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Conference Report

Freedom from Nuclear Weapons through Legal Accountability and Good Faith

6 - 7 July 2006 Brussels

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A Conference: Freedom from Nuclear Weapons
through Legal Accountability and Good Faith

Organised by International Physicians for the Prevention of Nuclear War, Abolition 2000 Europe, International Association of Lawyers Against Nuclear Arms, International Peace Bureau.

6 - 7 July 2006, Brussels, European Parliament

Sponsored by Gisela Kallenbach MEP and Caroline Lucas MEP on behalf of the Green/EFA Group in the European Parliament.

Report, George Farebrother, July 2006

This is a preliminary review of the conference. Fully published accounts will follow in due course.

The two-day conference marked the tenth anniversary of the World Court (ICJ) Advisory Opinion on the threat or use of nuclear weapons. It was sponsored by MEPs Gisela Kallenbach and Caroline Lucas on behalf of the Green/EFA Group in the European Parliament, both of whom addressed the conference, emphasising the important role the Parliament could play in nuclear abolition. Organisation in the Parliament building itself was ably carried out by Ernst Guelcher, who works for the Green/EFA Group. we also thank Jean-Luc Dehaene MEP.and his assistant Marilyn Neven for their vital help.
Important assistance was also given by volunteers in the For Mother Earth office in Gent and Carla Goffi of Mouvement Chrétien pour la Paix. The conference was made possible by a grant from the Marmot Charitable Trust and several individual supporters of World Court Project UK.

ErnstGuelcher welcomed the international audience which filled the 120-capacity conference room and included representatives from the British Foreign Office and Ministry of Defence. During the two days the audience had ample opportunity to participate in the discussion.
The first day, chaired by Rae Street, Vice Chair of CND and Dr. Ronald McCoy, Co-President of IPPNW, concentrated on the legal implications of the Advisory Opinion, setting it in the context of wider international law. Christopher Weeramantry, former ICJ judge, took us through the main findings of the Court in two presentations, providing us with a perspective based on his own convictions which go far beyond the confines of formal law. Dr. Victor Sidel, IPPNW, reminded us of the health effects of nuclear weapons. A single nuclear detonation would be far beyond the capacities of any heath service to deal with. What nuclear weapons can actually do to people is basically why we gathered in Brussels and why we shall be working together in the future. Dr. Hans Corell, formerly Legal Counsel of the United Nations, spoke of "The Role of Public International Law and the lCJ in a ChangingWorld". Drawing on the weight of his great experience in the UN he stressed the need for an international order based on the rule of law and highlighted the role of
international tribunals, and in particular the ICJ.
The scene had by now been set for a closer examination of the Advisory Opinion. All three speakers
in this section were able to make this complex analysis accessible to a mainly activist audience.
Louise Doswald-Beck of the University Centre for International Humanitarian Law in Geneva
emphasised that the law was for people and not an end in itself. The court found that the
fundamental rules of international humanitarian law, in particular the prohibition of weapons that
cause superfluous injury or unnecessary suffering and are inherently indiscriminate, applied to
nuclear weapons. She argued that the justifications for the retention of nuclear weapons provided by
the nuclear weapon states therefore suffered from one shortcoming: that their effects were always
unpredictable due to the incalculable behaviour of secondary radiation. Hans Lammerant of the
Forum for PeaceAction, and Bombspotting provided further analysis of the concept of weapons that
are inherently indiscriminate and linked this with the sentence in the Opinion which reserved
judgement on the possible use of nuclear weapons in an extreme circumstance of self defence when
the survival of a state is at stake.
After lunch, Peter Weiss, IALANA's Vice President, Steven Haines, Royal Holloway College,
London, who filled a legal post in the Policy Area of the UK Ministry of Defence Central Staff until
becoming a full time academic three years ago, and Commander Robert Green, formerly of the
Royal Navy and later chair of World Court Project UK, examined the linked concepts of selfdefence,
nuclear policy concepts, threat and deterrence. There is clearly a division of opinion over
whether the deployment of nuclear weapons with the conditional intention to use them constitutes
threat, and whether this can be argued from the opinion itself. Beyond this are the moral issues
relating to outcomes and how these are linked with the ethics of intentionality. Robert Green argued
strongly that the policy of deterrence is unsustainable and Peter Weiss made the point that the threat
or use of nuclear weapons must comply with IHL in all circumstances. This makes it inconceivable
that they could ever be used lawfully, even in self-defence.
Steven Haines suggested a "middle way" in for the UK to follow in relation to Trident. A significant
reduction of the numbers of warheads, missiles, and submarines would maintain Britain's nuclear
weaponswhile moving in the direction of nuclear disarmament in accordance with the NPT. He felt
that was a realistic objective which the anti-nuclear movement could profitably support. In practice,
insisting on full disarmament leads to no reduction at all. Steven Haines made a plea for anti-nuclear
activists to engage in open and transparent dialogue with those who hold alternative views.
The final session of the day approached the key concept of "Good Faith", an essential element of the
NuclearNon-Proliferation Treaty (NPT) and the Advisory Opinion. This was examined byDr. John
Burroughs of the Lawyers Committee onNuclear Policy and Jacqueline Cabasso of the Western
States Legal Foundation. Good Faith has a precise legal meaning which the ICJ has defined. It
involves a genuine desire on all sides to reach a conclusion and a willingness to re-examine
seemingly intractable positions. The nuclear states intend to retain nuclear weapons well into this
century and cannot therefore argue that they are acting in Good Faith. John argued that the
outcomes of the 1995 and 2000 NPT Review Conferences provide a legal buttress to the disarmament
obligation. Jackie pointed out that the Blix report on Weapons of Mass Destruction highlights
the poor record of the nuclear states in implementing disarmament. However, we face an uphill
task. Post-9/11, the US government in particular has become "almost unbelievably arrogant,
militaristic and unilateral". A return to the ICJ could energise activists but its value and possible
outcome must be carefully examined.
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The second day was chaired by Professor ManfredMohr of IALANA Germany and Cora Weiss:
President of the International Peace Bureau.
Dr.Kate Dewes, of the New Zealand Disarmament and Security Centre, spoke on the development
of the World Court Project. from its early gestation in New Zealand to the delivery of the ICJ
Advisory Opinion in 1996. This was the first time a citizens' initiative of this sort had been
achieved. Kate described the struggle to engage the support of civil society and a majority of
sympathetic states in the UN in the face of outright opposition and attempted sabotage from the
nuclear states. Phon van den Biesen, Vice President of IALANA, then told us about role of the ICJ
in the international system and compliance with its judgements. This is mixed and the actual
composition of the court has to be taken into account.
The conference then examined national court experiences arising out of the ICJ opinion in various
jurisdictions. Phil Shiner of Peacerights, a UK lawyers' and activists' group, argued that litigation
in the UK, based on the ICJ Opinion, was likely to fail. Activists relying on the defence of necessity
had not fared well either. Hewas more optimistic about a nuanced approach based, for example, on
human rights law. Later in the day he spoke about "creative" legal action such as the citizens'
inquiries initiated by Peacerights on the invasion and occupation of Iraq and on Trident. There were
also legal opinions commissioned from top lawyers on such subjects as the Mutual Defence
Agreement with the USA. If such initiatives are carried out with authority and due process they can
have a significant political effect.
The response of German courts to Nuclear Weapons was described by Peter Becker and Otto
Jaeckel, both prominent members of IALANA Germany. Compared to the USA and the UK, there
have been encouraging results. In marked contrast to a similar case in the UK, a member of the
German armed forces had successfully claimed a conscientious objection defence after refusing to
take part in the preparations to invade Iraq.
Anabel Dwyer of the Lawyers Committee on Nuclear Policy is one of the few lawyers in the US
and the UK willing to work with nuclear resisters in court in very difficult circumstances. She
argued that that nuclear weapons are "fundamentally illegal, criminal and immoral." and that this
position is supported by the ICJ opinion. Like Angie Zelter, who spoke later on, non-violent
disarmament provides a legal remedy. However, the US legal system presupposes "denial of the
grave reality of dangers; refusal to recognize legal limits to Constitutional war powers; and failure to
acknowledge the obligatory remedy of disarmament negotiations."
Advocates Antonella Pecchioli and Marielena Giorcelli of IALANA Italy described a unique
initiative which arises from the US nuclear-armed aircraft based at Aviano in Northern Italy. Five
lawyers from IALANA Italy have filed a lawsuit in a civil court against the US Government, in the
person of Defence Secretary Donald Rumsfeld. The hearing is still in progress and we await its
results with considerable interest.
The core of the conference was the session on the proposed return to the ICJ. It involved Alyn
Ware, Lawyers Committee on Nuclear Policy, Jackie Cabasso, and Peter Weiss. It also gave rise
to considerable discussion and comment from the floor. There was strong support for once again
approaching the Court in the light of developments over the last ten years and views veered towards
an advisory opinion. This would not be binding but a declaration of the law would have considerable
political effect and energise civil society. If the question were centred on the need to clarify the
Good Faith issue, and how far the nuclear states are honouring this, it would build on the unanimous
ruling by the ICJ that negotiations in this spirit were a legal obligation, as well as on successive UN
resolutions.
However, it was not clear what part a series of nuclear policy issuesmight play in framing the
question put to the Court. These include such matters as NATO nuclear sharing, maintaining
nuclear weapons on high alert or launch on warning, and the possible use of nuclear weapons in
preventive strikes. These are urgent issues which would benefit from an authoritative ruling. The
danger, however, is that the Court's view on such matters might be fudged or even help legitimise
some of them. There is therefore a coherent argument for addressing only the Good Faith issue and
allowing the other elements to be used as part of the evidence to the Court. This approach received
more support during a planning meeting later the same evening but it was felt that further
soundings from sympathetic states were needed before a final strategy was adopted. It is hoped that
further plans for a return to the ICJ can be discussed during the IPB's Triennial Gathering in
Helsinki this September.
After lunch we were honoured to welcome Dr. Tadatoshi Akiba, Mayor of Hiroshima, to our
Conference. He is president of Mayors for Peace, which, in November 2003, launched an
Emergency Campaign to Ban Nuclear Weapons. This campaign has received strong endorsement in
resolutions passed by the European Parliament, the Conference of US Mayors, IPPNW, and
Abolition 2000. In 2006 Mayors for Peace is working on the “Good Faith Challenge” which
underlines the pledges made by the nuclear weapons states to achieve nuclear disarmament. This
challenge is allied to the insistence that cities must never be nuclear targets and corresponds
precisely with the basis on which the initiative to return to the International Court of Justice is
grounded.
The final session reflected the voices of activists in the field. Hans Lammerant outlined a Belgian
action strategy. A Complaint Day planned for this autumn in which complaints of illegality
involving nuclear weaponswill be delivered to the police. It is hoped that countries outside Belgium
can take part in this. Citizens' inspections of nuclear-related sites in Belgium have been long
established and individuals can associate themselves with direct action as signed-up accomplices.
Hans described the various legal points and pitfalls to be aware of when designing an action strategy
or defending an action in court.
Irenah Klink, Aktion-Voelkerrecht (International Law Campaign) represented young people in
Germany who are unwilling to "silently tolerate an intentional disregard for the prohibition of war as
enshrined in International Law." They have an inspirational and creative campaign which asks
citizens to add a signed brick to a wall which represents the protection given to us by the law.
During the conference aWall of Peace was built in the centre of Brussels.
Angie Zelter of Trident Ploughshares and Faslane 365 described these campaigns as examples of
peoples' disarmament and the use of international law to de-legitimise the UK's nuclear weapons
system and policies. It is necessary for lawyers and activists to work together to ensure that the
simple principles behind the international laws regulating armed conflict do not become obscured
and ignored but are strengthened. The Faslane Trident base has been blockaded at intervals for some
years. It has engaged the police fully and flooded the courts. However, Faslane 365 aims to block
the gates for a much longer period with small rotating groups.
George Farebrother, World Court Project UK emphasised the moral imperative underlying the
concept of "The Public Conscience" and the Affirmations of Freedom from NuclearWeapons which
will be collected from citizens worldwide as evidence of their principled opposition to nuclear
weapons.
The Conference closed with an encouraging message from Gisela Kallenbach MEP and a call to
action from Cora Weiss.
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Advantage was taken of large numbers of anti-nuclear activists in Brussels to arrange fringe events.
IALANA Germany organised a planning meeting on the Friday evening on to discuss the return to
theWorld Court, Hans Lammerant of Forum for Peace Action set up an Activist Workshop on
"The Legal Defence of Actions against Nuclear Weapons", following up the plenary session on
"Experiences with Domestic Courts" and several members of the conference viewed a showing of
the film "The Last Atomic Bomb", organised by one of its makers, Kathleen Sullivan.