Peace Magazine Jan-Mar 2001, page 16. Some rights reserved.
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WEISS: The Lawyers Committee on Nuclear Policy (LCNP) came into being in 1982 as a consequence of the publication of an article in 1980 by Richard Falk and Elliot Meyerowitz about the illegality of nuclear weapons under international law. The committee has promoted the idea of the illegality of nuclear weapons and therefore the need to abolish them totally and not just partly. One of the problems that we run into when we talk nuclear abolition with politicians for instance, is that they will say, "Oh yeah, I'm with you. I'm for reduction," or "Yeah, I'm for non-proliferation." And they don't understand the crucial difference between reduction and non-proliferation on the one hand and total abolition on the other, so we are keeping our eye on abolition. We have published any number of books and articles, attended health conferences, participated in grass roots efforts, and our single most important achievement in those years has been the ruling of the International Court of Justice (ICJ) in 1996 that nuclear weapons are generally illegal under international law and there exists a general application to pursue and bring to a conclusion negotiations for nuclear disarmament in all its aspects - which in non-legal language means total abolition. The International Association of Lawyers Against Nuclear Arms (IALANA) is a case of a child giving birth to the parent. As I said, LCNP was in existence since 1982. IALANA came into existance in 1992.And now LCNP is an affiliate of IALANA.
SPENCER: Tell me first, If you have polls of public opinion in the US and elsewhere, what do they reveal on this matter?
WEISS: Generally the polls on concluding a convention abolishing nuclear weapons run from about 65% in Russia to about 90% in the U.S., the UK, and Germany. It runs very high - in the 80s and 90s.
SPENCER: It has no obvious effect on presidential politics campaigns?
WEISS: Well, George W Bush held a press conference on May the 23rd, three days after the conclusion of the Non-Proliferation Treaty (NPT) review conference which takes place every five years. This year it achieved a breakthrough statement. I must say modestly that our people had quite alot to do with it in terms of lobbying. The final statement (which was signed in the wee hours of May 20. The conference was supposed to end on May 19 but it continued until about six o'clock in the morning on May 20) said that the nuclear weapon states give "an unequivocal undertaking to accomplish the total elimination of their nuclear arsenals." We considered that to be quite a victory. It was only a temporary one and only a verbal one because the problem is that the diplomats for the nuclear weapons states say one thing at the United Nations and at various other places and the military planners and the policy wonks do quite the opposite. So on May 20 the USA signed this beautiful statement saying "We're going to get rid of the nuclear weapons, totally," and three days later, George W. had this press conference at the National Press Club, in which he said: What do we need these nuclear weapons for? The cold war is over; we should have a drastic reduction of nuclear weapons. We should drastically reduce the number of weapons on hair trigger alert, but we should have a huge ballistic missile defence system covering not only the United States, but also our allies in Japan and Europe.
SPENCER: So we're not talking National Missile Defence (NMD) now, we're talking Star Wars itself.
WEISS: We're talking NMD to the nth power. Gore comes back and says: no, I think we need nuclear weapons just at the level they are now and I wouldn't do anything about taking them off alert. On the other hand,I want a much smaller NMD. So they have these two conflicting positions, but what they do agree on is that both of them are on record as saying, if we have to scrap the Anti-Ballistic Missile Treaty in order to get NMD, so be it. In other words, to hell with international law. And both of them are on record as saying we have no intention of abolishing nuclear weapons. In fact, Bush was asked about that conference because it happened so shortly after the NPT Review Conference: he was asked by one of the journalists, "Are you aware the United States signed a statement three days ago? And are you in favor of abolishing the nuclear arsenal of the United States? Bush replied, "No, I would never go below the level required for our security." So we have two people running for presidency who are going to urge the rest of the world to follow scrupulously the rule of law, but when it comes to the United States, it's a different story.
SPENCER: Well unfortunately, this isn't the only area in which they are playing that game. They did it with the International Criminal Court (ICC), for example.
WEISS: Yes, I just came back from a day-long conference on that subject in Boston yesterday in which Ambassador Shaffer, who was the lead guy for the United States on that, was the keynote speaker and people gave him a hard time on the US position. This was a legal meeting of law professors and legal practitioners so he took a strictly legal position, which is that the United States does not see how a treaty can establish a court with jurisdiction over the nationals of countries that are not party to the treaty. Of course the political answer usually given in non-legal meetings is that the U.S. has such a huge responsibility for peace in the world that its peacekeepers would be more at risk for prosecutions by the International Criminal Court. That is a little like saying that police departments are more at risk of being prosecuted for human rights violations and police brutality, so therefore they should be exempt. Or there should be no civilian review boards because civilians do not understand the way police departments function - that sort of thing.
It's a totally untenable position for the United States to be saying, yes, the International Criminal Court is a terrific idea so long as it doesn't apply to U.S citizens. They have taken a position that no one should be prosecuted for acts sanctioned by their superiors. In other words, if they are carrying out government policy, they shouldn't be subject to prosecution. Presumably that would apply to the pilots who dropped the bombs on Serbia during the Kosovo war. They were acting in pursuance of the official policy - which of course is going back on the most fundamental principle of Nuremberg, which is that there is no defence of "superior orders" to war crimes or crimes against humanity. The basic principle is that superior orders is not a defence for the commission of a major crime as defined by international law.
SPENCER: Yes, Nuremberg has to be a historic breakthrough. I don't suppose that had ever been officially decided before, had it?
WEISS: Oh, yes. Nuremberg did not establish that principle for the first time. Basically, Nuremberg was not making new law. It was consolidating the law that had been emerging over a long period of time. The same thing goes for the ruling of the International Court of Justice against nuclear weapons in 1996. They were not making new law. They were interpreting humanitarian law, as applied to nuclear weapons.
SPENCER: Yes, I'm glad you mentioned that opinion. The exception that they made in their ruling seems to leave a lot of latitude for countries, especially Israel, to argue that their very existence would be at risk if they didn't have nuclear weapons. Certainly Israel is the country that comes to mind in that connection.
WEISS: In my view it is not an exception. First you have to look at the exact wording, which said that we are not ruling on that very exceptional case. We are not in a position to rule on it because we have not been given any facts. And the president of the court, in his separate statement, went out of his way to say that this is not a green light for the use of nuclear bombs, even in that case. It is simply a statement that we are not ruling on that. And more importantly, in another part of that opinion they say that the threat and use of nuclear weapons "should always comply with humanitarian law." Always. In all circumstances, including, by implication, the situation where the survival of a state is at risk, because they say always. No exceptions. The reason I hesitated before saying "should" is that there is this strange thing where, in the opinion leading up to the holding, they say "must" when they discuss that point.
SPENCER: The distinction is between "should" and "must"?
WEISS: I don't think there is a distinction. If you say that something should always comply with humanitarian law you are saying that what you're talking about is subject to humanitarian law. Lawyers don't use the world "should" normally. They say that the law applies or doesn't apply. The judges debated for almost six months among themselves. There was enormous pressure. Each nuclear weapon state had a judge on that court - the United States and the United Kingdom, and so on. So I could just imagine the nuclear weapons states saying "We'll buy it if you'll just change 'must' to 'should' - but in fact they didn't buy it. That's another thing the United States likes to do about international law documents. We go in there and badger everybody and beat them down. We say, change this, or change that. And after they are on their knees we say, "Good. Now we're not going to vote for it anyway."
The IJC judges put out this statement: We can't rule on the exceptional circumstance where the survival of the state is at risk. But then elsewhere in the judgment they say that whenever there is a threat or use of weapons, it has to comply with international humanitarian law. Now it can't comply with humanitarian law if it involves the use of nuclear weapons as weapons of mass destruction because weapons of mass destruction, by their very nature, are indiscriminate in their effects. They kill many more civilians than military personnel - and nuclear weapons in particular have the capacity to kill millions at a single blast. There is absolutely no way in which the kind of nuclear weapons that we now have could ever be used in a legal way, following the opinion of 1996. If it leaves open the possibility that there might be a mini-nuke used in the desert somewhere against a military formation that doesn't have any fallout, doesn't have any environmental consequences, doesn't kill any civilians, then we would say, "So what? That's not what we are talking about. We're talking about nuclear weapons in the way that nuclear weapons states intend to use them - namely, as weapons of mass destruction."
You asked about public opinion. Public opinion runs very high on life and death issues. During the Cold War, public opinion ran very high on the fight to the death between capitalism and communism, and the possibility of nuclear war, which people at the time perceived as a real possibility. Millions of people here organized into the Freeze campaign. At this point, foreign policy ranks extremely low in the consciousness of the public, except in the area of globalization - as demonstrated by what happened in Seattle. This is an issue that affects a lot of people. They think of it as affecting their livelihood, security, the future of their children. Very few people are concerned about nuclear weapons. They don't see it as a real threat. The same thing with the rights of children. To the extent that civil society has an influence on the matters that the diplomats carry on, it's done by the NGOs that are concerned - by what politicians call "special interest groups." Like we have a special interest group concerned about the rights of children.
The actual struggle between civil society and the policy-makers is carried on exclusively by civil society organizations dedicated to particular issues. That's not the way it ought to be. What has to happen is two things: There has to be more mobilization in the grass roots. As I said before, that is difficult right now because people's focus is not on security issues, other than economic security. But that has to happen all the time because that, in turn, gets on the transmission belt to members of congress. And the other thing that has to happen is that we have to get the very small number of policymakers who deal with these issues in Washington to really deal with them instead of just mouthing words. That's an easier thing to do but not likely to produce results without the other - without the demonstration that this is important to people.
The Lawyer's Committee sent out a questionnaire about a month ago to all members of Congress asking three questions. (1) Are you aware that on May 20 the United States signed an unequivocal undertaking, etc. - giving the text; (2) Are you in favor of the United States promptly complying with that undertaking; (3) Are you in favor of National Missile Defense, which might cost $60 billion or more? We got very few replies because basically members of Congress don't reply unless it comes from their own district. But they were about evenly divided. It is interesting that many of those who replied said they had no idea that the United States had signed that undertaking.
SPENCER: Well, there wasn't much publicity. That's another aspect of the problem - how to get more attention focused through the media.
WEISS: Yes. The Times hardly carried anything about the World Court Opinion of 1996 or the May NPT review conference. It's the skepticism of the journalists. Although, one of these days I'm going to sit down with Barbara Crossette, who is very good on other issues. She covers the United Nations forThe New York Times.
There have been two programs lately on TV. One was on CNN, the other was on CBS. CNN did a remarkable one-hour special last month in its Democracy in American series. It was originally going to be called "Sleepwalking to Armageddon" but somebody scotched that title. It started out with George Cryle, the producer of that program, being taken through the command centre of one of these many underground ICBM launch sites that we have in the West. There are about fifty of them; I had thought there were only one or two. So he's taken underground and he sees all the screens and equipment and the button that they would have to push if they got the order to push the button. There were two young lieutenants in their twenties, a man and a woman, and Cryle asks them whether they ever have any second thoughts about what they are doing here. They said, "No, that's why we're here." He says, "Do you realize that if you push that button, it might mean the end of the world?" The woman says, "I'll do anything to defend my country."
Cryle was given entry to all these sites. Then he had interviews with a lot of retired people, like Lee Butler, who had been in charge of the American nuclear weapons system. The most interesting part was the long segment he did with Lee's successor, whose name I don't recall. His successor is not a total abolitionist but he, also now retired, shares Butler's concern and General Horner's concern about the fragility of the whole system, and the possibility of accidental launches and the overkill of weapons on hair trigger alert. He was eloquent on this subject of not being able to get the attention of the civilian policymakers in Washington. So he started his own negotiations with the Russians. He established a close relationship with his counterpart, the Russian general who was in charge of nuclear weapons. They invited each other and Cryle went along with his camera to a party somewhere in Russia where they embraced each other and the vodka flowed freely. CNN interviewed the Russian general, who shares this concern about what might happen at any second. It didn't go anywhere. It never got to the policy-makers, never got to the civilians. A very well done program, though.
SPENCER: The Globe and Mail, which is not exactly a flaming radical paper, has come out against NMD. It's hard to say where the government is here on that because of the ongoing election. Lloyd Axworthy recently left the government, so we have a new foreign minister who is an unknown quantity as far as NMD goes. But even if the press opposes something, that may not influence the government.
WEISS: Everybody in Europe is against NMD. The Brits are against it, the French are against it. Canada has come out too, but not strongly.
SPENCER: Well, Axworthy was strongly against it, but now that he's gone it is uncertain what position the cabinet will have.
Peace Magazine Jan-Mar 2001, page 16. Some rights reserved.
Search for other articles by Peter Weiss here
Search for other articles by Metta Spencer here