[Friday March 14, 1997, Environmental Law Conference, Eugene Oregon USA, (129 Law) Speaker: Ak Malten, Global Anti-Nuclear Alliance]
I will speak today about the use of the International Court of Justice
opinion July 8 1996 on the threat and use of nuclear weapons in the defence
in court of Activist who were arrested during Non-Violence Direct Actions.
First I want to clarify what we think should be seen as a non-violence direct action. Here is one example which happened before the date of the ICJ opinion (July 8th), so we still had to be very careful in our approach:
Three other peace activist and my self have given a workshop on Anti-Nuclear campaigning and environmental issues campaigning at the Haagsch Montessori Lyceum at the anniversary lustrum of the school in 1996.
We worked hard together.
The first day, Marella Pereira, the daughter of the Dutch photographer of Portuguese origin, the one who was killed on the Rainbow Warrior in 1985, by the last of the two bombs which went off, showed us the film about the search for the truth by Marella and her mother about what had happened to Fernado Pereira.
(These bombs where placed by the French Secret Service.)
After that the student were given the opportunity to ask questions to Marella about the film and to all of us about nuclear and environmental issues.
The second day the students prepared questions to ask to Nicolas De Riviere, consseiller de presse of the French Embassy and together we went for the French Embassy and put these and other questions to Nicolas De Riviere. We had a good discussion about French testing and other nuclear issues and disarmament issues together. Although not planned (we had spoke about it, before we went to the Embassy) there were questions put about what had happened in 1985 in New Zealand, and because his answer, that the Family of Pereira was paid a sum to cover their loss, was not sufficient to Marella, she broke into tears and said: "Yes, that is true, but I had rather kept my father alive; and that money doesn't bring him back." He was shocked, by that outburst of course, but we could continue the meeting.
She was given the opportunity to find out some more about her still open answers. She did that in an unbelievable grownup manner. And was given answers.
After some final questions we thanked Nicolas De Riviere for his straightfowardness and assured him that the outburst of Marella was not planned, it just happened. Fortunate for us, he accepted that. We where invited to come to the Embassy again if we had some more questions.
In Peace,
Ak Malten,
Global Anti-Nuclear Alliance
To Marella,
And this is courage!
Courage is to
face your enemy
empty handed.
Courage is to
face your enemy
with only words.
Courage is to
search for truth,
and face the answers.
And Courage it is,
to show your tears,
but behave like a
grownup, although
your are a girl of
only 18 years, and
that you shows us
what courage is.
Copyright: akmalten@wish.nl
Other types of non-violence direct actions can be:
trespassing, de-fencing, blockade, banner hanging, and all kinds of demonstration forms.
Now let us look what of the International Court of Justice opinion is
specially useful in defence of Anti-Nuclear Activists being arrested during
non-violence direct actions:
During the defence one could state the following summary of the Courts
decision:
quote out of:
Implications of the advisory opinion by the International Court
of Justice on the legal status of nuclear weapons.
A Discussion Paper by The World Court Project.
"The Court's Decision
On 8 July 1996, the International Court of Justice (ICJ) delivered its findings on the two questions before it from the World Health Organization (WHO) and the UN General Assembly (UNGA) on the legal status of nuclear weapons.
The ICJ did not give an Advisory Opinion on the WHO question, because it judged that the question did not arise within the scope of the WHO's responsibilities. However, it relied upon the WHO's evidence of the health and environmental effects of nuclear weapons for both questions. Moreover the WHO's request had prepared the ground for the broader and deeper UNGA question.
On the UNGA question, it gave a 34-page main Opinion followed by over 200 pages of individual statements and dissenting Opinions by the 14 judges (one died just before the Oral Proceedings began in October 1995). In the crucial subparagraph, the ICJ decided that "a threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law" In doing so, it confirmed that the Nuremberg Principles apply to nuclear weapons. It added a caveat: "However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the survival of a state would be at stake" Nonetheless, even in such an extreme case, threat or use must comply with the principles and rules of humanitarian law. Also, the Court treated threat and use as a single, indivisible concept.
Finally, the judges unanimously agreed that "there exist an 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........."
and the following:
quote out of:
Implications of the advisory opinion by the International Court
of Justice on the legal status of nuclear weapons.
A Discussion Paper by The World Court Project.
".....In deciding that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, the ICJ confirmed that the principals of the Law of War (jus in bello) apply to nuclear weapons (Main Opinion on UNGA question, paragraphs 85-86.) These principles are drawn from international treaties and agreements such as the Hague Conventions, Geneva Conventions and Genocide Convention. These prohibit the use, even in self-defence, of weapons which:
- fail to discriminate between military and civilian personnel (Principle of Discrimination)
- cause harm disproportionate to their preceding provocation's and/or to legitimate objectives (Principles of Proportionality and Necessity)
- cause unnecessary or superfluous suffering (Principle of Humanity)
- affect neutral States (Principal of Neutrality)
- cause widespread, long-lasting and severe damage to the environment (Principle of Environmental Security)
- use asphyxiating, poisonous or other gases, and all analogous liquids, materials or substances (Principal of Toxicity) (Curiously however (Ibid paragraphs 55-56), the Court rejected the argument that the use of nuclear weapons can be regarded as specifically prohibited by the 1925 Geneva Gas Protocol.) "
Now we can say:
Another quote of the same publication:
"Opposing Nuclear Weapons is Lawful. By its decision, the ICJ has implicitly confirmed that opposing nuclear weapons is lawful. The Opinion gives legal authority to all those opposing nuclear weapons. Domestic law is affected: citizens now have a powerful new defence in support of civil resistance and attempts to challenge in court government nuclear weapon policies and military practices. They can cite Nuremberg Principle VII, which prohibits "complicity in the commission of a crime against peace, a war crime, or a crime against humanity." The associated shift of public perception against nuclear weapons will assist such initiatives........"
What follows is an example of a planned action, based on the ICJ Opinion
and send as a letter to the Abolition-Caucus.
It is not a quote, because I am co-signer of this letter and one of the initiators of this
new campaign to abolish nuclear weapons.
Please, contact me if you want more information: E-mail: akmalten@wish.nl
Dear friends,
Next July 8 is the first anniversary of the historic decision by
the international Court of Justice (ICJ) on how international law
applies to nuclear weapons.
On the same day all of the NATO leaders meeting in Madrid for the NATO Summit will be startled to receive a visit from a Spanish bailiff with a summons. They will be told that unless they carry out a radical legal surgery on NATO's nuclear weapons policy, they will be confronted with a new campaign of non-violent direct actions to remind them of their obligations under international law.
This was decided by peace and environmental activists meeting in
Gent (Belgium) this weekend.
You'll be able to receive regular updates on this campaign through a new electronic mail-server (this is info I could give you).
We hope you will join this new initiative to abolish nuclear
weapons. Contact us today.
Sincerely,
George Farebrother (World Court Project UK)
Pol D'Huyvetter (For Mother Earth International)
Ak Malten (Global Anti-Nuclear Alliance, NL)
Eirlys Rhiannon (Campaign for Nuclear Disarmament, UK)
Koen Moens (Forum voor Vredesaktie, B)
Yvonne Timmermans (Earth First, NL)
Hanna Jarvinen (For Mother Earth International)
Mikko Koskinen (For Mother Earth Finland)
Katri Silvonen (For Mother Earth International)
Tom Keunen (For Mother Earth International)
Prof. Pierre Pierart (European Nuclear Test Ban Coalition, Belgium)