The Future of International Law (Part II)


Human Wrongs Watch

By John Scales Avery*

Abstract

After the invention of agriculture, roughly 10,000 years ago, humans began to live in progressively larger groups, which were sometimes multi-ethnic. In order to make towns, cities and finally nations function without excessive injustice and violence, both ethical and legal systems were needed. Today, in an era of global economic interdependence, instantaneous worldwide communication and all-destroying thermonuclear weapons, we urgently need new global ethical principles and a just and enforcible system of international laws.

Part I dealt with: What is law?, Magna Carta, 1215, The English Bill of Rights, 1689, The United States Constitution and Bill of Rights, 1789, Kellogg-Briand Pact, 1928, and United Nations Charter, 1945. 

**Audience of the

**Audience of the “Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo” | Author: Lybil BER | Wikimedia Commons

Part II: International Court of Justice, 1946

The International Court of Justice (ICJ) is the judicial arm of the United Nations. It was established by the UN Charter in 1945, and it began to function in 1946.

The IJC is housed in the Peace Palace in the Hague, a beautiful building constructed with funds donated by Andrew Carnegie. Since 1946, the IJC has dealt with only 161 cases. The reason for this low number is that only disputes between nations are judged, and both the countries involved in a dispute have to agree to abide by the Court’s jurisdiction before the case can be accepted.

Besides acting as an arbitrator in disputes between nations, the IJC also gives advisory opinions to the United Nations and its agencies.

An extremely important judgment of this kind was given in 1996: In response to questions put to it by WHO and the UN General Assembly, the Court ruled that “the threat and use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and particularly the principles and rules of humanitarian law.”

The only possible exception to this general rule might be “an extreme circumstance of self-defense, in which the very survival of a state would be at stake”.

But the Court refused to say that even in this extreme circumstance the threat or use of nuclear weapons would be legal. It left the exceptional case undecided. In addition, the World Court added unanimously that “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 international control.”

Source: ICAN-International Campaign to Abolish Nuclear Weapons

Source: ICAN-International Campaign to Abolish Nuclear Weapons

This landmark decision has been criticized by the nuclear weapon states as being decided “by a narrow margin”, but the structuring of the vote made the margin seem more narrow than it actually was.

Seven judges voted against Paragraph 2E of the decision (the paragraph which states that the threat or use of nuclear weapons would be generally illegal, but which mentions as a possible exception the case where a nation might be defending itself from an attack that threatened its very existence.)

Seven judges voted for the paragraph, with the President of the Court, Muhammad Bedjaoui of Algeria casting the deciding vote. Thus the Court adopted it, seemingly by a narrow margin. But three of the judges who voted against 2E did so because they believed that no possible exception should be mentioned! Thus, if the vote had been slightly differently structured, the result would have be ten to four.

Of the remaining four judges who cast dissenting votes, three represented nuclear weapons states, while the fourth thought that the Court ought not to have accepted the questions from WHO and the UN.

However Judge Schwebel from the United States, who voted against Paragraph 2E, nevertheless added, in a separate opinion, “It cannot be accepted that the use of nuclear weapons on a scale which would, or could, result in the deaths of many millions in indiscriminate inferno and by far-reaching fallout, have pernicious effects in space and time, and render uninhabitable much of the earth, could be lawful.”

Judge Higgins from the UK, the first woman judge in the history of the Court, had problems with the word “generally” in Paragraph 2E and therefore voted against it, but she thought that a more profound analysis might have led the Court to conclude in favor of illegality in all circumstances.

Source: ICAN-International Campaign to Abolish Nuclear Weapons

Source: ICAN-International Campaign to Abolish Nuclear Weapons

Judge Fleischhauer of Germany said, in his separate opinion, “The nuclear weapon is, in many ways, the negation of the humanitarian considerations underlying the law applicable in armed conflict and the principle of neutrality.

The nuclear weapon cannot distinguish between civilian and military targets.

It causes immeasurable suffering. The radiation released by it is unable to respect the territorial integrity of neutral States.”

President Bedjaoui, summarizing the majority opinion, called nuclear weapons “the ultimate evil”, and said “By its nature, the nuclear weapon, this blind weapon, destabilizes humanitarian law, the law of discrimination in the use of weapons…

The ultimate aim of every action in the field of nuclear arms will always be nuclear disarmament, an aim which is no longer Utopian and which all have a duty to pursue more actively than ever.”

Nuremberg Principles, 1947 

In 1946, the United Nations General Assembly unanimously affirmed “the principles of international law recognized by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal”. The General Assembly also established an International Law Commission to formalize the Nuremberg Principles. The result was a list that included Principles VI, which is particularly important in the context of the illegality of NATO:

Principle VI: The crimes hereinafter set out are punishable as crimes under international law:

  1. a) Crimes against peace:
  • Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
  • Participation in a common plan or conspiracy for accomplishment of any of the acts mentioned under (I).

Robert H. Jackson, who was the chief United States prosecutor at the Nuremberg trials, said that “To initiate a war of aggression is therefore not only an international crime; it is the supreme international crime, differing from other war crimes in that it contains within itself the accumulated evil of the whole.”

Furthermore, the Nuremberg principles state that “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.”The training of soldiers is designed to make the trainees into automatons, who have surrendered all powers of moral judgment to their superiors.

The Nuremberg Principles put the the burden of moral responsibility squarely back where it ought to be: on the shoulders of the individual.

UN General Assembly session | UN Photo/Eskinder Debebe

UN General Assembly | UN Photo/Eskinder Debebe

The Universal Declaration of Human Rights, 1948

On December 10, 1948, the General Assembly of the United Nations adopted a Universal Declaration of Human Rights. 48 nations voted for adoption, while 8 nations abstained from voting. Not a single state voted against the Declaration. In addition, the General Assembly decided to continue work on the problem of implementing the Declaration.

The Preamble to the document stated that it was intended “as a common standard of achievement for all peoples and nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms.”

Articles 1 and 2 of the Declaration state that “all human beings are born free and equal in dignity and in rights”, and that everyone is entitled to the rights and freedoms mentioned in the Declaration without distinctions of any kind. Neither race color, sex, language, religion, political or other opinion, national or social origin, property or social origin must make a difference.

The Declaration states that everyone has a right to life, liberty and security of person and property. Slavery and the slave trade are prohibited, as well as torture and cruel, inhuman or degrading punishments.

All people must be equal before the law, and no person must be subject to arbitrary arrest, detention or exile. In criminal proceedings an accused person must be presumed innocent until proven guilty by an impartial public hearing where all necessary provisions have been made for the defense of the accused.

No one shall be subjected to interference with his privacy, family, home or correspondence. Attacks on an individual’s honor are also forbidden. Everyone has the right of freedom of movement and residence within the borders of a state, the right to leave any country, including his own, as well as the right to return to his own country. Every person has the right to a nationality and cannot be arbitrarily deprived of his or her nationality.

 ***The Universal Declaration of Human Rights, 1948 | Franklin D Roosevelt Library website | Wikimedia Commons

***The Universal Declaration of Human Rights, 1948 | Franklin D Roosevelt Library website | Wikimedia Commons

All people of full age have a right to marry and to establish a family. Men and women have equal rights within a marriage and at its dissolution, if this takes place. Marriage must require the full consent of both parties.

The Declaration also guarantees freedom of religion, of conscience, and of opinion and expression, as well as freedom of peaceful assembly and association. Everyone is entitled to participate in his or her own government, either directly or through democratically chosen representatives. Governments must be based on the will of the people, expressed in periodic and genuine elections with universal and equal suffrage. Voting must be secret.

Everyone has the right to the economic, social and cultural conditions needed for dignity and free development of personality. The right to work is affirmed. The job shall be of a person’s own choosing, with favorable conditions of work, and remuneration consistent with human dignity, supplemented if necessary with social support. All workers have the right to form and to join trade unions.

Article 25 of the Declaration states that everyone has the right to an adequate standard of living, including food, clothing, housing and medical care, together with social services. All people have the right to security in the event of unemployment, sickness, disability, widowhood or old age.

Expectant mothers are promised special care and assistance, and children, whether born in or out of wedlock, shall enjoy the same social protection. Everyone has the right to education, which shall be free in the elementary stages. Higher education shall be accessible to all on the basis of merit.

Education must be directed towards the full development of the human personality and to strengthening respect for human rights and fundamental freedoms. Education must promote understanding, tolerance, and friendship among all nations, racial and religious groups, and it must further the activities of the United Nations for the maintenance of peace.

A supplementary document, the Convention on the Rights of the Child, was adopted by the United Nations General Assembly on the 12th of December, 1989. Furthermore, in July 2010, the General Assembly passed a resolution affirming that everyone has the right to clean drinking water and proper sanitation.

Jean Kirkpatrick | Wikimedia Commons

Jean Kirkpatrick | Wikimedia Commons

Many provisions of the Universal Declaration of Human Rights, for example Article 25, might be accused of being wishful thinking.

In fact, Jean Kirkpatrick, former US Ambassador to the UN, cynically called the Declaration “a letter to Santa Claus”.

Nevertheless, like the Millennium Development Goals, the Universal Declaration of Human Rights has great value in defining the norms towards which the world ought to be striving.

It is easy to find many examples of gross violations of basic human rights that have taken place in recent years.

Apart from human rights violations connected with interventions of powerful industrial states in the internal affairs of third world countries, there are many cases where governmental forces in the less developed countries have violated the human rights of their own citizens.

Often minority groups have been killed or driven off their land by those who coveted the land, as was the case in Guatemala in 1979, when 1.5 million poor Indian farmers were forced to abandon their villages and farms and to flee to the mountains of Mexico in order to escape murderous attacks by government soldiers.

 ****An explosion caused by an Israeli airstrike in Gaza during the Gaza War. | Author: Al Jazeera | Wikimedia Commons

****An explosion caused by an Israeli airstrike in Gaza during the Gaza War. | Author: Al Jazeera | Wikimedia Commons

The blockade of Gaza and the use of drones to kill individuals illegally must also be regarded as blatant human rights violations, and there are many recent examples of genocide.

Wars in general, and in particular, the use of nuclear weapons, must be regarded as gross violations of human rights. The most basic human right is the right to life; but this is right routinely violated in wars. Most of the victims of recent wars have been civilians, very often children and women.

The use of nuclear weapons must be regarded as a form of genocide, since they kill people indiscriminately, babies, children, young adults in their prime, and old people, without any regard for guilt or innocence.

Geneva Conventions, 1949

According to Wikipedia, “The Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards if international law for the humanitarian treatment of war.

The singular term, Geneva Convention, usually denotes the agreements of 1949, negotiated in the aftermath of the Second World War (1939-1945), which updated the terms of the first three treaties (1864, 1906, 1929) and added a fourth.

The Geneva Conventions extensively defined the basic rights of wartime prisoners (civilians and military personnel); established protection for the wounded; and established protections for civilians in and around a war-zone. The treaties if 1949 were ratified, in whole or with reservations, by 196 countries.”

In a way, one might say that the Geneva Conventions are an admission of defeat by the international community. We tried to abolish war entirely through the UN Charter, but failed because the Charter was too weak.

Under the Fourth Geneva Convention, collective punishment is war crime. Article 33 states that “No protected person may be punished for an offense that he or she did not personally commit.”

Articles 47-78 also impose substantial obligations on occupying powers, with numerous provisions for the general welfare of the inhabitants of an occupied territory. Thus Israel violated the Geneva Conventions by its collective punishment of the civilian population of Gaza in retaliation for largely ineffective Hamas rocket attacks.

The larger issue, however, is the urgent need for lifting of Israel’s brutal blockade of Gaza, which has created what Noam Chomsky calls the “the world’s largest open-air prison”. This blockade violates the Geneva conventions because Israel, as an occupying power, has the duty of providing for the welfare of the people of Gaza.

Nuclear Non-Proliferation Treaty, 1968

In the 1960’s, negotiations were started between countries that possessed nuclear weapons, and others that did not possess them, to establish a treaty that would prevent the spread of these highly dangerous weapons, but which would at the same time encourage cooperation in the peaceful uses of nuclear energy.

The resulting treaty has the formal title Treaty on the Non-Proliferation of Nuclear Weapons (abbreviated as the NPT). The treaty also aimed at achieving general and complete disarmament. It was opened for signature in 1968, and it entered into force on the 11th of May, 1970.

190 parties have joined the NPT, and more countries have ratified it than any other arms limitation agreement, an indication of the Treaty’s great importance. Four countries outside the NPT have nuclear weapons: India, Pakistan, North Korea and Israel. North Korea had originally joined the NPT, but it withdrew in 2003.

Image from: ICAN-International Campaign to Abolish Nuclear Weapons.

Image from: ICAN-International Campaign to Abolish Nuclear Weapons.

The NPT has three main parts or “pillars”, 1) non-proliferation, 2) disarmament, and 3) the right to peaceful use of nuclear technology. The central bargain of the Treaty is that “the NPT non-nuclear weapon states agree never to acquire nuclear weapons and the NPT nuclear weapon states agree to share the benefits of peaceful use of nuclear technology and to pursue nuclear disarmament aimed at the ultimate elimination of their nuclear arsenals”.

Articles I and II of the NPT forbid states that have nuclear weapons to help other nations to acquire them. These Articles were violated, for example, by France, which helped Israel to acquire nuclear weapons, and by China, which helped Pakistan to do the same.

They are also violated by the “nuclear sharing” agreements, through which US tactical nuclear weapons will be transferred to several countries in Europe in a crisis situation. It is sometimes argued that in the event of a crisis, the NPT would no longer be valid, but there is nothing in the NPT itself that indicates that it would not hold in all situations.

****Trident | JohnED76| Wikimedia Commons.

*****Trident | JohnED76| Wikimedia Commons.

The most blatantly violated provision of the NPT is Article VI. It requires the member states to pursue “negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament”, and negotiations towards a “Treaty on general and complete disarmament”. In other words, the states that possess nuclear weapons agreed to get rid of them.

However, during the 47 years that have passed since the NPT went into force, the nuclear weapon states have shown absolutely no sign of complying with Article VI. There is a danger that the NPT will break down entirely because of the majority of countries in the world are so dissatisfied with this long-continued non-compliance.

Looking at the NPT with the benefit of hindsight, we can see the third “pillar”, the “right to peaceful use of nuclear technology” as a fatal flaw of the treaty. In practice, it has meant encouragement of nuclear power generation, with all the many dangers that go with it.

The enrichment of uranium is linked to reactor use. Many reactors of modern design make use of low enriched uranium as a fuel. Nations operating such a reactor may claim that they need a program for uranium enrichment in order to produce fuel rods. However, by operating their ultracentrifuge a little longer, they can easily produce highly enriched (weapons-usable) uranium.

The difficulty of distinguishing between a civilian nuclear power generation program and a military nuclear program is illustrated by the case of Iran. In discussing Iran, it should be mentioned that Iran is fully in compliance with the NPT. It is very strange to see states that are long-time blatant violators of the NPT threaten Iran because of a nuclear program that fully complies with the Treaty.

I believe that civilian nuclear power generation is always a mistake because of the many dangers that it entails, and because of the problem of disposing of nuclear waste.

However, a military attack on Iran would be both criminal and insane. Why criminal? Because such an attack would also violate the UN Charter and the Nuremberg Principles. Why insane? Because it would initiate a conflict that might escalate uncontrollably into World War III.

We live at a critical time for human civilization, a time of crisis. Each of us must accept his or her individual responsibility for solving the problems that are facing the world today.

We cannot leave this to the politicians. That is what we have been doing until now, and the results have been disastrous.

Nor can we trust the mass media to give us adequate public discussion of the challenges that we are facing. We have a responsibility towards future generations to take matters into our own hands, to join hands and make our own alternative media, to work actively and fearlessly for better government and for a better society.

READ: The Future of International Law – Part I

john_avery*John Scales Avery, Ph.D., who was part of a group that shared the 1995 Nobel Peace Prize for their work in organizing the Pugwash Conferences on Science and World Affairs, is a member of the TRANSCEND Network and Associate Professor Emeritus at the H.C. Ørsted Institute, University of Copenhagen, Denmark.

He is chairman of both the Danish National Pugwash Group and the Danish Peace Academy and received his training in theoretical physics and theoretical chemistry at M.I.T., the University of Chicago and the University of London. He is the author of numerous books and articles both on scientific topics and on broader social questions. His most recent book is Civilization’s Crisis in the 21st Century http://www.learndev.org/dl/Crisis21-Avery.pdf.

Images:

**Audience of the “Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo” | Author: Lybil BER | Wikimedia Commons

 ***The Universal Declaration of Human Rights, 1948 | Franklin D Roosevelt Library website | Wikimedia Commons

 ****An explosion caused by an Israeli airstrike in Gaza during the Gaza War. | Author: Al Jazeera | Wikimedia Commons

*******Trident  JohnED76| Wikimedia Commons.

2015 Human Wrongs Watch

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