radiation into the environment...

Dr. Corell presents the developments over the last decades in the field of international law, including international criminal law; he stresses the need for an international order based on the rule of law and highlights the role of international tribunals, and in particular the ICJ.

Dr. Corell takes the UN Charter as a point of departure, stressing that it is the highest treaty in the world, superseding states’ conflicting obligations under any other international agreement. The codification work within the UN has resulted in a series of international treaties and conventions, which cover almost every aspect of human life. Among them, those directly related to International Human Rights Law have become more and more important. This field of international law has had a tremendous impact on the constitutional law in almost every state in the world community...

From the view point of international peace and security, it is necessary to mention the UN Convention on the Law of the Sea, which has played a significant role since its entry into force. He refers to the 1959 Antarctic Treaty as an example of cooperation among states even in difficult times. International trade law is also connected to the question of peace and security...

Public International law will be of increasing importance in a changing world... The role of the ICJ and of other international dispute settlement mechanisms will be even more critical.

Of special concern is the decision of the United States to give its back to multilateralism, a decision materialized in the US National Security Strategy adopted in 2002...

She concentrates on some of the factors that appeared to motivate some of the ICJ judges to come to certain conclusions as compared with other conslusions. Louise Doswald-Beck explains that the basic customary law principles under which you evaluate whether a weapon can be lawfully used or not, are the ones which provide for the distinction between competence and non competence (whether weapons are able to distiguish between competence and non competence) and the prohibition of weapons that cause superfluous injury or unnecessary suffering. In this regard, she refers to the findings of Judge HIGGINS in relation with the problem of evaluation and analyses it.

The court found that the fundamental rules of international humanitarian law, in particular the prohibition of weapons that cause superfluous injury or unnecessary suffering and are inherently indiscriminate, applied to nuclear weapons. She argued that the justifications for the retention of nuclear weapons provided by the nuclear weapon states therefore suffered from one shortcoming: that their effects were always unpredictable due to the incalculable behaviour of secondary radiation. If the effects of the weapon once targeted accurately at a military objective are uncontrollable that makes that weapon indiscriminate.

There are a number of basic principles of customary international law that are also involved when considering the effects of nuclear weapons, among them:

• The prohibition against the indiscriminate killing of civilians
• The prohibition against against causing of cruel and unnecessary suffering
• The prohibition against genocide
• The prohibition against environmental damage
• The prohibition against intergenerational damage
• The prohibition against the use of noxious gases and analogous materials
• The prohibition against causing damage to neutral states, etc.

Judge Weeramantry also summarizes the consequences of nuclear weapons on the health and the environment in order to show that those are the consequences that have to be examined in the light of the applicable principles of international law, taking also into account the usages established among the civilized peoples and nations, the laws of humanity and the dictates of the public conscience.

The effects of nuclear weapons are clearly foreseable, and in that case, the rules just mentioned come into authomatic operation.

He provided further analysis of the concept of weapons that are inherently indiscriminate and the principle of unneccesary suffering, mainly in the light of Protocol I of 1977.

The Court clarified the customary laws and from that clarification it follows that evaluation before hand is possible for specific nuclear weapons.

Hans Lammerant argues that the fact of the ICJ reserving its judgement on the possible use of nuclear weapons in an extreme circumstance of self-defence when the survival of a State is at stake, has to be interpreted in accordance with the body of the Advisory Opinion. This means that the rules of the UN Charter need to be met.

Peter Weiss recalls that the classic definition of self-defense was formulated after the Caroline incident by Daniel Webster, US Secretary of State under President William H. Harrison, who said that the necessity of self-defense must be "instant, overwhelming, leaving no choice of means, and no moment for deliberation". That has remained the classic definition of self-defense in International Law for almost 200 years.

This principle is invoked from time to time but it has undergone almost a complete transformation, which Peter Weiss demonstrates during his presentation. He points out the paragraphs of the Advisory Opinion concerning the concept of self-defense and gets to the question of what can you do in self-defense.

The overarching responsibility to use, if ever, nuclear weapons in accordance with the principles of humanitarian law is highly applicable to the principle of self-defense and in fact tends to negate much of the "genuflections" toward the principle.

The Caroline principle has been buried by something called "preemptive war", which is one of those linguistic acrobatics designed to hide the true intent of the policy...

Steven Haines provides a different approach to the discussion. He puts international law into the context of the international system, and the same as regards nuclear weapons. International system is essentially about patterns of power and how they develop over time. International system is changing and the nature of war has been changing too. The normative dimension of the international system is very important in a way that it probably was not in the 19th century... Warfare is something that any sane person wants to see reduced both in terms of quantity and in intensity, and that is what he personally is committed too.

Steven Haines argues that nuclear deterrence effectively reduced the possibilities for conventional wars in some concrete cases; he personally believes that nuclear weapons are responsible for having kept a reasonable peace in Europe for over half of a century and that nuclear weapons are not 100% a bad thing. Deterrence and reduction are at the core of the speaker's analysis.

He focuses on the matter of nuclear deterrence and its relationship to self-defense. The speaker starts with a proposition that nuclear deterrence is in fact state sponsored nuclear terrorism, and this is very relevant to the current war on terror. All the nuclear states are vulnerable to the charge of hypocresy. Nuclear deterrence entails a fundamental moral deception. It is also the antithesis of maintaining international peace and security. Another intrinsic part of nuclear deterence dogma is the generation of hostility and mistrust...

He recalls that the ICJ in its Advisory Opinion, determined unanimously that any threat or use of nuclear weapons must conform with international humanitarian law, of which the Nuremberg principles are a part; it also confirmed that the principles of the law of armed conflict apply to nuclear weapons... and that in para. 95 the ICJ concluded: "In view of the unique characteristics of nuclear weapons... the use of such weapons in fact seems scarcely reconcilable with respect for such requirements."

John Burroughs talks about the disarmament obligations identified by the ICJ. But he first points out that the extreme circumstance provision on the Court's opinion is really wrong and unacceptable. He also recalls that Judge Weeramantry dissenting opinion addresses the matter of deterrence.

John Burroughs stresses that the disarmament obligation as interpreted by the Court has been directly endorsed by nearly all states. He argues that the outcomes of the 1995 and 2000 Review Conferences of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) provide a legal buttress to the disarmament obligation.

He refers to legal cases in which the obligation of "good-faith" negotiation has been taken into account.

The speaker contends that the Court statement of the obligation of good-faith negotiation in the context of nuclear weapons was unusually strong, not to say unprecedented, and he explains the three factors behind the Court findings as regards this question.

At a minimum good-faith would require that if one set of commitments towards meeting a legal obligation and a policy objective is discarded an alternative course should be proposed... One set of commitments has been adopted in the 2000 Review Conference (the 13 practical steps), which was repudiated by the US and no alternative course was proposed... This is a lack of good-faith.

The results of the 1995 and 2000 review conferences decisively inform the proper interpretation of the disarmament obligation, this is why the speaker analyses the key elements of the 13 practical steps in terms of the implementation of that obligation.

The law is very developed regarding the requirements for good-faith negotiation for nuclear disarmament. The state of compliance is extremely poor, as stated in the Blix report...

The Blix Commission report is the departure point for Jackie's presentation. On june 1st, 2006 Han Blix released its final report entitled Weapons of Terror: Freeing the World of Nuclear, Biological and Chemical Arms. Jacqueline highlights the main points of the report and its significance. The Blix report acknowledges the poor record of the nuclear states in implementing disarmament and negotiating in good faith as required of them under the NPT.

The lack of implementation demonstrates a lack of good faith, and this is so specially in the case of the United States. Jacqueline provides the audience with a short synopsis of the current US policy as regards nuclear weapons. In this context, she refers to the preemptive policy as regards Noth Korea promoted by the democrat William Perry, US Secretary of Defense under Clinton...

She calls on European States to implement the ICJ Advisory Opinion and highlights the parliamentary dimension of the questions being discussed at the Conference. She refers to the "Written declaration on the withdrawal of US nuclear weapons from European territory before the end of 2006", that she co-sponsored together with MEP Angelika Beer. This Declaration calls on the US Government to present a clear and precise timetable and action plan for the withdrawal of nuclear weapons from Europe before the end of 2006... In order to achive these goals the pressure from the peace movement and civil society is crucial.

Kate Dewes speaks on the development of the World Court Project, from its early gestation in New Zealand to the delivery of the ICJ Advisory Opinion in 1996. She starts by paying tribute to the oldest who have passed away and who played a significant role in this project: Sean MacBride and Harold Evans.

The World Court Project grew out of an initiative by retired District Court Judge Harold Evans following meetings with international lawyer Richard Falk in Christchurch, New Zealand, in 1986...

Kate describes the struggle to engage the support of civil society and a majority of sympathetic states in the UN in the face of outright opposition and attempted blockage from the nuclear states...

Kate concludes with a quote from Michael Christ, IPPNW Director, which addresses what she refers to as "People Power": We created a new political forum, a new political opportunity which didn't exist before until citizen's groups decided that this was going to happen and we created it out of nothing. It was an idea… it is WE… it is not just lawyers, the doctors or the Peace Bureau... It is no one group... it has been like a thousand points of light.

Phon van den Biesen points out that recruiting the young should be a priority in the agenda of the peace movement. They have to know that they cannot afford to leave the struggle against nuclear arms to the older generation.

Talking about the role of the ICJ in the international system and compliance with its judgements, he explains the twofold role of the ICJ: to settle in accordance with international law the legal disputes submitted to it by States, and to give advisory opinions on legal questions referred to it by duly authorized international organs and agencies.

He explains both types of activities, showing their different nature, and describes the Advisory Opinion procedure. Despite not being under a legal obligation to deliver an Advisory Opinion, the Court has expressed as its principal view that a request to deliver an Advisory Opinion should in principle never be refused, but certain thresholds need to be met: the question being asked has to be a legal question and it should be about issues which are indeed within the scope of the activities of the body of the UN organ requesting the opinion, the latter being a formal requirement for all UN bodies other than the General Assembly and the Security Council...

Phil Shiner speaks as a UK lawyer with practical expericence of trying to litigate issues arising from the UK's possesion of a nuclear weapons system.

He draws the following lessons from his experience over the last few years in several UK courts, at all levels of the judiciary:

- In the UK there is no question whatsoever that a court rule on whether the UK's possesion of its trident nuclear missile system or any decision to replace is, or is not, in breach of international law... This is what is known in the UK as the principle of justiciability...

- There are four areas in which the court may be prepared to intervene: a) When there is actual bad faith on the part of ministers; b) When basic procedural duties have been breached... c) When a UK statute that requires the courts to review that type of high foreign policy or defence decision can be applied; d) When human rights issues arise: If Human Rights issues are engaged, than the decision maker has to strike a balance between the human rights of the persons concerned and the security issue.

- Litigation in the UK, based on the ICJ Opinion, is likely to fail... New arguments can be made and can be more successful, such as those used in a case in the UK pertaining the manufacturing of nuclear weapons... Activists relying on the criminal defence of necessity are bound to fail too. The speaker proposes a series of arguments which according to his practical experience have appeared to be more successful and explains the most recent outcomes in the UK, such as the House of Lords position in the case Jones (Respondent) v. Whalley (Appellant) (Criminal Appeal from Her Majesty's High Court of Justice) and how it can affect future cases...

Peter Becker speaks on the June 2005 ruling of the highest German Federal Court of Administration in a case concerning a German army officer who opposed an order to work for logistical support within the framework of the war of the UK and the USA against Iraq. By obeying this order the officer feared that he would in effect be supporting the war. The officer won the case on appeal.

Peter Becker presents the audience the main principles of the decision and how this decision may be used in other jurisdictions. The court outlines the cases in which a military order is not binding... A soldier does not need to obey an order that is contrary to the fundamental right of freedom of conscience. A crucial argument contained in this ruling is that human rights and the basic principles of international law are in the basis of the fundaments of conscience.

Otto Jaeckel speaks on the freedom of conscience too. Talking about the binding character of the Advisory Opinion, he refers to a 1952 decision of the German Federal Constitutional Court, in which it concluded that the material content of an advisory opinion is equitable with a judgement...

He makes a concrete reference to cases concerning the enforcement by German courts - in different degree - of the 1996 ICJ Advisory Opinion.

Anabel Dwyer argues that nuclear weapons are "fundamentally illegal, criminal and immoral" and that this position is supported by the ICJ opinion.

"We have a duty to participate in good-faith disarmament processes". Nuclear disarmament is the remedy for the crime of the threat or use of nuclear weapons. The debate, according to Anabel, is what is the rule of law: is it greater use of force or is it agreement and consensus?. The real decision of the ICJ opinion was that law is not that which can be enforced by force, law is agreement. The real "security" argument is caring for each other and our common environment.

Resisters in the US have exercised their duty to participate in ways to solve the problem of the illegality of nuclear weapons. The speaker then points out a couple of cases in US courts that dealt with these matters, such as the case of the three Dominican sisters who on October 6th., 2002 carried out a citizen inspection of a Minuteman III missile silo in Northern Colorado, on the first anniversary of the U.S. bombing campaign in Afghanistan. They have committed their lives to non-violent nuclear disarmament. Anabel Dwyer coordinated the defense team.

The three sisters were convicted; the trial judge wrote a very embarrassing order, misunderstanding the law, based on real denial of the facts, a denial of the grave reality of dangers...

Five lawyers from IALANA Italy filed a lawsuit before the Civil Court of Pordenone against the United States of America, in the person of the Secretary of Defense, Donald Rumsfeld.

Antonella Pecchioli introduces the facts regarding the case: The military facility at Aviano has been in existence since 1954; among other items, this facility hosts a nuclear weapon depot housing 50 nuclear weapons, including B61-3, B61-4 2 B61-10 weapons... According to a 1960 secret Convention, the Republic of Italy and the U.S. agreed that the facilities of the Airport at Aviano were to be made available to the U.S. Armed Forces within the U.S. strategic nuclear program...

Alyn Ware's presentation is drawn form a paper that he wrote examining the question of returning to the ICJ on the legality of the threat or use of nuclear weapons and that is the result of two years of research and consultations organised from the IALANA Pacific office. He addresses the following questions:

• Why return to the ICJ for a follow-up opinion
• What type of case, whether contentious or advisory
• What questions people consider that need to be included in a return to the Court
• What outcome can be expected
• What progress has been made to get to the Court so far
• What are some of the political questions surrounding a return to the Court

For Jacqueline Cabasso, the question of returning to the Court raises a fundamental question about something going on in the US, which is the very viability of the United Nations, because this organization is under attack by the US goverment... Campaigning for the abolition of nuclear weapons is not enough in todays world... But is return to the ICJ a useful and viable vehicle for raising public awareness about the serious nuclear dangers that we all face? Getting another legal opinion from the Court would not solve the problem, there is also the corporate benefit factor...

The questions posed to the court must be easily understood by the public, by the judges, by the members of the General Assembly and by members of national legislatures, and the questions must be framed in a way so as to guarantee a favorable opinion, bearing in mind the incredible US intimidation involved.

Peter Weiss agrees with Jacqueline Cabasso that any return to the Court has to be done in a manner that will prompt diplomats at the UN to go along with it, that will appear in a clear way to the public opinion, and that will be likely to result in a favorable outcome. The way to do that is to focus on the failure of the nuclear weapons states to even begin to comply with the general good-faith obligation put forward by the Court in its Opinion. That should be the only question asked of the Court. Asking other questions, such as the question of nuclear sharing, may have certain disadvantages: they are complicated, they can lead to a back and forward discussion and more importantly, they would serve to delay the commencement of the negotiations.

A favorable decision from the Court, namely one saying clearly that nuclear weapons States are in blatant breach of their obligation to commence negotiations in good-faith would be a further impetus for the movement, and that is all it will be.

His speech is preceded by Cora Weiss' (President of the International Peace Bureau) introduction to the topic being discussed: The question of what civil society can do about preserving the world for everyone's children and grandchildren.

Before giving the floor to the Mayor of Hiroshima, Cora Weiss recalls how the doctors came together with the lawyers and the people and mobilized public opinion towards the ICJ outcome. She also explains the audience how the Hague Appeal for Peace was born. All of these actions form part of the history of the people's struggle for peace and a nuclear free world.

Dr. Tadatoshi Akiba begins by thanking the organizers of the conference and its sponsors. Nuclear weapons are the most infernal invention ever to come from the mind of man. Obliterating a entire city is a crime against humanity. The threat to do so is also ilegal.

Cities are not targets and they should not be targeted.

Dr. Akiba presents the second phase of the 2020 Vision Campaign of Mayors for Peace, focused on the good-faith challenge, which underlines the pledges made by the nuclear weapons states to achieve nuclear disarmament. There are two main arenas in which good-faith is absolutely needed: in the diplomatic arena and in the reliance upon nuclear weapons by nations or alliances. If nations are working in good-faith to eliminate nuclear weapons then they should not be making long term investments in nuclear weapons system and they should be curteiling the threat or use of nuclear weapons.

In his second intervention, Phil Shiner addresses the issue of how to build a groundswell of public opinion. But he first makes a reflection on the importance of international law in a post 9/11 world, specially vis-à-vis the US efforts, and also the UK efforts, to undermine the UN system under the guise of combatting terrorism; such efforts have led the Security Council to pass resolutions which result in a breach of international human rights law...

Rather than going back to the ICJ, a much better use of international law would be to try and undermine the legitimacy of countries like the UK and the US.

Lawyers and the public should be interested in nuclear weapons; one way of attacking the lack of interest is to use international law in a more crative way... Within this context he shares with the audience some of the initiatives undertaken by Peacerights, such as the October 2002 People's Tribunal on whether one could go back to Resolution 678 on the situation between Iraq and Kuwait, the issue of "the revival doctrine" being at stake here.

A second people's inquiry that they had at Peacerights was a War Crimes Tribunal on the invasion and occupation of Iraq, as a result of which a formal complaint was made to the ICC prosecutor... The third people's tribunal is in fact a report arising from a November 2004 Inquiry into the legality of Trident, its possible replacement and the Mutual Defence Agreement between the UK and the USA... These type of initiatives, if carried out with authority and due process can have a significant political effect.

Irenah Klink addresses the audience as a representative of this german organization, a group of young people who are unwilling to "silently tolerate an intentional disregard for the prohibition of war as enshrined in International Law." The awareness of the youth as regards the dangers the nuclear weapons is unfortunatelly rather small, that is why Irenah stresses that they "do not want to remain silent". International law is not a law for politicians and governments, it is a law for all the People.

Activists engaged in disarmament and "nuclear crime prevention" activities use international law to defend themselves.

To date (July 2006) there have been over 2240 arrests, over 500 trials, and over 2120 days have been spent in prison...

The trials remind everyone that the law and legal systems themselves have no legitimacy if they do not defend the innocent and the weak... The Scottish legal system, confronted with these cases, have had a historic opportunity to to back the rule of law, but it refused to do so and instead it resorted to irrational arguments.

However, it is important also to remember that some legal points have been won: the consideration of a a rule of customary international law as Scottish law, or the availability of the defense of necessity, among others.

Angie Zelter also summarizes the main arguments used by "the mass" of negative rulings and she highlights that they did not even address the activists' claims that trident is illegal under UK domestic law, and not only under international customary law. In a very clear way, she lists the different aspects of the problem that the courts have failed to rationally address and their harmful consequences.

The judges' opinion is based upon the same underlying lie as the UK government's position at the ICJ, the same lie as deterrence is based upon: That deterrence is just a bluff and that we will never use our nuclear weapons, thus there are lawful. The opinion is based upon the outrageous justification that threatening mass destruction is lawful in times of peace and only becomes unlawful in times of war when one knows the exact target... this leaves them able to hang on to their nuclear deterrence justification...

"We deserve a better legal system than this. The basis of Western democracy is that goverments must be subject to the rule of law and the international laws on aggression and the conduct of war is vitally overarching..."

From his "Bomspotting experience", Hans Lammerant talks about actions and legal arguments and how to combine them.

George Farebrother, World Court Project UK emphasised the moral imperative underlying the concept of "The Public Conscience" and the Affirmations of Freedom from Nuclear Weapons which will be collected from citizens worldwide as evidence of their principled opposition to nuclear weapons.

The concept of "Public Conscience" -- the idea that there is a law based on a natural sense of justice common to humanity -- is in the basis of the World Court Project... In fact, the World Court Project UK describes itself as "The Public Conscience in Action".

All of the topics being discussed at the Conference appeal to our natural sense of justice and the peace movement has to be able to transmit this to the public in general. From this perspective, the follow-up to the work that led to the ICJ opinion could be based on the obligation of "good-faith", which can be easily understood and transmitted to the people.

The Affirmations of Freedom from Nuclear Weapons campaign tries to convey this message to the public, by having people saying "I do not accept that nuclear weapons can protect me, my country, or the values I stand for." It is the word "values" which links the Affirmation with The Public Conscience. The Affirmations are not petitions. The Affirmations are a personal expression of everyone's basic values which, through the Public Conscience, has standing in law...

Cora thanks all the speakers for their very lively contributions and life long commitment towards a world free from nuclear weapons. She also issues an invitation to everybody to attend the IPB annual conference and assembly, which will be held in September 2006 in Helsinki under the title: "Sustainable disarmament for sustainable development".

Finally Cora thanks the two MEP's who made the Conference possible and introduces Gisela Kallenbach, the last speaker of the Conference.

Gisela Kallenbach is a German Member of the European Parliament and belongs to the Group of the Greens/European Free Alliance. Together with MEP Caroline Lucas, she co-sponsored the conference on behalf of the Greens Group in the European Parliament.

Gisela Kallenbach closes the Conference with an encouraging message addressed to the peace activists. The Conference has provided her with an overview of actions that need to be taken. Lawyers and parlamentarians have also to work on the "good-faith" obligation...

She invites everyone present at the conference to let the Greens know of any idea regarding political action that could be undertaken at an European level. However majorities are needed and in this respect they need the peace movement's support.

|*] This conference took place on 6-7 July 2006 in the European Parliament in Brussels. It marked the tenth anniversary of the International Court of Justice (ICJ) Advisory Opinion on the legality of the threat or use of nuclear weapons. It was organised by the International Physicians for the Prevention of Nuclear War (IPPNW), Abolition 2000 Europe, the International Association of Lawyers Against Nuclear Arms (IALANA), and the International Peace Bureau (IPB). It was sponsored by MEPs Gisela Kallenbach and Caroline Lucas on behalf of the Green/EFA Group in the European Parliament. [Back]