By Judge Christopher G. Weeramantry

Transcript of remarks made at the sixth Article VI Forum meeting, Berlin Germany
January 30, 2008

Thank you very much for those kind words of welcome, and let me say what a great privilege it is for me to be able to address such a gathering of people dedicated to the elimination of one the greatest danger that has even faced the human race. Now, we are all gathered here together to explore various avenues towards the abolition of nuclear weapons, and we have had very rich presentations from the standpoints of diplomacy, technology, military strategy, arms limitation treaties, and so forth. Now, I want to pursue a somewhat different track and look at what international law, per se, has got to say about this. Leave alone even the treaties, and the strategy, and the diplomacy, and the technology, what is the basic substratum of principles available in international law to abolish and secure the total elimination of nuclear arsenals.

Now, it is not commonly known that international law does already embody the basic principles necessary to outlaw nuclear weapons, not once, but ten times over. You do not need a treaty. All the relevant principles are there embedded in the bedrock of international law. And, I have some times been asked this question by people not particularly versed in international law. They ask me, where is the treaty that outlaws nuclear weapons? They go on the basis that, for international law to be operative, you need treaty. Now that is because of misconception as to what international law is. So, a few words now on what international is, and basically, the sources of international law at set out in Article 38 of the Statute of the International Court of Justice. And those sources are treaties, of course, when the general principles of law recognized by civilized nations, they were fond even at that time after World War I of using the phrase “civilized nations,” and customary international law. Now, customary international law and the general principles of law, recognized by civilized nations contain all the principles, all the norms, all the propositions to outlaw nuclear weapons, lock, stock, and barrel. You do not want anything else. Of course, if you go after treaties, well then, good, you’ll get a treaty. But, the basic principles are already inexistence. You need nothing more. And I, sometimes, am concerned that even diplomats negotiating these matters, military experts talking about nuclear weapons, and even the average citizen discoursing on this seems to think that you want a treaty to outlaw what is basically so contrary to every norm of civilized society.

Now, just to put the matter in historical perspective, let me take you back a few centuries. Genghis Khan, in his blood-drenched career of world conquest, had made it quite clear to all his opponents that if any city resisted him, he would raise it to the ground. Not a heart could be left standing. That would be not a whimper of life, not a cat, or a mouse, or a dog would exist, leave alone the extermination of every human being who had dared to resist him. That was Genghis Khan said he would do. That was one of his boasts. He would do that to anybody who resisted him. I’m afraid some of our modern leaders, those in charge of states, can do much better than Genghis Khan, because not only do they eliminate all life in the target city, they eliminate it down to the last microbe. And not only this, they are proud of that ability to do so. They treasure their ability to do so. They defend their ability to do so as if that is a great right, which they enjoy, which gives them distinction in the human community. Obviously, there is something very wrong with this, and still of course they say that they are the leaders civilized nations. And “civilized nations” is the expression used in international documents down till the last century.

Now, let me given you another historical perspective. In 1899, when the so-called dumb-dumb bullet was in use, or had been discovered, the bullet that explodes upon entering the human body, all the nations of the world got together. And at a conference in 1899, they decided that the dumb-dumb bullet was too cruel to be used in warfare amongst civilized nations. Very good, we understand that. But these same nations, the successors of those civilized nation, who no doubt claim to be still civilized, they say that the nuclear weapon is quite in order. So they agree that the dumb-dumb bullet is too bad, but the nuclear weapon is ok. Now, there is something wrong with this philosophy, which even a ten year-old child would detect. But our people, those in power, generals, diplomats, many of them, do not see the absurdity of this. So, that is something we should keep at the back of out minds when we consider international law.

Now, let me tell you about Genghis Khan, also, that when Genghis Khan was doing what he did, he was only doing it to the target city. He was not able to spread contamination, disease, and environmental devastation all around. Today, those who claim the right to use this weapon will be spreading it, not only all around that city, but to nations all around. And time wise, to generations in perpetuity. But still, they seem to think they have the right to do that. And what is even more significant is this; that when Genghis Khan was saying and doing these things, he was not trampling on a system of international law, because it did not exist. He was not trampling on an assembly of the nations, for something like the United Nations did not exist. So, he was not violating treaties on this matter, because they did not exist. So, what we are doing today is, in so many ways, so much worse than what Genghis Khan was proclaiming, in all his savagery, that he would do.

And of course, we are doing this in the name of civilized nations, and that raises the question, are the public of these civilized nations doing when their rulers and their generals talk in these terms? There seems to be a total lack of resistance on the part of those who should be resisting, those who give their mandate to these people who are in power. They just sit by and watch while every principle in the book of civilized rules is violated. And naturally, their rulers think that they can defy international law and trample on the UN Charter and do all that sort of thing without any hesitation, because their public, who have given them their mandate, are not protesting. So, one of the things I would wish to put before a group like this is the importance of general education on international law. I have often thought that our school curricula are tremendously lacking in basic instruction on this fundamental rule, or fundamental set of rules, for the world community of today. For a long time, educational authorities have thought that it is right and proper that children should be taught the constitution of their country. They should be taught something about their rights and so forth, very true. But today, we are citizens not only of our nation-state. We are citizens of the global community, and all the children in schools today will be, when they grow up, children of the global community, all inhabitants of planet Earth, the one little home which all of us must share. And they will need to know the rules by which planet Earth is governed

So, some element of international law has to be introduced into school curricula, and I’m doing this as much as I can. I have a Center for Peace Education, where I’m propagating this. But I believe there should be worldwide effort to introduce a modicum of international law into schools. And, one of the things that needs to be know is that international law is based upon, as I said, a bedrock body of general principles recognized by all nations, a set of values recognized by all civilizations, and that it is upon this structure that international law depends. Now, in that, you don’t need to label the point, it is obvious that there is no right to kill, because there is a right to life. There is no right to commit genocide. There is no right to pollute the environment. There is no right to cause damage for generations to come. There is no right to cause mutilations. There is no right to cause damage to neighboring states. All that is there. Any civilized person would agree. Any civilized community would accept that principle, and that would be one of the general principles of law which is already there in the body of principles known as customary international law.

So, we do not need any great argument. We do not need wonderful treaties with detailed provisions on every little, minute aspect of a weapons use or application. The general principle is already there, which we can draw upon, and when I say we, I mean the community of that country. And the community of that country should be out on the streets telling their rulers, if there is a violation of this, that they should not be doing it. Because, as so many philosophers have said, we suffer not so much for the evil deeds of the evil people, but for the complacency of the good people who are not coming out and preventing this. So, there we stand. We are paying the price, or we will pay price, for our apathy. And, that price will be paid not only by us, but by our children and our children’s children, and we can not just sit by and see these things happen.

So, we have to communicate that bit of education to the millions of children in our schools, and go right up the ladder to the very top most levels of administration. And let me also tell you, that when we doing our work on Ethical Codes for Judges, one thing that came to our attention, which of course we are trying to remedy, is that there are even many judges in the world today who have not studied international law. Why? Because international law is on a compulsory subject in law schools and you can get your law qualification without ever having studied international law. You get qualified as a lawyer and in course of time you become a judge, and you are called upon to apply principles of international law that you have never studied. So, this is such anomaly that it needs to corrected, and the other day there was a conference of chief justices in Lucknow, in Delhi. And there too, I proposed a motion, and a resolution was passed that the judges of the future need, as compulsory measure, to have a basic knowledge of international law, leave alone our politicians, leave alone our generals, leave alone our executives who handle all of these affairs. So, that is very, very important and needs to be known.

Now, people, of course, when you talk of international law, they smile a very nice smile and say, yes it’s all idealism, very, very theorizing and so forth, but we live in a practical world. But let me give just one instance, international law depends, for its application, upon the respect that is paid to it, and if people pay it respect, it will be operative and it will deliver the goods. Now, in the International Court [of Justice], we once had a case between Libya and Chad; Libya to the north, Chad to the South. There was a dispute about their common boundary. Libya said it was much to the south. Chad said it was much to the north, and there were two parallel lines enclosing a strip land, very substantial block of territory, known as the Aouzou Strip. Now, Libya, of course had a very strong army. Libya had marched its army into occupation of the Aouzou Strip. Chad came to the Court. Fortunately, we had jurisdiction, because both parties had agreed to the jurisdiction of the Court. So, we went into the matter in great detail, looking at the whole history of it for the last 200 years, and we held in favor of Chad. Now, look at that situation. We, the International Court, without one policeman or one soldier, are ordering the powerful Army of Libya to get out of the Aouzou Strip. People might have smiled, but what happened? Libya and Chad agreed on a date. They met on the Aouzou Strip. They raised the flag of Chad, and the Libyan Army for ceremonially withdrew. Now, that is international law at its best, and that is how international law will operate and must operate if humanity is to survive. And, there we found wonderful victory of international law received hardly half a line in the international press. But if Libya had violated the Court Order, it would have been screaming headlines. That’s the way the world press functions, and gives the public a lop-sided view of international law and so many other matters. So, that is just to show you that if people obey international law, international law will work. Of course, if the self-appointed policemen of the world are the biggest violators of the laws they seek to enforce, no body is going to respect them or the law they are trying to enforce. And, I say that in relation to nuclear weapons, because there are self-appointed policemen who say, all these countries are not to have nuclear weapons. We can have them, but they can not, and we are going to enforce this law. How is it different from the police man who is trying to compel other people to obey a law, which he openly flouts himself? So, that is the reason nuclear weapons are proliferating, because the powers that have them do not respect the basics of international law. And that is what we have to do, to remind them that that is a basic obligation, which they must comply with.

So, these are some of the things that we can mount as a campaign. And, I ask you very seriously to consider using all the authority that you have to mount a global education campaign. You don’t want elaborate organization for it, just a little training of people here and there. So that teachers can give their students a little bit of information about it and seminars for the public, seminars for the executive, seminars even for the judiciary, seminars for the politicians, and you will then get international law better understood and better recognized. So, those are some of the things we need to know about the basics of general international law relating to nuclear weapons.

Now, may I say that, every principle of customary international law is violated by the nuclear weapon: the principle against unnecessary suffering; the principle of discrimination, you must discriminate between the civilian population and the military; the principle of proportionality; the rule that you must not violate the interests of non-belligerent states; the rule that you must protect the environment; the rule that you must not commit the crime of genocide; the rule that you must obey human rights law; that you must obey humanitarian law; that you should respect future generations. I could name another twenty-five rules like that, which are all basically violated by the nuclear weapon. But people don’t seem to understand that, and we have got to spread that understanding. And if I talk of human rights, look at the Universal Declaration of Human Rights. Every right that is spelt out in that Universal Declaration, from the right to life, to the right of movement and meeting and that sort of thing, and free expression, everyone one of those rights is absolutely contradicted and destroyed by the nuclear bomb. So, how can any nation say, for one moment, that it has the right to have that weapon that can absolutely destroy, better than Genghis Khan did, every right that we have? But that’s what they’re saying, and this is very sad when you think of the affects of nuclear weapons.

Now, in the case that came before International Court, there was this very wonderful, shall I say, occasion in the history of the Court, probably the most outstanding case the Court ever heard, the largest number of participant states in any case before the Court, an extremely long list of days of hearing. Witnesses came from all over the world to tell us about what they knew regarding the affects of nuclear weapons. Millions upon millions of signatures to various documents arrived in the Court, and the storehouses of the Court had no room to accommodate these millions of documents that we received. Now, that was the importance, the seminal importance of this case. And, it was a case that came to us, because the parties interested in the matter were able to get a majority in the General Assembly to ask the General Assembly to seek an advisory opinion from the International Court. So, that’s how the matter came to us. It was a historic occasion, and the Court went into the matter in great detail. We had differences, of course, among ourselves, but basically we were all agreed on the inhumanity of the weapon, that it violated of these rules I had mentioned to you, and except for one area of disagreement as to whether the weapon could be used in circumstance of self-defense where the very survival of a state was at stake. A part from that, we all agreed, and we were unanimous in issuing this direction: that all nations of the world, the nuclear nations, should take steps to get ride of their arsenals, this is what it said. Unanimously, there exists and obligation to pursue, in good faith, and bring to conclusion negotiations leading to nuclear disarmament, in all its aspects, under strict and effective international control. Now, the International Court of Justice is the highest court in the UN hierarchy. There is no higher court than that in the world, really. And, if all the judges of the Court unanimously express this opinion, you cannot have a more powerfully stated opinion on a matter of international law.

And these nations, this axis of civilized nations, those who claim the right to have nuclear weapons, have very clearly acted absolutely contrary to this unanimous decision, which gives the clearest possible indication of what international law requires them to do. And when you talk of good faith, good faith has so many things associated with it, there has got to be transparency, you must not go back upon your word, you must do exactly as you said you would do, must allow the right of inspection, you must take steps within a meaningful time, and the steps must be steps that are meaningful for the achievement of the objective that has been stated. All of that is there, and these countries who claim to be leaders of the world, and who could be moral leaders of the world if only they accepted and acted on international law, these countries are doing the exact opposite of what the International Court unanimously asked them to do. So, that is something for us to consider.

Now, also I think that there is something in the International Court opinion. I wanted to draw your attention to the terrible suffering that is imposed on populations by the nuclear weapon. I am saying this for this reason, because now if there is a nuclear war and a city is targeted, the population of that target city will get all the injuries that were described to us by witnesses who came from Hiroshima and the Marshall Islands, and so forth, Marshall Islands where testing was done. And, that was an absolutely harrowing tale of human suffering. I will read to you what a lady said who came to us from the Marshall Islands. That’s only where testing took place. She said, “Marshallese women give birth now, not to children as we like to think of them, but to things,” she could only describe as “octopuses, apples, turtles, and such things. They do not have Marshallese words for these kinds of babies, because they were never born before the radiation came. Women on Rongelap, Likiep, Ailuk, and other atolls in the Marshall Islands have given birth to these monster babies. One woman on Likiep gave birth to a child with two heads. There is a young girl on Ailuk, today, with no knees, three toes on each foot, and a missing arm. The most common birth defects on Rongelap and nearby islands have been jellyfish babies. These babies are born with no bones in their bodies and with transparent skin. We can see their brains and hearts beating. Many women die from abnormal pregnancies, and those who survive give birth to what looks like purple grapes, which we quickly hide away and bury. My purpose for traveling such a great distance, to appear before the Court today, is to plead with you judges to do what you can not to allow the suffering that we Marshallese have experienced to be repeated in any other community in the world.”

Now, whoever claims the right to use a nuclear bomb is claiming the right to inflict this kind of suffering on the citizens of the target city. Does any human being, does any country, does any super state have the power to do that? Well, they would be taking leave of their senses if they said so. But, that’s the way that the world operates. That’s why there’s nuclear weapons out there and such. That is why I say citizens have a right protest. They should be out in the streets protesting about this, because if they become the target city this is what is going to happen to them, and to their children, and their children’s children. In Scotland, there is a question that is arising now, in regard to the Trident Submarine and the nuclear weapons that are being produced there. And there again, one perspective arises, if weapons go out form the Scottish side, then the target for retaliation will be the area from which the weapon came, that means the women and people of that area will be subject to this sort of thing.

So, that’s one, and there are so many others who give similar accounts. And from Japan, the Mayor of Hiroshima brought us so much evidence about children exposed in their mother’s womb were often born with Microcephalia, a syndrome involving mild retardation and incomplete growth. For these children, no hope remains of becoming normal individuals. Nothing can be done for them medically. The atomic bomb stamped its indelible mark on the lives of these utterly innocent unborn babies. So, that is what those who claim to use the nuclear weapon, doesn’t matter whether it is in defense or offense, that is the sort of suffering they are claiming to that have the right to impose on target populations, not only of their enemies, but also of neighboring states. And, there must be something wrong with our reasoning processes if we can condone that.

Now, in regard to these rules, they are not rules that have just evolved yesterday, the rules that I told of that has been in the bedrock of international customary law. All the traditions of the world have embodied these for thousands of years. Now, take for example, in India which has probably one of the oldest recorded legal systems, there’s Rama and the Mahabaratha, the great classics of India. Both those classics record, strangely enough, in wars of that time, it was announced to the rulers that there was available to them what was described as a “hyper-destructive weapon” which would decimate the population of the enemy and ravage its country side. And, take the case of Rama. Rama was told this weapon is available, but please do not use it with out consulting the sages of the law. So, I don’t know whether [...] consults the sages of the law these days, but Rama had to consult the sages of the law. And, the sages of the law told him, this weapon goes beyond the purposes war; you cannot use it. The purpose of war is to subdue your enemy and live in peace thereafter, not to ravage his countryside and destroy his population.

So, that is the wisdom that comes down to us from over 3,000 years ago in the Hindu Classics. In Islam, it is forbidden even to use a poison arrow, and there are so many details written down there. In Christianity, there was the Second Vatican Council in 1139, which considered, what was then a new invention, the crossbow and the siege machine, and the Vatican Council said these are too cruel to be used in warfare among Christian nations. So, every religion, every tradition, African customary law is rich in these sort of things. There is so much tradition worldwide on the opposition to weapons that cause unnecessary and cruel suffering to the target country or target city. So, this has come down from time immemorial, but we do not seem to be prepared to accept it. And, in the Old Testament, itself, you get in Deuteronomy, for example, how you must look after the environment, even of the areas you have captured. The fruit trees must not be cut down, and the fields must be left intact and so forth. So all of this, everybody knows is there, all of this. All those who are in power are ignoring as if it is not there.

And, all of this is the duty of everybody, who has returned these governments to power, to bring to their attention. And here’s what an enlightened President of United States said, Woodrow Wilson, in regard to humanitarian law. “By painful stage after stage has it been built up; always with a clear view of what the heart and conscience of mankind demand.” What do the heart and mind and conscience demand with regard to nuclear weapons? I am quoting from a President of the United States, who had he been alive today, would have been absolutely shocked by suggestion that the United States could use a weapon of that sort.

So, these are some of the perspectives that are of great importance, and we have been told in the course of the conference about the many reasons of urgency that have emerged. I have written a little booklet on this, which I think some copies are available of. I wrote it three or four years ago, there are some copies available perhaps for distribution, where I wrote in it 115 reason why there is a growing urgency with regard to nuclear weapons, for example, the fact that there are so many mini-wars in the world, where they can develop into bigger wars. There are terrorist organizations that could make use them and would be prepared to make use of them, that there is the know-how as to how to put together a crude nuclear weapon, which is even available on the internet and so on. And, how the possibility of nuclear accident is there. There is the launch and warning capability of states that have weapons on readiness, just to go off in an instant. And more than once, it is recorded that the machine was ready to let off the nuclear missile but was held back by some lucky accident just a few second just before the discharge of the weapon.

The possibility of nuclear accident and all of that sort of thing, to which has now been added the global financial crisis, the deteriorating relationship Russia and the United States, Iran nuclear progress, the availability of nuclear materials through India and so on. So all of this is there for us to look at, take note of. You ought to be surprised that, in a world where these dangers are proliferating, we are still permitting them. The danger is upon us. I sometimes draw attention to the fact that when the 20th century was about to dawn, the Czar of Russia, himself an absolute monarch, was very concerned about the future, and everybody was saying there has been a bloody 19th century, let’s have a brand new 20th century of peace. And, they had the great peace conference ever held, the Peace Conference of 1899, held at The Hague at the insistence of the Czar of Russia. And the Czar had been, I don’t know how rulers of the world today read these books, but he had read Tolstoy, and he had also read, there was a book by a man called Bloch, who had written a six volume treaties on the dangerous nature of modern weapons. That is in the 1890s, and Bloch had said modern weapons are so dangerous that if we have another war, it will not be a war that anybody can win, because both sides with be utterly destroyed. So, these things were worrying the rulers at that time. And, here with the nuclear weapon available to us at the dawn of the 21st century, whether our rulers were concerned with that in the same way, I do not know, but there is no evidence of that. So, all of this is something that should cause us great concern, and we should also realize that all the civilizations have so much to offer us.

Now, there was talk during our conference of negotiations between the United States and Iran. Now, I recall, I was then a professor in Australia at the time of the Hostage Crisis in Iran, that was so many years ago, and I saw that the US was throwing at Iran various extracts from Western books on international law. So, I had done some work on this, myself, and I was aware that 800 years before Grotius produced his great treaties on war and peace in 1625, the Islamic jurist, like al-Shaybani, had written multi-volume treaties on international law, the sanctity of treaties, the treatment of diplomats, the treatment of prisoners of war, humanitarian conduct on the field of battle, all of that was all there. So, I took upon myself to write a letter to the American ambassador in Australia, and I said, this is what I see you are doing. But, why don’t you cite their own books? Their own books have got so many details about this, because there is hadith that the Prophet Mohammed, that when ambassadors came to see him, he donned ceremonial robes and met them in his personal mosque. And, in consequence of that, the scholars had written long accounts developing that, and the principle that respect is due to diplomats. So, I cited this to the American ambassador, and he wrote me a very nice letter back, I must say, saying thank you very much for this, and I will forward it immediately to the taskforce in Washington that is handling this matter. But, my feeling is that it must have rested on somebody’s desk in the taskforce in Washington. So, these are the things that happen, but we should realize this, and realize that we can negotiate with all other countries on the basis of the principles of peace and equity and international law, which they, themselves, recognize. And if you do that, showing a recognition of their contribution, the there will be a great willingness to meet in dialogue, and to arrive at a compromise. So, this is something that we should bear in mind.

The survival of our civilization is at stake, and this is the last century in which we will have an opportunity to put our house in order. The last century, the 20 th century, was the century of lost opportunity. This is our century of last opportunity, because if you do not take these initiatives, we will destroy ourselves. This is the first century to dawn with humanity having the power to destroy itself. And, I will close with a wonderful teaching of Prophet Mohammed. I don’t know whether you are aware of it, but there were about 20,000 of his saying that were collected by the scholars from all over the world. If there was someone in China who was a friend of a cousin, of was second-cousin, of a nephew, of a companion of the Prophet, people would go there to find out whether there was a tradition of what the Prophet had said or done. And then, there were 20,000 of these, and the scholars weeded out 15,000, leaving [...]. But, there are 4,000 also that have been preserved, and I give you one of them. This is the parable of the “Two Deck Boat,” and you will how relevant it is to our situation. He says, imagine a boat with tow decks, that is the lower deck, the upper deck, people on the lower deck, people on the upper deck, and as is the human custom people on the lower deck quarreling with each other. People on the upper deck start quarreling with each other, and there is a huge quarrel between the upper deck and the lower deck. Now, the people on the lower deck need water, and to get water they have to go to the upper deck. Now, they can’t do that. They can’t survive, of course, without water, but they can’t go up, because they have this big dispute with the people on the upper deck. So, a hunter in the hull exists, says, can’t you people see what you want, [...] they were on a freshwater lake, presumably, or on the river, I can get you water, and he takes an ax, and he does make a hole in the lower deck. So, what the Prophet says is, that is what humanity is doing to itself. Your duty is to prevent the man, before he wields the ax, from doing this and sinking the whole boat with everybody on it. The nuclear weapon is like that man’s ax, and what we should do is to try to prevent the wielder of the ax from doing so. Thank you.