Evidence, Commentary, and Judgment

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1.1 The Relevance of International Law

At the outset, we are aware of public skepticism. Many citizens and public officials continue to query whether international law is really law in the absence of police mechanisms for enforcement and the absence of procedures for impartial interpretation. Our response here is that international law provides the underpinning for many varieties of transnational life that work so well we take it for granted. An effective legal order does not necessarily depend on central institutions for decision and enforcement. Law can be effective if the parties seek to make it so out of reasons of convenience, mutual benefit, a sense of right and respect, or even because they find value in a reputation of law-abidingness. These factors all operate to some extent in international life, varying from one substantive area to another, and from one kind of leadership to another.

Of course, all law is violated at times. Indeed, enforcement would be superfluous were compliance perfect. The special problem of international life arises because some violations are so totally disruptive and unacceptable in their effects. It is important to be clear that preventing a particular kind of violation is a different challenge to a legal order than a denial of its existence altogether.

There is no doubt that considerations of reciprocity which ensure a high degree of effectiveness for international law (for example, upholding the immunity of foreign diplomats to reinforce the immunity of our own) are least operative in the context of war and peace where fundamental security, even survival, is at stake. Again, the wider context is important to appreciate. All law tends to bend and break in conditions of crisis, as is evident during periods of civil strife or economic privation.

Nevertheless, even governments have acknowledged over the centuries the great importance of bringing law to bear on decisions associated with recourse to and the conduct of war. From Grotius onward there has been a consensus to the effect that unrestrained warfare was a regression to barbarism, unacceptable as such. Especially in the last century or so there has been a dual series of developments: first of all, the technological innovations in warfare, culminating in the development and use of atomic bombs; secondly, an intensifying insistence on restricting the discretion of governments to wage war "legally".

There is no doubt that the possession of nuclear weapons underscores the tension between those political developments that give the modern state unconditional power over human destiny and those normative reactions by civil society that seek to impose limits upon what governments can do, even beneath the banners of military necessity and national security. There is no doubt also, that since 1945 the statists have prevailed in relation to warfare and weaponry of mass destruction. There have been many wars and relatively little success in resolving conflict by recourse to the procedures made available by international law and embodied in the United Nations Organization.

The leading nuclear weapons states have claimed that their possession of such weaponry has probably prevented World War III, and that the only reliable method to sustain "peace" is to threaten the annihilation of a rival society in retaliation. This system of mutual threat is generally called deterrence, and its logic and probable effects are not reconcilable with most understandings of law and morality. This Tribunal proceeded on the assumption that such a departure from normative restraint is dangerous and unacceptable, and that it does entail a relapse into barbarism on the grandest imaginable scale.

This Tribunal takes cognizance of both sides of this modern dilemma. Firstly, the urgent need to replace deterrence with a system of international security responsive to law and morality. Secondly, the realization that governments and their institutional creations, including the United Nations, are not sufficiently motivated or empowered to satisfy this most fundamental of international needs. In these regards, this Tribunal is filling a normative vacuum. It intends to mobilize public opinion throughout the world around the necessity to bring available law to bear on the nuclear weapons policy of governments.

It is, at the same time, important to realize that this Tribunal has not invented the legal framework it relies upon. This framework has been evolved over the years by governmental action responding to felt necessities and to the aspirations of the peoples of the world. We shall endeavour to demonstrate clearly that the international law interpreted and applied by this Tribunal is of a status that should be applied by governments themselves.

In this respect, the Tribunal was convened to fill a constitutional gap in the international political system of the present. Its existence is an enactment of the call for individual responsibility that is itself a signal achievement of modern international law and has been heralded as such by the main nuclear weapons states.

It is a startling irony that, aside from China, the other states that now acknowledge possession of nuclear weapons constituted the four prosecuting states at Nuremberg after World War II. In particular the two superpowers, the United States and the Soviet Union , were most insistent that German leaders at all levels of society be held criminally liable for their refusal to uphold international law in the context of war and peace.

The victorious governments were emphatic that their proceedings against the defeated governments of Germany and Japan would provide a framework for all political activities in international life. After the judgments had been given, a consensus among the victorious governments supported the effort to formulate the Nuremberg Principles as universally binding rules of international law. These Principles impose on governments and officials an unconditional duty to uphold international law regardless of state policy. This Tribunal believes that this duty serves the interests of all peoples, and that even the interest of one's own country is best upheld by assuring that its policies abroad conform to the rules of international law. It is then a matter of patriotic duty to insist on the application of the Nuremberg Principles, and most especially, in relation to the nuclear weaponry where so much is at stake and where it is too late to await an entire breakdown of order to establish the full evidence of a violative pattern of conduct.

It is true that, at the time of the Nuremberg Judgment, and ever since, critics have dismissed the whole enterprise as "victors' justice". There was a sombre truth to this contention. As the Indian member of the Tokyo Tribunal, Justice Pal, pointed out, it was unacceptably hypocritical to accuse Japanese war leaders of crimes but exempt from scrutiny the Western indiscriminate bombing of Japanese cities climaxing in the atomic attacks on Hiroshima and Nagasaki . This Tribunal acknowledges the imperfections in the legal precedents, but seeks to build upon them to complete their promise.

It can also be alleged that the nuclear weapons states have not clearly accepted the view that these weapons are illegal. This Tribunal carefully considered this allegation, but feels convinced by the evidence that international law exists with sufficient clarity to assess the policies of governments with respect to nuclear weapons. This Tribunal agrees that a comprehensive treaty of prohibition would be a contribution to the avoidance of nuclear war, but that even without such a document, existing treaties and customary rules of international law are clear on these matters.

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© 1985-2005 Geoffrey Darnton. All rights reserved.