!! draft !! Preface 4 introduction 9 chapter one 19


Constraints in the use of and ban on weapons



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Constraints in the use of and ban on weapons

A. General remarks


Let me now make a distinction that seems essential: the purpose of the principle of proportionality in jus in bello is not only to constrain the excessive use of weapons whose deployment is not prohibited, but also to prohibit entirely the use of particularly destructive weapons. In this regard, Michael Reisman says:

“At any moment, the ‘jus in bello’ is composed of two parts: what we may call ‘Part A’ consists of principles to be applied in determining the proper use and quantum of force in specific cases. ‘Part B’ contains a set of absolute prohibitions. Part A is quite indulgent to the specialist in violence in international conflicts. In Part B, in contrast, the drafters of international law impose absolute limits on the use of certain instruments and methods of violence, limits that the warrior may not suspend on the ground that those instruments or methods may be demonstrated to prove militarily necessary and proportional to that necessity in a particular urgent situation. Resort to Part B’s prohibited modes and instruments is impermissible, notwithstanding their potential military advantages and remains so even if the adversary resorts to them.” 126


I shall deal with the Part B category of prohibitions in a separate section. This is not for systematic but for practical reasons. Reisman notes the existence of a relationship between the increasing failure to comply with Part B prohibitions and the appalling increase in deaths and injuries among non-combatants.
Efforts to limit or ban particularly destructive or indiscriminate weapons are at the heart of international humanitarian law. Such restrictiveness is inherent in the principles of humanity, proportionality and distinction127. Some provisions have an essential character. They make up the core of the rules of constraint. It is imperative to “hold the centre.” This means the drawing of a clear line between those aspects of the principles of proportionality that are accessible to balancing processes – on a case-by-case basis – and those that are not, i.e. those means that are categorically disproportionate or indiscriminate.
For instance, the nature of some weapons is such that they inflict greater injuries – especially on civilians, but also on the opposing army – than is warranted by their strategic effectiveness.

B. Banning weapons


A number of treaties outlaw certain weapons on the grounds that their use cannot be justified by any rational cost-benefit analysis. In these cases, total bans and categorical prohibitions are the only effective solutions. Balancing the attainment of military and political ends with the costs, in terms of life, is inadequate in such cases. At various points in history, the international community has concluded that there was no situation that could justify the use of certain weapons.
In several cases, the international community has succeeded in prohibiting certain kinds of weapon128. Each legal instrument represents a step on the way towards a safer world, an issue that has been closely examined from the perspective of the relatively new concept of human security129. The most prominent bans are these:
The Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction was adopted in 1972 and entered into force in 1975. As its name suggests, the Biological Weapons Convention bans the development, production, transfer, retention and acquisition of biological weapons and requires that stockpiles be destroyed. It was, arguably, the first comprehensive multilateral disarmament treaty prohibiting an entire category of weapons. Ratification of the treaty, though widespread, is not universal. However, more than 160 States have become party to the Convention, among them almost all States of military significance. According to the ICRC’s Study on Customary International Humanitarian Law, all States are now prohibited from using biological weapons on the basis of customary law130.
The Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction is no less sweeping in intention131. It was adopted in 1993 and entered into force in 1997132, the result of many years of effort towards this end. The Gas Protocol of 1925 was a major step. Although the Protocol prohibited the use of chemical weapons it did not address their production, stockpiling and destruction. In that sense, it did not “exclude completely the possibility of the use of chemical weapons.”133 The use of chemical weapons by Iraq, during the war against Iran and against the Kurdish population in northern Iraq, gave international negotiations a new impetus. In the euphoric years after the end of the Cold War, the Chemical Weapons Convention was understood to be an important step in “progress[ing] towards general and complete disarmament under strict and effective international control, including the prohibition and elimination of all types of weapons of mass destruction.”134 Regrettably, certain significant States - such as Israel, North Korea, and Syria - have not yet acceded to the Convention, but more than 180 others have ratified it. As is the case with biological weapons, the use of chemical weapons is now prohibited on the basis of customary international law135.
In 1997, another total ban on a particular category of weapons was adopted, namely the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction. This Convention entered into force in 1999. Anti-personnel mines had been used for many decades and their military usefulness was undisputed. Efforts to put an end to these weapons arose because the consequences of their use violated one of the basic principles of international humanitarian law, the principle of distinction. The preamble to the Convention begins by declaring that the States Parties are determined “to put an end to the suffering and casualties caused by anti-personnel mines, that kill or maim hundreds of people every week, mostly innocent and defenceless civilians and especially children (…) and have other severe consequences for years after emplacement.” The Convention achieved a total ban on the possession and use of this ‘indiscriminate’ weapon. Although it quickly found widespread support, some of the most powerful States are yet to ratify it.
Before examining certain cases of particular interest, and recent successes, in more detail, it might be useful to briefly mention the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (CCW), which was adopted in 1981. This framework convention does not itself ban particular weapons, but allows for the successive banning of certain conventional weapons by means of additional protocols, each of which has to be ratified separately (the notion of conventional weapons excludes weapons of mass destruction, i.e. biological, chemical and nuclear weapons). As its title suggests, the purpose of the CCW is the progressive banning of weapons that are “excessively injurious or have indiscriminate effects.” Since the adoption of the Convention, several Protocols have been drawn up: the two most recent are Protocols IV (1995) and V (2003). The former bans blinding laser weapons; the latter regulates the clearance of explosive remnants of war136.

Most recent example: The ban on cluster bombs


The idea of arms control might, for some of you, evoke images of a dreary process, dragging on interminably without producing any tangible results. Well, that image may often be accurate. But sometimes, quite unexpectedly, there are rapid changes in international law. I would now like to allude to the realization of a comprehensive ban on cluster bombs.
How was such an ambitious goal achieved so swiftly? As in every instance when international humanitarian law has made significant progress, it was, more than anything else, the shared outrage of mankind that galvanized the international community into action. In 2006, Israel and the Hezbollah fought a brief but ferocious war in southern Lebanon that saw extensive use of cluster bombs. This widespread use of cluster bombs by the Israeli armed forces gave rise to widespread criticism. A network of non-governmental organizations or NGOs - the Cluster Munition Coalition, comprising over 200 NGOs, - started a worldwide campaign. As a result of close cooperation between like-minded States, civil society, the ICRC and the UN that followed, less than two years later, the Convention on Cluster Munitions (CCM) was drafted. And contrary to the expectations of most experts, the Convention did not simply limit the use of cluster bombs, or place some restrictions on the kind of cluster bombs that would be permitted: it comprehensively banned them137.
What are cluster bombs? They are area weapons that were first used on a large scale by U.S. forces in the Vietnam War.138 In a cluster bomb, hundreds of “bomblets” are lodged within a hollow dispenser. When the bomb is dropped, the dispenser splits open and releases the bomblets. Depending on the fuse that is used, the bomblet will explode before, during or after impact. In addition, the casing of the bomblets is designed to fragment into small particles. Thus, the cluster bomb can cover, within a controlled fragmentation pattern, a wide area. While the shower of fragments might have some effect on light military targets, usually cluster bombs are effective only against human beings. Because of the velocity at which the fragments are discharged, everyone in the area is likely to be killed or severely wounded. In addition, significant numbers of bomblets do not explode after deployment but remain ‘live’ - in some instances, for a long time - and can detonate on contact. In this way, they cause numerous civilian casualties, even after war has ended. The Convention on Cluster Munitions considers such weapons to be indiscriminate by nature and therefore incompatible with the principles of international humanitarian law.
Within a remarkably short period of time, the Convention on Cluster Munitions (CCM) was drafted. A far-reaching result was achieved: the Convention prohibits all use, development, production or other acquisition as well as all transfer of cluster munitions, requires the destruction of stockpiles and provides for a monitoring mechanism. On 30 May 2008, 111 States adopted the Convention at a conference in Dublin. It will become binding international law when it enters into force on 1 August 2010, six months after the thirtieth instrument of ratification has been deposited.139 The CCM provides the most recent example of humanity’s efforts to restrict the means of warfare; to counter, one might say, mankind’s ingenuity in finding ever more powerful means to do itself harm.

C. Limiting the Use of small arms as a case in point


All the treaties mentioned in the previous section of this chapter aim to outlaw certain weapons on the grounds that their use cannot be justified by any rational cost-benefit analysis. Most weapons, however, are not proscribed. The law permits their use, but only when they do not cause wanton injury, to combatants and non-combatants, and are not of an indiscriminate nature.
At the national level, many States have significantly limited their arsenals to reduce the risk of armed violence. Police and national armed forces have a monopoly on the possession and use, under law, of arms. It was not always thus. Internationally, many States seek arms control and disarmament in order to reduce the risk of the use of weapons and of armed conflict, not always with success.
Small-calibre weapons140 are an important case in point. They kill more people than does any other type of weapon. At present, roughly 700 million small arms are in circulation throughout the world, 100 million of them in Africa. They are, quite properly, called Africa’s weapons of mass destruction.141 Historically, the weapons that have caused the most casualties and deaths in all conflicts are small arms. Today, when most conflicts are internal, this is increasingly the case. It is estimated that about 90% of the casualties in recent armed conflicts were caused by small arms; and about 55% of the casualties among UN peacekeeping forces may be attributed to small arms. A recent study estimates that, at present, 1000 companies in almost 100 States produce small arms and ammunitions, representing a remarkable increase in companies producing small arms during the last decade. The last ten years have seen an overall reduction of arms transfers, but this development in the arms trade has been verified only with respect to major weapons systems. There are clear indications that with regard to small arms, the trend has been in the other direction over the same period.
Small arms all too often fall into the hands of untrained and undisciplined forces, who are unaware of or unwilling to respect humanitarian law. The result, frequently, is large-scale casualties, especially amongst civilians. There is a relationship between the availability of weapons and violations of humanitarian law resulting from their use.
There is an urgent need to create norms, standards and procedures to reduce or eliminate the availability of such weapons. In 2001, the UN General Assembly adopted the UN Protocol Against the Illicit Manufacturing of and Trafficking in Firearms142. It entered into force in 2005. However, only 164 States have ratified it. The US, Russia and France have not signed the Protocol; China and the UK have signed but not ratified it. Soon after the adoption of the Firearms Protocol, the principal UN policy framework in relation to small arms and light weapons was established by the UN Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects. This has paved the way for negotiating further agreements, at both the regional and the global levels.
An interesting approach for the future might be to oblige States to bear a certain responsibility for the use of arms exported by them. Under international humanitarian law, States are bound not only to respect the law but also to ensure that others respect it. Logically, this means that they should bear some responsibility for the unlawful use of weapons exported by them, especially when the consequences can be foreseen.
Improvements could be made along the following lines143: First, States could limit the transfer of weapons, either directly or through licence, to States that are party to treaties of international humanitarian law. That is to say, exports will be allowed only to those States that have ratified international humanitarian law conventions and trained their armed forces in international humanitarian law. Importing States must also have demonstrated that they take measures to suppress and punish violations of international humanitarian law. Also, restrictions could be placed on those States on whose territories war crimes have taken place recently, and who have made no effort to punish culpable parties. Second, prohibitions could be imposed on the transfer of weapons to States in which the structures of authority are precarious, and which are therefore unlikely to be able to enforce international humanitarian law. Third, limitations could be placed on the transfer of weapons to States that have no effective control over the domestic distribution of weapons, who imperil not only their own citizens but often also those of neighbouring States. Additionally, the international community could help States that have just emerged from an armed conflict to maintain or acquire direct control of arms or armaments on their territories in order to prevent the cross-border flow of weapons.
Small arms pose a particular challenge to the international community. Numerous manufacturers are involved, and every regular army needs a considerable stock. Let me move on to a second example that might also be typical of the problems that confront efforts to control the international flow of arms.

Prohibition of nuclear weapons: Relative or absolute?


On 6 August 1945, the first atomic bomb was dropped on Hiroshima. It was followed three days later by a second bomb on Nagasaki. The two bombs produced approximately 150,000 immediate victims. More than 100,000 human beings died in the following weeks and months as a result of injuries and nuclear radiation. The victims were mainly civilians. The consequences of dropping the bombs, for human health, were long-lasting: they are being felt even now.
The following descriptions by victims are taken from Hiroshima Notes by Kenzaburô Oé, the Japanese writer:

“The war was almost over. Everyone hated it. But they were all submissive, and heeded every beck and call of the army and the government (…).

It was just like hell – a procession of ghosts, a sea of flames. But I didn’t see the devil, so I thought it was something happening on this earth (…).

An atomic bomb doesn’t just fall; someone has to drop it (…).

It was eight o’clock. There was a great flash; it was like nothing ever seen before. The old woman neither felt a jolt nor heard a bang. The ceiling and the roof just fell down together, the floor jumped up, and she was caught between them.”144
Similar and equally moving words can be found in the testimony of witnesses before the International Court of Justice (ICJ) in 1996. The central question before us is whether the use or even the production, development and stockpiling of nuclear weapons is legal. From the perspective of humanitarian law, the answer, it seems to me, is obvious. But the question of the legality of the use of nuclear weapons is often not neatly separated from the political interests linked to their possession. While States that do not possess nuclear weapons reiterate the illegality of their use, nuclear States resist any clear and explicit ban. Consequently, there is no international convention prohibiting the use of nuclear bombs.
The atomic bombings were unlawful, as Bert Röling145 pointed out, because they were attacks on the civilian population. They were not directed against military targets. Neither in Hiroshima nor in Nagasaki was the civilian population given warning of the bombing. The dropping of the atomic bombs contradicted the rule adopted at the St Petersburg Conference in 1868 that “the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy.” From the very outset, the ICRC doubted the legality of this new weapon of mass destruction146. Nuclear weapons cannot discriminate between combatants and non-combatants, as pointed out by the ICRC in an appeal launched in 1950:

“Within the radius affected by the atomic bomb, protection is no longer feasible. The use of this arm is less a development of the methods of warfare than the institution of an entirely new conception of war, first exemplified by mass bombardments and later by the employment of rocket bombs. However condemned - and rightly so - by successive treaties, war still pre-supposed certain restrictive rule [sic]; above all did it [sic] presuppose discrimination between combatants and non-combatants. With atomic bombs and non-directed missiles, discrimination becomes impossible.”147


Obviously, nuclear weapons cannot discriminate between combatants and non-combatants. The bombings of Hiroshima and Nagasaki resulted in no military advantage whatsoever because the civilians affected by them were not taking part in the war, whose end was not dependent on their destruction. The use of the two bombs was thus pointless from a military point of view. And they had, arguably, no decisive impact on Japan’s attitude. They were not the means by which the war was brought to an end148. They killed indiscriminately and arguably to no purpose. And they tainted the cause of the Allied powers, and their entitlement to judging the defeated Japanese. It is worth quoting the thoughtful observations of Bert Röling:

“I sometimes had contact with Japanese students. The first thing they always asked was: ‘Are you morally entitled to sit in judgement over the leaders of Japan when the Allies have burned down all of its cities with sometimes, as in Tokyo, in one night, 100,000 deaths and which culminated in the destruction of Hiroshima and Nagasaki? Those were war crimes.’ I am strongly convinced that these bombings were war crimes. It was terrorizing the civilian population with the purpose of making war painful beyond endurance so that the civilian population would urge the government to capitulate. It was terror warfare, ‘coercive warfare.’ And that is forbidden by the laws of war, for sure. So why discuss it with the General [i.e. Douglas MacArthur]? That would have been only embarrassing, I think (…) Of course, in Japan we were all aware of the bombings and the burnings of Tokyo and Yokohama and other big cities. It was horrible that we went for the purpose of vindicating the laws of war, and yet saw every day how the Allies had violated them dreadfully.” 149


Courts have pronounced on the legality of nuclear arms, but with a somewhat muddled outcome. In Shimoda et al v. The State, a Tokyo District Court observed in 1963 that:

“Any weapon the use of which is contrary to the customs of civilized countries and to the principles of international law should ipso facto be deemed to be prohibited even if there is no express provision in the law; the new weapon may be used as a legal means of hostilities only if it is not contrary to the principles of international law. (…) In these circumstances, it is proper to conclude that the aerial bombardment with an atomic bomb of both Hiroshima and Nagasaki was an illegal act of hostilities under international law as it existed at that time, as an indiscriminate bombardment of undefended cities. This is so since aerial bombardments with an atomic bomb, even if its target is confined to military objectives, brings about the same result as blind aerial bombardment because of the tremendous destructive power of the bomb.”150


In the cases regarding nuclear tests (Australia/New Zealand v. France)151, the ICJ was concerned with the atmospheric nuclear tests conducted by France in the South Pacific. The Court had first to consider the essentially preliminary question as to whether a dispute exists and to analyse the claim submitted to it. In the course of the proceedings, France, by various public statements, announced its intention, following the completion of the 1974 series of atmospheric tests, to cease the conduct of such tests. Since the termination of those test was the original and ultimate objective of Australia, the court found the objective of Australia being already accomplished. Thus, as France had undertaken the international obligation to hold no further nuclear tests in this area, the claim no longer had any object. Therefore, the Court was not called upon to give a decision thereon.
In 1996, the ICJ rendered an advisory opinion on the legality of the use of nuclear weapons. The opinion represented the first decision of the World Court that expressly sets limitations to nuclear weapons in terms of international law. In its conclusions, the Court ruled that "the 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". However, in the following sentence, the Court held that in view of the present state of international law, taken as a whole, and of the elements of fact at its disposal, it could not reach a definitive conclusion on the legality of the use of nuclear weapons by a State in the extreme case that it was compelled to do so because “its very survival would be at stake”152. One might wonder what the “very survival of the State” actually means. Does the defence of the “State” mean that the population of its adversary as well as its own and the population of third countries might be threatened with extinction?
The request for an advisory opinion, which was made by the UN General Assembly, was very controversial at the time: it was feared that the ICJ would declare the use of nuclear weapons legal. This, though much dreaded, did not happen. Nevertheless, the advisory opinion was dangerously ambiguous in its findings. And the finding that the use of nuclear weapons might not be illegal in very particular circumstances was the subject of vigorous dispute among the judges. It was adopted by seven votes to seven, with the President of the Court casting the deciding vote.
However, an advisory opinion should not prevent us from forming our own views. Unlike the International Court of Justice, we academics and institutions like the Hague Academy where these thoughts were presented, are not influenced by the major powers or the nuclear powers. Therefore, our findings may differ. The problem might now be analysed and evaluated from a different perspective. From the viewpoint of international humanitarian law, there is – so it seems to us – no such justification as a threat to the existence of a State. We agree with one of the judges involved in that advisory opinion of 1996, Judge Mohammed Bedjaoui, who wrote in a separate Declaration that:

“By its very nature the nuclear weapon, a blind weapon, (…) has a destabilizing effect on humanitarian law, the law of discrimination which regulates discernment in the use of weapons. Nuclear weapons, the ultimate evil, destabilize humanitarian law which is the law of the lesser evil. The existence of nuclear weapons is therefore a major challenge to the very existence of humanitarian law …”153


If that is so, we have to ask ourselves: How can the “ultimate evil” be considered legal? How can a body of law condone a situation that challenges its very “existence”? This view was supported by one of Judge Bedjaoui’s colleagues, Judge Geza Herczegh, who noted in a Declaration that:

“The fundamental principles of international humanitarian law, rightly emphasized in the reasons of the Advisory Opinion, categorically and unequivocally prohibit the use of weapons of mass destruction, including nuclear weapons. International humanitarian law does not recognize any exceptions to these principles.“154


Nuclear weapons, we would therefore argue, belong – in Reisman’s terminology – in category B. They should certainly be moved into that category; and they should, de lege ferenda, absolutely be prohibited. Nuclear weapons violate several basic principles of international humanitarian law: they are indiscriminative by nature, they cause unnecessary suffering and they render death inevitable.155 Philosophers such as Karl Jaspers and Carl Friedrich Weizsäcker156 wrote about the challenges and threats of the nuclear age. But despite such efforts, the nuclear arms race is still running its course. The efforts of the international community to stop proliferation have been largely ineffective. What conclusions should we draw from all these efforts? Is Weizsäcker’s pessimistic view, that only weapons with no strategic significance will ever be banned, the right one? Experience would suggest that it might be: whenever a weapon has been found to give a military advantage, efforts to have it banned have mostly been unsuccessful. This was true of ‘Greek fire’ in antiquity and of medieval crossbows. However, we have also seen that in the 20th century, some weapons were banned despite the fact that their military usefulness was undisputed.
The main problem is that decisions on nuclear weapons are taken by theoreticians and strategists. Their arguments revolve around abstract concepts, strategic advantages and things of that sort. This is the greatest danger: making the fact of suffering an abstract idea. The ICJ, too, seems to have succumbed to this: it seems to be suggesting that the use of nuclear weapons, to ensure the survival of a State, might be lawful. But how can a nuclear disaster secure the survival of a State? Does a State have an existence independent of the people who inhabit it? Does it serve any purpose if the State were to survive as an abstract concept, after all its inhabitants have been wiped out in an all-out nuclear war? Let us say that two people are sitting together in a boat, and that one of them happens to have a drill. Is there any point at all in that person threatening to drill a hole in the boat and drown the other? The same applies to the abstract concept of sovereignty, as Judge Mohammed Shahabudden has pointed out:

“… however far-reaching may be the rights conferred by sovereignty, those rights cannot extend beyond the framework within which sovereignty itself exists; in particular, it cannot violate the framework. The framework shuts out the right of a State to embark on a course of action which would dismantle the basis of the framework by putting an end to civilization and annihilating mankind.”157


In another dissenting opinion, Judge Abdul G. Koroma, observed that

“…the Court flinched and failed to reach the only and inescapable finding, namely,



that in view of the established facts of the use of such weapons, it is inconceivable that there is any circumstance in which their use would not violate the principles and rules of international law applicable in armed conflict and, in particular, the principles and rules of humanitarian law.”158
Thus, what is important is to see and to listen. To look at the devastation inflicted on Hiroshima and Nagasaki. To listen to the testimony of victims. Compared to these voices, abstract discussions about the “use” of nuclear weapons are irrelevant.
  1. Concluding remarks: Making the law effective


The rules of international law that have been designed to constrain warfare are far from perfect. The most alarming gap in this framework of rules is that the international community has not yet succeeded in imposing a total ban on nuclear weapons. But there are also urgent problems with regard to the implementation of existing rules. Let me, in the context of prevention, make a few observations.

A. New weapons, means and methods of warfare


States Parties are obliged, under Article 36 of Additional Protocol I, to ensure that the employment of new weapons, means or methods of warfare complies with the rules of international law159. This seems to be a promising way to check the lawfulness of weapons before they are actually used. The St Petersburg Declaration succeeded in banning explosive projectiles of a particular kind before any army could use them. This ban was based on the recognition that any military advantage provided by these weapons would be temporary and would disappear sooner or later. The same is true of any new weapon: even the most sophisticated ones will be replicated at some stage. The provision in Article 36 of Additional Protocol I stipulates that: “In the study, development, acquisition or adoption of a new weapon, means or method of warfare, a High Contracting Party is under an obligation to determine whether its employment would, in some or all circumstances, be prohibited by this Protocol or by any other rule of international law applicable to the High Contracting Party.” The result of such a review should lead the State in question to authorize, regulate or prohibit the employment of a particular weapon or method of warfare, depending on the circumstances. The lawfulness of weapons should be determined at an early stage. States should involve the scientific community - medical, technical, and environmental experts - in the processes of assessment and review160. Reviews should take place as early as possible. That may be during the research-and-development phase or when the weapon is ready or acquired. Reviews must, in any case, take place before a weapon is put into use. Finally, transparency in weapons reviews is desirable.

B. Citizens taking centre stage


Initiatives taken by ordinary citizens can be instrumental in making the law effective. In 1999, a Scottish sheriff acquitted three activists who had been protesting against an installation housing Trident missiles. Such missiles are not reconcilable with international humanitarian law. The court dealt with the question for days and based its judgment on the ICJ’s Advisory Opinion on the legality of the threat and use of nuclear weapons161.
All of us should support this development: by trying to apply the spirit of international humanitarian law to arms control and, more precisely, by considering its fundamental principles as fully applicable to the law of weaponry162; by stripping the discussion of all technical subtleties and jargon; and by contesting the tendency to view disarmament as exclusively a matter for expert panels. It is, in fact, a most pressing matter and concerns each and every one of us. Perhaps the most pressing, and the most neglected, issue for us to solve is nuclear, biological and chemical warfare. Raising this subject often causes “realists” to roll their eyes. But some time ago, even implacable “realists” such as Henry Kissinger and George Shultz bagan to talk of “nuclear madness.” As more States acquire nuclear weapons the likelihood of further proliferation and of nuclear wars and nuclear terrorism will only grow.163
Nuclear weapons are – as Carl Gustav Jung said - a devilish means of destruction. They were invented by perfectly harmless gentlemen, by reasonable, respectable citizens. And when the whole thing blows up and causes an indescribable inferno, nobody seems to be responsible. It simply occurs, yet it is all man-made164. How are we facing up to this risk? How can we break out of the stupor or fatalism that seems to have gripped humanity? What can we do?
Two relatively new perceptions seem to hold out promise for the further development of international law, and particularly for humanitarian law. The first is the concept of human security165. A new paradigm in international law, this concept challenges the traditional notion of security centred on States by replacing it with one that places the individual at the centre. From this point of view, the security of the individual becomes one of the most important aspects of international politics. As for international humanitarian law, human security proved especially relevant in the area of disarmament and arms control, particularly for the Convention on anti-personnel landmines. When human security became a paramount consideration, States could no longer justify, by referring to national security interests, the enormous collateral damage caused by landmines, their indiscriminate effects and their persistence after conflict. And this led to the triumph of the argument that the wide-ranging adverse post-conflict impact on human beings of anti-personnel mines far outweighed any military advantage that those weapons offered. In addition to this shift, the most astonishing aspect of the negotiations over the Convention was probably its multilateralism. While the UN and the ICRC remained the key players along with States like Norway and Canada, the momentum for the process was provided by the involvement of a number of civil society actors (NGOs, for instance) and the general public. Therefore, it can reasonably be argued that this treaty has set new standards not only in humanitarian advocacy but also in international lawmaking towards the creation of a more secure world.
This development leads us directly to the second insight: the importance of human consciousness. Human consciousness is probably more important than any institutional machinery. We all remember the use of chemical weapons against the Kurdish villages of Halabja and Zardan in 1988. Hundreds were killed at a single blow, the life of entire villages frozen in the blink of an eye, mothers and children torn out of their daily lives, gassed on the spot where a moment ago they were carrying out their daily tasks. These pictures have gone around the world. They are burnt into our individual and collective memories. The same can be said about Kim Phuc, the Vietnamese girl who was photographed in 1972 as she ran down a road naked, her body scorched by napalm, in flight from the aerial bombardment of her village. The photograph also shows a few screaming children running away from a number of American soldiers equipped with helmets and machine guns. In the background, a black cloud of smoke obscures the village that has just been destroyed. Kim Phuc survived. Today, she says: “The destiny of Vietnam and a picture turned me into a living symbol of the insanity of war.”166 She is convinced that the picture that made her world-famous was and still is more powerful than bombs. As far as I know, no comparable photographs of Hiroshima and Nagasaki exist. This is a matter of great regret: such pictures could have sharpened human consciousness.
Kofi Annan, the former Secretary-General of the United Nations, has said that we are “sleepwalking towards disaster.” Perhaps the Convention on Cluster Munitions – thought impossible by most experts two years ago – can point the way: what is most likely to succeed is a bottom-up approach. It is individuals whom international humanitarian law protects, and it must be individuals who take up its cause and try to further it. Therefore, two measures ought to be envisaged: first, we must open up international legal institutions and procedures and make them more flexible so as to allow broader participation. Greater significance should be given to bottom-up approaches, i.e. initiatives from civil society and from other actors who do not usually have access to international politics. This should not be confined to the relatively small area of norm setting; it should also take in the wider field of preparing, implementing and verifying rules167. Second, the effective realization of such reforms must be accompanied by an increase in awareness of public concerns among international lawyers, politicians and other actors.



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