Comment on right to life & nuclear weapons

IALANA and the Association of Swiss Lawyers for Nuclear Disarmament  (SLND) submitted a text regarding the Human Rights Committee’s second draft of a general comment on the right to life, Article 6 of the International Covenant on Civil and Political Rights (ICCPR).

Read the text here:

Threat or Use of Weapons of Mass Destruction and the Right to Life: Follow-up Submissions to the UN Human Rights Committee on draft General Comment no. 36

North Korea: Solution or Disaster

International Association of Lawyers Against Nuclear Arms
Peter Weiss, President Emeritus; Peter Becker and Takeya Sasaki, Co-Presidents
10 October 2017

1) The assassination of two persons in Sarajevo on 28 June 1914 triggered World War I, which resulted in the death of an estimated 10 million military personnel and 10 million civilians and many more wounded. Likewise, the current steadily escalating confrontation between the United States and North Korea could explode into war from a small incident. We must not let this happen.

2) Both sides in the current conflict between the United States and North Korea have threatened each other with events which rise to the level of genocide, the greatest crime in international law.

3) They have ignored the obligation of the UN Charter to resolve disputes peaceably, without resorting to force.

4) The United States in particular has declared an end to diplomacy, while maintaining a condition which negates the possibility of beginning diplomacy: the denuclearization of North Korea.

5) The confrontation carries seeds of a wider war. China and North Korea have a mutual defense pact. Russia borders North Korea. The United States and Japan have a treaty-based defense arrangement, as do the United States and South Korea. All concerned states in the region should make all efforts for a peaceful resolution of the dispute, as is called for by the Security Council resolution adopted on 11 September 2017.

6) It is not – it must not be – too late to commence diplomacy, which could include any number of concrete proposals, such as:
a. negotiations without preconditions
b. the cessation of joint US-South Korean military exercises in return for a cessation of or moratorium on further nuclear weapons development by North Korea
c. the lifting or reduction of sanctions
d. food and other humanitarian aid to North Korea
e. discussion of a non-aggression pact between the United States and North Korea monitored by a neutral country, as a first step to the conclusion of a peace treaty
f. abstention by the US side from attempts at regime change in North Korea
g. commitment to the establishment of a nuclear weapons free zone in Northeast Asia

7) We offer these suggestions as a way to avoid another Sarajevo by intent or accident, which could have unimaginably horrific consequences.

A more detailed analysis of the legal aspects of the situation is appended.

Download the Statement: North Korea – Solution or Disaster

 

Threats of Total Destruction Are Unlawful and Extremely Dangerous; Direct Diplomacy between the United States and

North Korea Is Essential to Avert Disaster

Lawyers Committee on Nuclear Policy and Western States Legal Foundation

25 September 2017

 

The United States has great strength and patience, but if it is forced to defend itself or its allies, we will have no choice but to totally destroy North Korea. Rocket Man is on a suicide mission for himself and for his regime.”

– President Donald Trump, speech at United Nations, 19 September 2017

 

President Trump’s threat of total destruction of North Korea is utterly unacceptable. Also deplorable is the response of North Korean Foreign Minister Ri Yong Ho on 23 September at the United Nations. He said that North Korean nuclear forces are “a war deterrent for putting an end to nuclear threat of the U.S. and for preventing its military invasion,” referred to “our rockets’ visit to the entire U.S. mainland,” and called Trump “mentally deranged”. Instead of exchanging threats and insults, the two governments should agree on a non-aggression pact as a step toward finally concluding a peace treaty formally ending the 1950s Korean War and permanently denuclearizing the Korean peninsula.

The U.S. and North Korean threats are wrong as a matter of morality and common sense. They are also completely contrary to bedrock requirements of international law. Both countries, by engaging in a cycle of threats and military posturing, violate prohibitions on the threat of force to resolve disputes and on threats to use force outside the bounds of the law of armed conflict. Trump’s threats carry more weight because the armed forces of the United States, capped by its immense nuclear arsenal, could accomplish the destruction of North Korea in short order.

Threats of total destruction negate the fundamental principle that the right to choose methods and means of warfare is not unlimited:

  • Under the law of armed conflict, military operations must be necessary for and proportionate to the achievement of legitimate military objectives, and must not be indiscriminate or cause unnecessary suffering. Protocol I to the Geneva Conventions prohibits threatening an adversary that there will be no survivors or conducting hostilities on that basis. The Nuremberg Tribunal found the Nazi concept of “total war” to be unlawful because it runs contrary to all the rules of warfare and the moral principles underlying them, creating a climate in which “rules, regulations, assurances, and treaties all alike are of no moment” and “everything is made subordinate to the overmastering dictates of war.”
  • Conducting a war with the intention of destroying an entire country would contravene the Genocide Convention, which prohibits killing “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group ….”
  • Limits on the conduct of warfare apply to both aggressor and defender states. Thus Trump’s statement that total destruction would be inflicted in defense of the United States and its allies is no justification. Moreover, the U.S. doctrine permitting preventive war, carried out in the illegal 2003 invasion of Iraq, means that Trump’s reference to “defense” does not necessarily rule out U.S. military action in the absence of a North Korean attack or imminent attack.
  • North Korea has explicitly threatened use of nuclear weapons. While the United States likely would not use nuclear weapons first in the Korean setting, it remains true that Trump’s references to “fire and fury” and “total destruction” raise the specter of U.S. employment of nuclear weapons. Nuclear weapons cannot be used in compliance with the law of armed conflict, above all the requirement of discrimination, as the recently adopted Treaty on the Prohibition of Nuclear Weapons recognizes. Threats of use of nuclear weapons are likewise unlawful.  The illegal character of the threat or use of nuclear weapons is especially egregious where the express intent is to “totally destroy” an adversary, a purpose that from the outset rules out limiting use of force to the proportionate and necessary.

U.S. and North Korean threats of war are also unlawful because military action of any kind is not justified. The UN Charter prohibits the threat or use of force except in self-defense against an armed attack or subject to UN Security Council authorization:

  • Article 51 of the UN Charter permits the use of force as a matter of self-defense only in response to an armed attack.  No armed attack by either side has occurred or is imminent.
  • The Security Council is addressing the matter and has not authorized use of force. Its resolution 2375 of 11 September 2017 imposing further sanctions on North Korea was adopted pursuant to UN Charter Article 41, which provides for measures not involving the use of force. There is no indication whatever in that and preceding resolutions of an authorization of use of force. Moreover, the resolution emphasizes the need for a peaceful resolution of the dispute with North Korea. That approach is mandated by the UN Charter, whose Article 2(3) requires all members to “settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.”

It is urgent that diplomatic overtures replace threats. In the nuclear age, the first principle of diplomacy should be that adversaries talk to each other to the maximum possible extent, and in moments of crisis directly and unconditionally. We learned during the Cold War that even when the prospects for any tangible progress seem dim, negotiations between nuclear-armed adversaries have other positive results. They allow the military and political leaderships of the adversaries to better understand each other’s intentions, and their fears. They build broader channels of communication between military and government bureaucracies that can be of tremendous value when tensions rise.

Accordingly, the United States should declare itself ready and willing to engage in direct talks with North Korea, and a commitment to denuclearization should not be a precondition for such talks. To facilitate negotiations, the United States and South Korea should immediately cease large-scale military exercises in the region, providing North Korea with an opportunity to reciprocate by freezing its nuclear-related testing activities. The immediate aim of negotiations should be a non-aggression pact, as a step toward a comprehensive peace treaty bringing permanent closure to the Korean War and providing for a nuclear-weapon-free Korean peninsula. Success in denuclearizing the Korean peninsula will be much more likely if the United States, Russia, China and other nuclear-armed states also engage, as they are obligated to do, in negotiations for a world free of nuclear weapons.

Lawyers Committee on Nuclear Policy, based in New York City, is the UN Office of the International Association of Lawyers Against Nuclear Arms (IALANA); Western States Legal Foundation, based in Oakland, California, is an IALANA affiliate.

IALANA Welcomes the Award of the Nobel Peace Prize to the International Campaign to Abolish Nuclear Weapons

6 October 2017

IALANA – the International Association of Lawyers Against Nuclear Arms – congratulates ICAN – the International Campaign to Abolish Nuclear Weapons – on the award of this year’s Nobel Peace Prize.

ICAN well deserves the prize for its creative and determined work to highlight the humanitarian consequences of nuclear explosions and to catalyze the negotiation and adoption of the Treaty on the Prohibition of Nuclear Weapons. ICAN has 468 partner organizations in 101 countries. IALANA is proud to be among them, and also to have made contributions to the negotiations. The Norwegian Nobel Committee’s decision honors the role of civil society in the struggle for the abolition of nuclear weapons.

As ICAN graciously said, “This prize is a tribute to the tireless efforts of many millions of campaigners and concerned citizens worldwide who, ever since the dawn of the atomic age, have loudly protested nuclear weapons, [and] also to the survivors of the atomic bombings of Hiroshima and Nagasaki – the hibakusha – and victims of nuclear test explosions around the world, whose searing testimonies and unstinting advocacy were instrumental in securing this landmark agreement.”

Already 53 countries have signed the nuclear weapons prohibition treaty, which will enter into force when 50 countries have both signed and ratified it. The Nobel Committee’s decision will give further momentum to this process.

The treaty is a powerful and eloquent statement, grounded in an understanding of the catastrophic humanitarian consequences of nuclear explosions, of the political, moral, and legal standards enjoining non-use and elimination of nuclear arms and of the need to redress the damage wrought by the nuclear age to people and the environment.

The treaty recognizes and reinforces the existing illegality of using and threatening to use nuclear weapons as a matter of universal law rooted in international humanitarian law, the UN Charter, and principles of humanity and dictates of public conscience. That law applies to all states, whether or not they join the treaty.

The treaty also recognizes and reinforces the existing legal obligation resting on all states to abolish nuclear arms through good-faith negotiations. IALANA joins with the Nobel Committee in calling upon the nuclear-armed states to initiate serious negotiations to that end.

Download the statement: IALANA on Nobel Peace Prize 2017

IALANA Statement Regarding the Treaty on the Prohibition of Nuclear Weapons on the Occasion of its Opening for Signature on 20 September 2017

IALANA – the International Association of Lawyers Against Nuclear Arms – welcomes the adoption on 7 July 2017 of the Treaty on the Prohibition of Nuclear Weapons. The nuclear weapons ban treaty is a powerful and eloquent statement, grounded in an understanding of the catastrophic humanitarian consequences of nuclear explosions, of the political, moral, and legal standards enjoining non-use and elimination of nuclear arms and of the need to redress the damage wrought by the nuclear age to people and the environment. At the same time, it must be acknowledged that trends in the wider world are negative, as threats of use of nuclear weapons are made in the Korean context and elsewhere, and as all nine nuclear-armed states proceed with long-term programs for the maintenance and modernization of their nuclear arsenals. It is imperative that the nuclear-armed states and their allies be persuaded of both the humanitarian values and the disarmament logic underlying the treaty.

IALANA is particularly pleased that the treaty – as we strongly advocated – robustly recognizes and reinforces existing treaty- and custom-based international law requiring the non-use and elimination of nuclear weapons. That law applies to states whether or not they join the treaty. That includes the nuclear-armed states, which did not participate in the negotiations, as well as states in nuclear alliances, most of which likewise did not participate.

Considerations relevant to all states are set out in the treaty’s preamble, whose legal elements:

  • Reaffirm the need for all states at all times to comply with international humanitarian law and international human rights law;
  • Identify key principles and rules of international humanitarian law, including the rule of distinction between civilians and combatants and civilian objects and military objectives; the prohibition of indiscriminate attacks; the rule of proportionality; the rule of precaution; the prohibition of infliction of unnecessary suffering; and the rules for the protection of the environment;
  • Consider that any use of nuclear weapons would be contrary to the rules of international law applicable in armed conflict, in particular the principles and rules of international humanitarian law;
  • Recall the UN Charter prohibition of the threat or use of force;
  • Reaffirm the 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. That obligation was set forth in a unanimous conclusion of the International Court of Justice in its 1996 Advisory Opinion, based on Article VI of the Nuclear Non-Proliferation Treaty and UN practice going back to the very first General Assembly resolution, in 1946.

The treaty’s core prohibitions, set out in Article I, bar states parties from developing, testing, producing, and possessing nuclear weapons, and from using and threatening to use such weapons. At least the latter prohibitions, of using and threatening to use nuclear weapons, apply to all states whether or not they are party to the treaty, as a matter of universal law rooted in international humanitarian law, the UN Charter, and principles of humanity and dictates of public conscience.

We emphasize that the use and threatened use of nuclear weapons is presently incompatible with international humanitarian law regulating the conduct of warfare. Above all, due to their uncontrollable blast, heat, fire, and long-lasting radiation effects, nuclear weapons cannot meet the requirement of distinguishing between the civilian population and combatants and between civilian objects and military objectives. Indeed, the catastrophic consequences of use of nuclear weapons vastly exceed the ordinary boundaries of armed conflict and adversely impact populations in third-party states, the natural environment necessary to sustain human life, and future generations. The use and threatened use of nuclear weapons accordingly also violates international human rights law, most centrally the right to life. It is therefore appropriate that the preamble to the nuclear weapons ban treaty invokes international human rights law as well as international humanitarian law.

In view of the centrality of threat to now decades-old reliance on nuclear weapons in military and security postures, IALANA also emphasizes the importance of the explicit inclusion of the prohibition of threatened use in the treaty. It will be an important tool in the ongoing campaign to delegitimize ‘nuclear deterrence’ as contrary to international law as well as common sense in view of the immense risks involved. Delegitimization of nuclear deterrence is essential to success in achieving the global abolition of nuclear arms.

The treaty’s preamble refers to the “unacceptable suffering of and harm caused to the victims of the use of nuclear weapons (hibakusha), as well as of those affected by the testing of nuclear weapons.” IALANA welcomes the human-rights based obligation on all states parties in a position to do so to assist affected states parties with victim assistance and environmental remediation. There is still much to do to help victims of the use and testing of nuclear weapons, and clean-up or other appropriate management of contaminated areas remains a daunting task. IALANA urges all states to take seriously the obligation of assistance to affected states, with special emphasis on the responsibility of states having used or tested nuclear weapons.

IALANA hopes that the several pathways created by the treaty for nuclear-armed states to verifiably and irreversibly dismantle their arsenals will serve as a framework for global nuclear disarmament. If the treaty is not itself used as such a framework, at least it points the way toward a convention – a comprehensive agreement on the permanent global elimination of nuclear arms.

Finally, the nuclear weapons ban treaty is the product of a participatory, conscience-driven and non-discriminatory movement of states taking responsibility for the future of humanity working together with civil society. It is a harbinger of the democratization of disarmament and of the United Nations, and of a paradigm shift toward human security, placing the individual at the centre rather than considerations guided only by states’ interests.

We accordingly call on all states to sign the treaty and then soon to ratify it in order to bring it into legal force at the earliest possible date. We urge states in nuclear alliances to modify their national policies appropriately so that they can sign the treaty and act consistently with its object and purpose as required of signatories by international law, and to ratify the treaty when they are in a position fully to comply with it. We call on nuclear-armed states to, now, adopt policies and to, now, effectively engage in disarmament negotiations, which are required by international law, so that they too are able to join the treaty or to engage in a parallel process for ending the spectre of use of nuclear arms and achieving a world free of nuclear weapons. In this regard, the treaty provides confirmatory evidence of the utmost importance of existing international law in requiring that nuclear weapons be banned from the face of the earth; it is a powerful call to the nuclear-armed states, and to the world, to effectively honor the obligations of nuclear disarmament.

Find the statement as pdf here:

IALANA Statement_20170919

Appeal for a diplomatic solution in North East Asia

The Abolition 2000 members and affiliated networks listed below, representing peace and disarmament organisations from around the world, call on the United States and North Korea to step back from the brink of war in North East Asia, and instead adopt a diplomatic approach to prevent war .
We call for the immediate commencement of negotiations to prevent a military conflict from erupting, and to resolve the underlying conflicts. Such negotiations should take place both bilaterally and through a renewed Six-Party  framework involving China, Japan, North Korea, Russia, South Korea and the United States.

The escalating tensions and threat of military conflict over North Korea’s nuclear and missile capabilities

makes a diplomatic solution of vital importance and the highest priority. The increasing risk of war – and possibly even the use of nuclear weapons by miscalculation, accident, or intent – is frightening.

More than three million citizens of Korea, China, USA and other countries lost their lives in the Korean War from 1950-1953. Should a war erupt again, the loss of lives could be considerably worse, especially if nuclear weapons are used. Indeed, a nuclear conflict erupting in Korea could engulf the entire world in a nuclear  catastrophe that would end civilization as we know it.

In supporting diplomacy rather than war, we:

  1. Oppose any pre-emptive use of force by any of the parties, which would be counter-productive and likely lead to nuclear war;
  2. Call on all parties to refrain from militaristic rhetoric and provocative military exercises;
  3. Encourage China, Japan, North Korea, Russia, South Korea and the United States to consider the phased and comprehensive approach for a North-East Asian Nuclear-Weapon-Free Zone with a 3+3 arrangement*, which already has cross-party support in Japan and South Korea and interest from the North Korean government;
  4. Encourage China, Japan, North Korea, Russia, South Korea and the United States to also consider options and modalities for turning the 1953 Armistice Agreement into a formal end to the 1950-1953 Korean War;
  5. Welcome the call of the UN Secretary-General for a resumption of Six-Party talks and his offer to assist in negotiations;
  6. Welcome also the offer of the European Union to assist in diplomatic negotiations, as they did successfully in the negotiations on Iran’s nuclear program;
  7. Call on the United Nations Security Council to prioritise a diplomatic solution to the conflict.

Read the appeal with signatories here

 

Publication: Humanization of Arms Control. Paving the Way for a World free of Nuclear Weapons

Despite clear legal rules and political commitments, no significant progress has been made in nuclear disarmament for two decades. Moreover, not even the use of these weapons has been banned to date. New ideas and strategies are therefore necessary. The author explores an alternative approach to arms control focusing on the human dimension rather than on States’ security: “humanization” of arms control!

Daniel Rietiker (PhD) is a senior lawyer at the European Court of Human Rights and teaches international law and human rights at Suffolk University Law School (Boston, MA) and Lausanne University (Switzerland).

Continue reading here

Words of Greetings to the Hiroshima and Nagasaki Commemorations

Some contemporary philosophers and scientists would have us believe that evil does not exist. They are wrong. Hitler’s gas chambers were evil, torture is evil and nuclear weapons are evil incarnate. Their power to kill as agents of mass destruction is unparalleled and the manner in which they kill is unbelievably brutal. As the International Court of Justice said, they cannot be controlled in time or space. Those who seek to “modernize” and maintain them are complicit in their evil. And those who, like you, are striving to abolish all nuclear weapons forever are doing the work of goodness, which is the opposite of evil. Let us persevere in that task until it is accomplished.

Peter Weiss

President Emeritus

Lawyers Committee on Nuclear Policy, New York

Statement: JALANA welcomes the adoption of the Treaty on the Prohibition of Nuclear Weapons

JALANA welcomes the adoption of the Treaty on the Prohibition of Nuclear Weapons.

On July 7th, the United Nations conference to negotiate a legally binding instrument to prohibit nuclear weapons, leading towards their total elimination adopted the Treaty on the Prohibition of Nuclear Weapons by a vote of 122 to 1 (Netherlands), with one abstention (Singapore). As many as 63 percent of the 193 UN member states voted for the Treaty. We heartily welcome the adoption of this Treaty that should be a landmark step toward a “world free of nuclear weapons.” Continue reading “Statement: JALANA welcomes the adoption of the Treaty on the Prohibition of Nuclear Weapons”