�APOCALYPSE SOON.� REALLY? AND WHO CARES?

By Tecola W. Hagos

PART ONE

I. Introduction

�You hypocrite, first take the plank out of your eye, and then you will see clearly to remove the speck from your brother's eye.� [Luke 6: 42] There is a very interesting article by Robert S. McNamara in the May/June issue of FP [Foreign Policy], on the danger of stockpiling nuclear weapons and their accidental or intentional use. [Robert S. McNamara, �Apocalypse Soon,� FP [Foreign Policy], May/June, 2005, pp29-35.]. McNamara has been often portrayed as the hawkish Defense Secretary during the Vietnam War. Now it has come to light also, even more importantly, that he was the central player during the Cuban missile crises, which incident is used by McNamara in his article as his main point to fortify his concern about the possibility of  the use of nuclear weapons intentionally. McNamara stressed the fact how close the two Super Powers were to a nuclear all-out war during the Cuban missile crisis.

Even though we may be skeptical to listen to newly converted �peace activists� and cheerleaders for the Democratic Party campaign against George Bush in the 2005 Presidential Election, it is important that we really consider the ramification of the article by McNamara. [The article by McNamara may be considered as an extension of the spellbinding and brilliant presentation by Michael Moore of the documentary featuring McNamara in The Fog of War.] This is one example where age (growing old gracefully) definitely has imparted wisdom to an individual. I have never been a great fan of McNamara. In fact, his performance at the World Bank (or the lack of it), and his role during the Vietnam War, directly or indirectly responsible for the death of millions of human beings, is not something that can be easily forgotten or forgiven. McNamara has admitted in his narrative in The Fog of War that he and others could have been tried for war crimes had there been a trial [like in Nuremberg]. My general feeling is that no matter what McNamara might have done or failed to have done in his heydays, he has now truly mended his mistakes, and is teaching as all not to get caught in a kind of political or power loop where we find ourselves helplessly carried into making decisions that would hurt far too many fellow human beings.   

McNamara opened his essay with an important all-inclusive thesis, which sadly he did not fully develop because of the limits usually set to articles in journals and magazines of that nature. He wrote, �It is time�well past time, in my view�for the United States to cease its Cold War-style reliance on nuclear weapons as a foreign-policy tool. At the risk of appearing simplistic and provocative, I would characterize current U.S. nuclear weapons policy as immoral, illegal, militarily unnecessary, and dreadfully dangerous. The risk of an accidental or inadvertent nuclear launch is unacceptably high.�  [Emphasis added] In this article, by way of providing some of the missing foundation for the rhetoric of the essay by McNamara, I will attempt to develop the moral and legal basis for the argument to ban completely nuclear weapons from the face of the Earth. And then, I will challenge the activities and the right to maintain nuclear weapon arsenal by the Permanent Members of the Security Council. 

II. Legal Basis for Banning Nuclear Weapons

A. General Principles of International law and Practices

The first item one must consider in the effort to get rid of nuclear weapons is to look into the development of international law and principles. The �international law and principles� I am referring to here is not the narrowly understood instrumentalist or constructivist (positivist) international law and principles, but the far more deeply seated normative international law that has its roots firmly planted in Platonist-stoic natural law. It is a fact that jurists writing on international law avoid the direct question of what international law is and opt to address the question of sources of international law and principles instead. The sources of international law and principles are commonly understood to be multifaceted as indicated in Article 38 of the Charter of the United Nations Statute of the International Court of Justice. The multiplicity of sources does not mean relativism and conditionality, for all sources are oriented toward one goal. For the purpose of our discussion we need to acknowledge foremost that societies through the ages have made a distinction between the way societies in conflict justified their cause for going to war from how their soldiers conducted themselves in the actual battles. In our modern parlance we now have the concept of a �just war� properly bisected into two sets of principles that are identified by Latin phrases�the jus ad bellum and the jus in bello.

1. �Just Cause� vs. �Just War�

�I dare say you love him not so ill, to wish him here alone, howsoever you speak this to feel other men's minds: methinks I could not die any where so contented as in the king's company; his cause being just and his quarrel honourable.� [Shakespeare, Henry V: Act 4. Emphasis added.]

The idea of a �just cause� to go to war may be distinguished from the idea of a �just war.� In the sense that a �just cause� may deal with problems involving the leadership in carrying out its executive duties and commitments, whereas a �just war�  involves the nation as a whole on questions of national survival and serious threat to the existence and security of a nation. In that sense going to war for territorial acquisition in the past may have an element of a just cause, for example, but it does not necessarily constitute a just war. The quotation from Henry V above may be considered as a dramatist�s interpretation of the implied distinction between �a just cause� and �a just war.� The philosopher-historian Howard Zinn made that important distinction in one of his incisive articles on war and human suffering. �I believe that the progressive supporters of the war have confused a �just cause� with a �just war.� There are unjust causes, such as the attempt of the United States to establish its power in Vietnam, or to dominate Panama or Grenada, or to subvert the government of Nicaragua. And a cause may be just--getting North Korea to withdraw from South Korea, getting Saddam Hussein to withdraw from Kuwait, or ending terrorism--but it does not follow that going to war on behalf of that cause, with the inevitable mayhem that follows, is just.� [Howard Zinn, �A Just Cause, Not a Just War,� The Progressive, December, 2001.]

The �just war� concept is a modern condensation of ideas developed over the ages throughout all civilizations predating Christianity. The reason for going to war and how one conducts oneself in the actual battle ground had preoccupied mankind throughout the world. The great epic stories told over and over in all societies about great wars and great warriors often spoke of �just wars� and heroic conducts of warriors. No one is undermining here the atrocities of wars of past or of the present times. War is horrible, thus speaking of �just war� is simply a paradigm of limited value. If we confine ourselves for a moment to the Christian world in following the development of the �just war� idea leading to some of the institutions and legal regimes of our time, it might help us relate and even sympathize with those who advocate for total banning of nuclear weapons from the face of the Earth.  Early Christians were pacifists. In fact, it was only after Christianity became a state religion during Constantine�s reign in AD 313, that Christians had resorted to the use of violence to defend against �barbarians� from the North in order to preserve their newly acquired empire. The New Testament had hitherto provided the authority for not defending oneself against persecution and violence. The stoic philosophy of the time must have influenced greatly the Christian pacifist theology. However, with Christianity becoming a religion of the �State,� some change had to be made from pacifism to active engagement in wars.

By AD 400, the challenge to Rome was taking its toll and non-Christian Romans blamed Christian pacifism as the cause of the decline of the Roman Empire. St Augustine provided the first comprehensive concept of the �just war� whereby Christian Emperors may defend their Christian empire without violating God�s commandment and the teachings of the Christ of love and peace. Augustine found authority in the Old Testament wherein �violence� is the main stay of both God and man, in order to justify the new Christian leaders to be able to fight without breaking any of the biblical commandments or violating the teachings of the Christ.

[The teaching of the Christ is so radically different from the stories and principles in the Old Testament that any parallel or derivative relationship claimed by politicians and theologians throughout the ages is absolutely bogus and serves a utilitarian and not religious truth. The Old Testament glorifies and endorses the most perverse and savage acts of genocide over and over, and no amount of interpretation and doctoring of the text would remedy that defect. At any rate, whatever religious text I have read, and I have read several, I find mankind, with such limited resources and fragile body, cast out naked with nothing more than his capacity to reason, to be far nobler and far more worthy of respect in his deeds and his pitiful struggle to survive than the �God� or �Gods and Goddesses� supposedly creators of the universe. For example, neither the Holocaust nor the Genocide in Rwanda, where millions of innocent human beings were murdered by utterly savage leaders (representing defects in mankind), could even amount to a fraction of the destruction of the entire world as was caused by the acts of a vengeful God who wanted to punish a few sinners by flooding the entire world, as reported in the Old Testament, in the story of the �Flood� of Noah�s time.] 

It is extremely rare to find the terms jus ad bellum and jus in bello used before 1930. Neither was mentioned during the 1899 and 1907 Peace Conferences, among whose aims was codification of the law of war. Enriques used the term jus ad bellum in 1928, having apparently invented it on the spot to serve a specific need. Keydel drew a clear distinction between the two branches of the law in a well-researched thesis on recourse to war published in 1931 in a scholarly review edited by Professor Strupp, but did not use the terms in question. Keydel, like Strupp himself, diligently enumerated all the Latin words and expressions relating to the matter. It may be concluded, therefore, that up to the early 1930s the terms jus ad bellum and jus in bello had no currency. They began to gain recognition towards the middle of the decade, in particular, it would seem, at the prompting of the School of Vienna. Among the first to use these terms was Josef Kunz, who may well be the one who coined them. Kunz had a gift for formulating precise concepts and giving them incisive Latin names (he later came up with the term bellum legale); the phrases we are concerned with appear in an article he published in 1934 and a book that followed in 1935. Two years later, Alfred Verdross used the term jus in bello in exactly the same way as Kunz, placing it in parentheses after the word Kriegsrecht in his handbook on public international law. The chapter on recourse to force was published only in the second edition, and here the term jus ad bellum appeared. Around the same time, R. Regout made frequent use of both terms in his book on the doctrine of just war, making it clear from the outset that they reflected a fundamental distinction, and W. Ballis followed suit. It is impossible to say whether these were independent developments or otherwise.� [International Review of the Red Cross no 320, p.553-562 by Robert Kolb, �Origin of the twin terms jus ad bellum/jus in bello.� Footnotes omitted.]  

After the Second World War, the community of nations created the United Nations. Ethiopia was one of the founding members of the United Nations represented by its highly capable international law expert, Aklilu Habtewold. In the Preamble of the Charter of the United Nations, the community of nations declared their primary reason for the creation of the United Nations: �to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind.� In the operative or substantive provisions of the Charter in Chapter VI it is envisioned that all conflicts would be resolved peacefully. Even the case of self-defense against �an armed attack,� the problem is addressed as an exception to the principle of peaceful conflict resolution as stated in Article 51 of  Chapter VI.

In his 1960 book, We Hold These Truths, John Courtney Murray, S.J., the American theologian, put together the many ethical and legal principles of a �just war,� principles that were developed over the centuries, into a unified whole. The Catholic Bishops of America in 1983 issued a pastoral letter, The Challenge of Peace, on banning the use of nuclear weapons even in cases as a counter deterrence, and they also reaffirmed the �just war� international principles that had evolved from the days of St. Augustine to the modern times. [U.S. Catholic Conference, The Challenge of Peace: God's Promise and Our Response (Washington, D.C., 1983.)]

2. The United Nations System and the International Court of Justice (ICJ)                           
The General Assembly of the United Nations by Resolution 1653 (XVI) of 24 November 1961, has declared that the use of nuclear weapons is "a direct violation of the Charter of the United Nations" and "is contrary to the rules of international law and to the laws of humanity", and that any State using nuclear weapons is to be considered "as committing a crime against mankind and civilization." Resolution 1653 (XVI) was adopted by a vote of 55 to 20, with 26 abstentions. Four of the five Permanent Members of the Security Council of the United Nations voted against that Resolution. That fact should not impress us at all, for the Members were already amassed huge stockpile of nuclear weapons in their arsenals. Moreover, there were also other subsequent resolutions, such as Resolution 36/92 I, which called for the prohibition of the use or threat of use of nuclear weapons.

The ICJ, initially declined to give its opinion on the legality of the threat or use of nuclear weapons when requested by the World Health Organization (WHO). The Court stated, �It is not able to give the advisory opinion which was requested of it under World Health Assembly resolution WHA46.40 dated 14 May 1993.� However, the United Nations General Assembly, stepping into the occasion, by Resolution 49/75 K, adopted on 15 December 1994, transmitted to the ICJ an identical question to the question earlier sent by WHO. The United Nations General Assembly asked, �Is the threat or use of nuclear weapons in any circumstance permitted under international law?� The ICJ in an advisory opinion rendered by a divided court, with the President casting the deciding vote, stated that it could not definitively render an opinion on the legality of the use of nuclear weapon although it did state it is would be an exceptional situation of self-defense that the use of such weapon may be considered.

The ICJ rejected the argument to draw by analogy a prohibition on the use of nuclear weapons to be specifically prohibited on the basis of certain provisions of the Second Hague Declaration of 1899, the Regulations annexed to the Hague Convention IV of 1907 or the 1925 Geneva Protocol. Further more the Court rejected any inference to be made to recent international agreements with the development and stockpiling of weapons of mass destruction. In Paragraph 57, the Court stated, �The pattern until now has been for weapons of mass destruction to be declared illegal by specific instruments. The most recent such instruments are the Convention of 10 April 1972 on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their destruction, which prohibits the possession of bacteriological and toxic weapons and reinforces the prohibition of their use, and the Convention of 13 January 1993 on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, which prohibits all use of chemical weapons and requires the destruction of existing stocks. Each of these instruments has been negotiated and adopted in its own context and for its own reasons. The Court does not find any specific prohibition of recourse to nuclear weapons in treaties expressly prohibiting the use of certain weapons of mass destruction.� [Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996.  para. 57]

However, when it comes to the use of nuclear weapons, the Court held that the rules [humanitarian law] dealing with the conduct of war jus in bello are applicable. Nevertheless, that is no news at all because all of the governments with nuclear weapons in their arsenal have in some form acknowledged that fact. The ICJ taking out time to answer a point of lest controversy, in so many words, what is not really challenged to begin with, is a form of lessening the impact of its unconscionable and wrong decision on the primary question on the illegality of the use of nuclear weapons as a matter of principle. At any rate, here is the statement by the majority on the issue of the conduct of war with the use of nuclear weapons. The Court stated in Paragraph 87, �Finally, the Court points to the Martens Clause, whose continuing existence and applicability is not to be doubted, as an affirmation that the principles and rules of humanitarian law apply to nuclear weapons.� [Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996.  para. 87]

B. The �Non-Proliferation� International Legal Regime

"Why do you look at the speck of sawdust in your brother's eye and pay no attention to the plank in your own eye? How can you say to your brother, 'Brother, let me take the speck out of your eye,' when you yourself fail to see the plank in your own eye? You hypocrite, first take the plank out of your eye, and then you will see clearly to remove the speck from your brother's eye.� [Luke 6:41-42] The Treaty on the Non-Proliferation of Nuclear Weapons was opened for signature in 1968 and was entered into force on 5 March 1970. Ethiopia signed the Treaty on 5 September 1968 and deposited its instrument of ratification on 5 February 1970. So far, one hundred eighty nine states are parties to the Treaty.

The few countries that have not ratified the Treaty such as Israel, Pakistan, and India have developed their nuclear weapons despite the concern of the world community of nations. Moreover, even countries that are parties to the Non-Proliferation Treaty and other related treaties, such as Argentina, Brazil, et cetera did develop nuclear weapons and later claimed they have closed down their programs. However, countries such as Iran and North Korea are openly pursuing and developing nuclear weapons. The point here is that, it is very difficult to ban nuclear weapons when there is an exclusive club of nations with nuclear weapons. The task is particularly difficult when you have leaders in the United States government, a government with a record of using nuclear weapons on civilian population for which it has not fully accounted for as yet, ever boasting and threatening other nations in conflict with the imperialistic foreign policy of the United States. 

The Non-Proliferation Treaty as well as all subsequent ramifications by United Nations Resolutions to control the spread of nuclear weapons and the expertise on the building of such powerful weapons and their delivery systems were all inherently flawed. The idea of non-proliferation of nuclear weapons and the effort to control the transfer of the technical expertise was first proposed by the Soviet Union attempting to contain the number of nations with possible nuclear weapons threatening its very existence. However, it seems that the Non-Proliferation Treaty is aimed to protect those who already have nuclear weapons�the five United Nations Security Council Members�rather than the elimination of all nuclear weapons in the world. None of the provisions of the Treaty required those nations to destroy or in any meaning full manner to reduce their nuclear weapons. The relevant article for such purpose has no bite  because it is a wish list rather than a provision with serious time schedule for disarmament, supervisory power to investigate national governments military industry, international agency responsible for disarmament, annual report on the progress of the disarmament et cetera.  It is Article VI of the 1968 Treaty that has the clearest statement about taking steps to towards the elimination nuclear weapons, the rest are negative statements about not doing something. �Article VI: Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a Treaty on general and complete disarmament under strict and effective international control.�

Most of the 1968 Treaty articles are open-ended and none has a timeline for those nations with nuclear weapons to stop further production of nuclear weapons. In fact, the opposite seems to have happened since 1968 such that the nuclear power nations have either increased their production of nuclear weapons, or even where they profess elimination of some weapon systems, they have, as a matter of fact, upgraded the technology and effectiveness of their nuclear arsenal. In other words, it is clear that the Treaty was biased toward maintaining the dominant position of the Western World over the rest of the nations of the World.  Because of the devastation caused by the detonation the nuclear bombs as evidenced in the destruction at Hiroshima and Nagasaki, the nations of the world were very eager to sign anything that would help minimize such occurrence from being repeated elsewhere in the world. As of now, one hundred eighty nine governments have signed or ratified the Treaty. Nevertheless, for the last forty years, the world has witnessed the arrogance of Western nations, specially that of the United States that has been at war with the world somewhere directly or through surrogates. These western nations rather than disarming they have upgraded the quality of their weapons, have created new ones, and have been spending more money training their military. They have been selling military hard ware, and training military personnel all over the world thereby have created conditions for conflict and the means to carry out such conflicts.

The fact of the existence of the 1968 Treaty, even though severely inadequate in its impact, points to the fact that the world community does not want weapon of such destructive power to be in anyone�s arsenal.  We also have to consider the 1968 Treaty in relation and as part of the United Nations Disarmament Commission�s Work and the Disarmament Conferences. There have been also several international agreements entered between the United States and the Soviet Union dealing with the reduction and outright banning of particular types of weapon systems.

In my view, Judge Weeramantry's dissenting opinion is the finest ever rendered by a judge at the ICJ from the time of the establishment of that Court. Judge Weeramantry stated in his opinion that as a matter of customary international law, multilateral treaties/agreements, and as a matter of ethics/morality the use or the threat of the use of nuclear weapon is absolutely prohibited. He further explained that international law principles are not limited to Western traditions, but also the fact that there was also equally rich tradition in other parts of the world dealing with issues of the �just war� concepts of jus ad bellum and jus in bello. This is consistent with Article 38 (b) and (c) of the Charter of the United Nations, Statute of the International Court of Justice.

Judge Weeramantry, coming from one of the great civilizations of the world, correctly cited a great international customary law and principle from his part of the World: �The Mahabharatha relates the story of an epic struggle between the Kauravas and the Pandavas. It refers likewise to the principle forbidding hyper-destructive weapons when it records that: Arjuna, observing the laws of war, refrained from using the 'pasupathastra', a hyper-destructive weapon, because when the fight was restricted to ordinary conventional weapons, the use of extraordinary or unconventional types was not even moral, let alone in conformity with religion or the recognized laws of warfare. Weapons causing unnecessary suffering were also banned by the Laws of Manu as, for example, arrows with hooked spikes which, after entering the body would be difficult to take out, or arrows with heated or poisoned tips.� [Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports, 1996, Dissenting Opinion of Judge Weeramantry.]

Although both Judge Weeramantry and Judge Schwebel (Stephen M.) criticized the Court�s refusal to render an opinion on the use of nuclear weapon in case of self-defence, their understanding or appreciation of the corpus (source) of international law is dramatically different. Judge Weeramantry�s dissenting opinion has as its basis both the authority of the letter of the law and the spirit of Article 38 (b) and (c) of the Charter of the United Nations, Statute of the International Court of Justice. It is progressive and normative. By contrast, Judge Schwebel dissenting opinion is arrogantly positivistic, limited in its scope, and narrowly patrician in the extreme. Moreover, there is very serious flaw in his reasoning dealing with the role of the United Nations General Assembly in the progressive development of international law principles and norms. [See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports, 1996, Dissenting Opinion of Judge Schwebel.]

There is no doubt in my mind that the divided international Court agonized on its decision. The court seems to have found itself in a peculiar area of supposedly uncharted legal wilderness full of dangerous pitfalls. It compromised principles for principles plus expediency in its halfway decent opinion. It is in this regard that the opinion of Judge Weeramantry is fresh and unique breath of life in an otherwise disappointing advisory opinion. It is worth our time to quote the respected Judge�s concluding remark both as a statement of great legal principle and moral authority to follow in the future. The Judge stated, �In this Opinion I have set down my conclusions as to the law. While conscious of the magnitude of the issues, I have focused my attention on the law as it is - on the numerous principles worked out by customary international law, and humanitarian law in particular, which cover the particular instances of the damage caused by nuclear weapons. As stated at the outset, my considered opinion on this matter is that the use or threat of use of nuclear weapons is incompatible with international law and with the very foundations on which that system rests. I have sought in this Opinion to set out my reasons in some detail and to state why the use or threat of use of nuclear weapons is absolutely prohibited by existing law - in all circumstances and without reservation. It comforts me that these legal conclusions accord also with what I perceive to be the moralities of the matter and the interests of humanity.� [Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports, 1996, Dissenting Opinion of Judge Weeramantry. Emphasis in the original]

C. The Genocide Convention of 1948

I believe that Article II of the Convention on the Prevention and Punishment of the Crime of Genocide of 1948 is authoritatively a source of international law principle to ban the use of nuclear weapons completely. Even though the Genocide Convention was signed after the end of World War II, its main principles were derived from existing international customary law and practices as well as numerous treaties signed by different states in conflict throughout the ages.

One good starting point to examine the applicability of the Genocide Convention to ban the use of nuclear weapons under all circumstances is to examine the situation leading up to the dropping of nuclear bombs on Hiroshima and Nagasaki. Taking into account the United States Government�s propaganda and widely circulated anti-Japanese rhetoric through the media of the time, and studying carefully the reasoning behind the internment of American citizens with Japanese ancestry that seems to have been carried out for no other reason but for fear or suspicion based on race, before the dropping of the two nuclear bombs on Hiroshima and Nagasaki with hundreds of thousands of civilian population, one must conclude that the act of the United States Government as a racist genocidal act per se. It can be inferred that any such use of weapon of mass destruction necessarily would have elements of racism if ever used against ethnically different nations.

The very stockpiling and use of such weapons would have in it criminal intent of killing non-combatants in violation of several United Nations treaties and resolutions. It serves no military purpose. It is not even an issue of the reckless disregard of the lives of non-combatants, but a deliberate cold-blooded murder of hundreds of thousands of protected persons by numerous international law principles and practices.  END OF PART ONE

Tecola W. Hagos

15 July 2005

NEXT:

PART TWO: The Ethical and Moral Ground For Banning Nuclear Weapons