lucas, Author at IALANA

Statement: Russia’s Invasion of Ukraine: An Illegal War of Aggression

25 February 2022

The International Association of Lawyers Against Nuclear Arms (IALANA) strongly condemns Russia’s attack on Ukraine. The Russian invasion is in clear violation of international law, and is causing the people of Ukraine to experience terror, suffering, and death. Given the increased risk of nuclear weapons use, whether intentionally or by miscalculation, it also exposes the peoples of the region and the world as a whole to harm on a vast scale.

I. Russia’s invasion of Ukraine is an illegal war of aggression.

The invasion is a violation of the United Nations Charter, Article 2(4), which prohibits the “threat or use of force against the territorial integrity or political independence of any state.” It cannot be justified as an act of self-defense under Article 51 of the Charter. Nor do any of the rationales offered by Putin withstand even minimal scrutiny. Thus there is no basis for claiming that the invasion will prevent “genocide.”
The invasion constitutes an act of aggression under general international law. The Rome Statute of the International Criminal Court defines a state act of aggression as “the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state, or in any other manner inconsistent with the Charter of the United Nations.” The leaders of an aggressor state may be individually responsible for the crime of aggression, one of the core crimes set out in the Rome Statute. Under the Charter of the International Military Tribunal (Nuremberg Charter), waging a war of aggression is a crime against peace, and leaders of the Third Reich were convicted of that crime.

II. Putin’s thinly veiled references to resort to nuclear weapons should other states intervene militarily are unlawful threats of force under the UN Charter, Article 2(4), because they are an element of the unlawful invasion. They are also contrary to general international law because they threaten the commission of an illegal act—here the use of nuclear weapons.

In its 1996 Advisory Opinion (para. 78), the International Court of Justice stated that if use of a weapon would not meet the requirements of international humanitarian law governing the conduct of warfare, the threat of such use would be contrary to that law. It is now widely recognized that use of nuclear weapons is illegal under humanitarian law, most centrally because they cannot meet the requirement of discrimination between military targets and civilian persons/infrastructure. More than 25 years ago, the Court found such use, or threatened use, to be illegal. The main circumstance in which the Court could not reach a conclusion, when the survival of a state is at stake, is not at issue for Russia in the present crisis.

In a 5 January 2022 joint statement, Russia and the other four nuclear weapon states acknowledged by the Non-Proliferation Treaty affirmed the Reagan-Gorbachev principle “that a nuclear war cannot be won and must never be fought.” Putin’s recent references to possible Russian use of nuclear arms cannot be reconciled with that affirmation.

III. Several US and NATO actions in relation to Russia since the mid-1990s, in particular opening the door to Ukraine’s membership in NATO in 2008, were unwise and even reckless in their disregard of the security concerns of Russia. That in no way, legally or morally, serves to justify Russia’s war of aggression against Ukraine.

IV. In the months preceding the invasion, the United Nations and states involved in the crisis failed to achieve a purpose of the UN set out in Article 1(1) of the Charter, “to bring about by peaceful means, and in conformity with the principles of justice and international law, … settlement of international disputes … which might lead to a breach of the peace.” It is now the duty of those states to bring about a cease-fire, and to resolve differences in accordance with Article 2(3) of the Charter, which requires member states to settle “international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.” It is also the responsibility of the UN Security Council to restore international peace and security. Should the Security Council not be able to act due to the veto afforded Russia as a permanent member of the Council, the General Assembly should act, as it has numerous times over the decades, under the Uniting for Peace resolution (377A, 3 November 1950).

IALANA stands against Russia’s unlawful acts of war and threats of nuclear force. We call for both sides to comply with international humanitarian law, respect human rights, and provide access to humanitarian aid. We further call for an immediate cease-fire, dialogue and diplomacy, and fulfilment of the requirements of the UN Charter.

Phon van den Biesen and Takeya Sasaki

Co-Presidents of IALANA

Article: Are Nuclear Weapons Illegal?

By Amela Skiljan, LL.M.Eur
Vice-Chair IALANA Deutschland e.V. – Vereinigung für Friedensrecht – Deutsche Sektion der International Association of Lawyers Against Nuclear Arms, Marienstr. 19-20, 10117 Berlin, amela.skiljan@ialana.de

This article was first published in “Die Friedens-Warte Journal of International Peace and Organization”, December 2021, Issue 3-4, pp 418-444
DOI 10.35998/fw-2021-0020
ISBN 2009460321D
The Issue may be bought as print version or E-Book here: https://www.bwv-verlag.de/detailview?no=2009460321D

Abstract

Humanity has been developing legal responses to the threat of nuclear weapons since 1945. These responses are not only reflected in international treaties like the NPT or the TPNW, but also in the many norms derived from international humanitarian law, human rights law, environmental law and international criminal law. Many of them are of a customary nature, which makes them binding for all states, such as the general prohibition on the use and threat of use of nuclear weapons. This paper shows that many norms from different fields of international law reinforce each other in confirming the illegality of nuclear weapons in various aspects. In this regard, the TPNW is a landmark in nuclear disarmament, which not only confirms existing law, but develops it further.

Seit 1945 ist die Menschheit mit der Bedrohung durch Atomwaffen konfrontiert, und seither gab es rechtliche Antworten auf diese Bedrohung. Diese spiegeln sich nicht nur in internationalen Verträgen wie dem NVV oder dem AVV wieder, sondern auch in vielen Normen, die sich aus dem humanitären Völkerrecht, den Menschenrechten, dem Umweltrecht oder dem internationalen Strafrecht ergeben. Viele dieser Normen haben Gewohnheitscharakter, was sie für alle Staaten verbindlich macht, wie das generelle Verbot des Einsatzes und der Androhung des Einsatzes von Kernwaffen. Dieser Beitrag zeigt, dass viele Normen aus verschiedenen Bereichen des Völkerrechts sich gegenseitig in der Bestätigung der Illegalität von Atomwaffen in verschiedenen Aspekten bekräftigen. In dieser Hinsicht ist der AVV ein Meilenstein der nuklearen Abrüstung, der nicht nur bestehendes Recht bestätigt, sondern es auch weiterentwickelt.

Keywords: nuclear weapons, international law, customary law, disarmament, NPT, TPNW

Download the full article below or here

Download the overview (table) Are Nuclear Weapons illegal? below or here

IALANA Webinar – LOOKING BACK AND LOOKING AHEAD: Give Justice to Nuclear Victims!

Please find the videos, presentations and speeches in writing of the webinar below

ウェビナーの動画、プレゼンテーション、スピーチの文章はこちらでご覧ください。

Date / Time 14 March 2022 from 10:00 to 12:10, CET

Introduction

The debate on and arguments against nuclear weapons have been reframed with the introduction of the concepts of humanitarian and environmental consequences of nuclear weapons. The TPNW as well as recent rulings like the Human Rights Committee General Comment No 36 on the right to life enlarged the legal tools in the struggle against nuclear weapons and in giving justice to the victims of the nuclear complex.

This webinar will reflect on the legal framework – legal arguments, rights and remedies – linking existing experience with future options. Thus, the webinar aims at highlighting new paths to protect nuclear victims and the environment.
For more detailed background information on various topics of the webinar, please see a list of references.

1^st Session

Looking Back: Learning from the experience of lawyers who have supported victims of the atomic bombs and nuclear testing

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Moderator: Hiroko Takahashi, Professor of Department of History, Faculty of Letters, Nara University, Japan

Opening and Introductory Remarks Kazue Mori, Lawyer, JALANA Secretary General, Japan (Speech)

Struggle of Japanese Lawyers to Support A-Bomb Survivors Takeya Sasaki, Lawyer in Hiroshima, IALANA co-president, Japan (Speech)

Relief of A-Bomb Survivors in South Korea Choi, Bongtae, Lawyer in South Korea (Speech)

Bikini Lawsuit Masayoshi Naito, Lawyer, JALANA vice-president, Japan (Speech, Video Message from Ms. Setsuko Shimomoto
https://www.youtube.com/watch?v=TuDoMrYf8s4)

Concluding Remarks
Hiroko Takahashi, Professor of Department of History, Faculty of Letters, Nara University, Japan (Speech)

Q+A

Short Break

2^nd Session

Looking Ahead: The future of victim assistance and environmental remediation – making use of the TPNW and existing international, esp. human rights law

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Moderator: Toshinori Yamada, Lecturer of International Law, Meiji University, Japan (Introduction)

Implementation of Article 6 and 7 of the TPNW ahead of the first Meeting of States Parties Manfred Mohr, Professor of Public International Law, Academy of Sciences, Board member of IALANA, Germany (Presentation)

Human Rights Approach for Nuclear Disarmament Daniel Rietiker, Adjunct Professor at Lausanne University and Suffolk University Law School, IALANA co-president, France (Presentation)

Framework of Environmental Remediation Emilie Gaillard, lecturer in private law, director of the master degree GENFUT (Future Generations and Legal Transitions) at SciencesPo Rennes, general coordinator of the Normandy Chair for Peace, board member of IALANA, France

Q+A

Final Remarks Toshinori Yamada (Speech)

Closing

Overview of national litigation in Japan

The following is some examples of national court cases that JALANA supports:

① No More Hibakusha Lawsuits (A-Bomb Illness Certification Lawsuits) – The A-Bomb survivors are fighting court cases against Japanese government maintaining a practice of administration on assistance for A-Bomb survivors very limitedly. The Supreme Court recently made an unjust judgment that upheld the government’s practice.

② “Black Rain” Lawsuit – 84 plaintiffs, who were outside the target area for state assistance but suffered health damage owing to the “black rain” containing radioactive substances that fell immediately after the atomic bombing, filed a lawsuit against the government, Hiroshima Prefecture, and Hiroshima City, demanding issuance of A-Bomb Survivor Health Handbooks. On July 29, 2020, Hiroshima District Court ruled in favour of all plaintiffs, but the defendants appealed.
　 On July 14th, 2021, Hiroshima High Court upheld the District Court’s ruling that recognized the plaintiffs as hibakusha, and further expanded the “black rain area.” On July 26th, 2021, Japan’s then Prime Minister Yoshihide Suga said that the government had decided not to file a final appeal. He said his administration would further examine the issue so that relief measures could be extended to others who were exposed to the radioactive rain.

For more information on the “Black Rain” Lawsuit read the newspaper articles in THE ASAHI SHIMBUN and Japan Times.

③ Bikini Occupational Accidents Lawsuit – Owing to the 1954 US hydrogen bomb tests, fishermen and crews on fishing boats and cargo ships operating around the Bikini Atoll were irradiated and developed diseases such as cancers. We support a lawsuit which they filed to claim certification of occupational accidents, payment of insurance, and national compensation for having lost their rights to claim it to the US by the US-Japan Agreement.

④ Fukushima Nuclear Disaster and Lifework Lawsuits – The accident of Fukushima Nuclear Power Plant that occurred on March 11, 2011, deprived many residents of their places to live and livelihood. Lawsuits are pending to hold accountable the electric power company (operator of the nuclear plant), who has failed to take measures to counter disasters even after being informed of possibility of tsunami and earthquakes, and the government, who did not play a role of regulation authority. So far three of four high court decisions recognized a responsibility of the electric power company and the government. All the four cases are now pending at the Supreme Court.

This text was originally published on http://www.hankaku-j.org/english/info/211220.html

Presentation: Nuclear Weapons and the Human Right to Life

Hannah Kohn, LCNP intern, gave the presentation “Nuclear Weapons and the Human Right to Life,” in the workshop “The Foundations of Peace: Nuclear Abolition and the Law,” Second International Peace Bureau World Peace Congress, (Re) Imagine our World: Action for Peace and Justice, Barcelona, 16 October 2021

Please find the ppt-slides as well as the written text of her presentation below.

TPNW’s First meeting of States Parties and beyond: Implementing Articles 6 and 7 – some comments, expectations and proposals

By Prof. Manfred Mohr (Professor of Public International Law, Academy of Sciences, Berlin, Board member of IALANA) and Prof. Daniel Rietiker (Adjunct Professor at Lausanne University and Suffolk University Law School, Boston MA, Co-president of IALANA)

I. On the commitments, their relevance and nature (1MSP’s declaration)

Articles 6 and 7 contain positive obligations which are of specific relevance, as distinct from negative, or banning, stipulations contained in the Treaty. Implementing these obligations is a priority, and has immediate practical effects for victims and the natural environment affected by the (past) use or testing of nuclear weapons. Those commitments are of relevance even without the joining of Nuclear Weapon States to the Treaty – thus underlining the great, overall importance of the instrument. According to Article 6, the point of departure for victim assistance and environmental remediation lies with the jurisdiction of affected States Parties, which may not be Nuclear Weapon States.
The commitments and respective parts of the Treaty echo the present general tendency of dealing with the subject of war and the environment. This is indicated, among other things, by the draft of the International Law Commission (ILC) on principles on the protection of the environment in relation to armed conflict (PERAC) (A/74/10), or the 2020 Guidelines of the International Committee of the Red Cross on the Protection of the Natural Environment in Armed Conflict. The trend – which also establishes a connection to the global issue of climate change – is reflected through endeavors like the one of the Harvard Law School’s International Human Rights Clinic and the Conflict and Environment Observatory (CEOBS) outlining 14 principles for assisting victims of toxic remnants of war (Confronting Conflict Pollution, 2020).
The special relevance and strength of art. 6 and 7 commitments result from the fact that they are linked to, or rooted in, existing international law. As Para. 8 of the Treaty’s preamble reaffirms: “…the need for all States at all times to comply with applicable international law, including international humanitarian law and international human rights law”. The three main branches of law pertinent here are International Humanitarian Law (IHL), Human Rights, and Environmental Law – while Para. 10 of the preamble puts a focus on IHL as did the International Court of Justice in its 1996 Advisory Opinion on the (Il)Legality of the threat or use of nuclear weapons. There is a multitude of legal arguments – many of them of a customary character – available to further victim assistance and environmental

LOOKING BACK AND LOOKING AHEAD: the 25th anniversary of the 1996 ICJ Advisory Opinion on the Legality of Threat or Use of Nuclear Weapons!

On 8 July 1996, the International Court of Justice (ICJ) handed down its Advisory Opinion on the legality of the threat or use of nuclear weapons. It was the first authoritative international judicial opinion on nuclear weapons since their development in the 1940s. Moreover, it is generally considered one of the most important opinions that the ICJ has delivered.

In spite of the, sometimes, controversial conclusions drawn by the, lowest possible, majority of Judges, it functions as an important reference for civil society in its work towards the elimination of nuclear weapons.

Leading international lawyers and activists, professors of international law and experts on arms control and disarmament law will discuss the importance of the Opinion and its relevance for the present day struggle towards nuclear disarmament. The webinar will also address more recent developments, such as the Treaty on the Prohibition of Nuclear Weapons and the General Comment no. 36 on the right to life of the UN Human Rights Committee. Finally, it will address the question of what lessons can be drawn from the opinion regarding achievement of a world without nuclear weapons.

Nuclear Weapons and International Law 2020: Virtual Conference

On November 12, 2020, the International Section of the New York State Bar Association (NYSBA) hosted an all-day virtual conference on nuclear weapons and international law. An exceptional group of experts in law, policy, diplomacy, and advocacy joined high-level officials from the United Nations and the United States to examine the application of international law to nuclear weapons and policy and advocacy strategies for control and elimination of the weapons and for ensuring their non-use. Speakers examined national nuclear weapons postures, international humanitarian law, human rights law, the UN system, the non-proliferation regime, and civil society advocacy, including religious approaches.

A report on the conference is here, including summaries of the sessions with video links.
The agenda with video links, speakers’ biographies, texts of remarks, and a bibliography are available here.
Video of the conference is also available here.

Speakers included Prof. Osamu Arakaki of International Christian University, Japan; Hans Kristensen of Federation of American Scientists; Prof. Scott Sagan of Stanford University; UN Under-Secretary-General Izumi Nakamitsu; Ariana Smith and Dr. John Burroughs of Lawyers Committee on Nuclear Policy; Allison Pytlak of Reaching Critical Will/WILPF; American Bar Association President Patricia Lee Refo; Global Security Institute President Jonathan Granoff; Governor Jerry Brown, Executive Chairman, Bulletin of the Atomic Scientists; Ambassador Christopher Ford, Assistant Secretary for International Security and Nonproliferation; Ambassador Thomas Graham, former Special Representative for Arms Control, Nonproliferation and Disarmament; Dr. Gloria Duffy, former Deputy Assistant Secretary of Defense; Prof. Charles Moxley of Fordham Law; Prof. David Koplow of Georgetown Law; Kathleen Lawand of the International Committee of the Red Cross; Laurie Ashton, counsel for the Marshall Islands in its nuclear disarmament cases; Jacqueline Cabasso of Western States Legal Foundation; Rev. Drew Christiansen of Georgetown University; Tom Collina of Ploughshares Fund; and Audrey Kitigawa of the Parliament of the World’s Religions.

Lawyers Committee on Nuclear Policy, Global Security Institute, and the International Law Section of the American Bar Association co-sponsored and co-organized the conference with the NYSBA International Section and its incoming Chair, Edward Lenci. Additional co-sponsors were Fordham Law School, Center on National Security; Georgetown University, Berkley Center for Religion, Peace and World Affairs; New York City Bar Association, Committees on International Law, Military and Veteran Affairs, the United Nations, and Cyrus R. Vance Center for International Justice; and New York County Lawyers Association, Committee on Foreign & International Law.

Human Rights Versus Nuclear Weapons: New Dimensions

By LCNP
Commentary and Analysis regarding UN Human Rights Committee General Comment no. 36; the Treaty on the Prohibition of Nuclear Weapons; Human Rights, Democracy, and Nuclear Weapons

Available as download below

We are witnessing a resurgence of interest in the application of international human rights law to one of the principal threats to the human future: nuclear weapons. A general comment issued by the UN Human Rights Committee in 2018 finds the threat or use of nuclear weapons to be incompatible with respect for the right to life. The Treaty on the Prohibition of Nuclear Weapons adopted a year earlier is suffused with a humanitarian perspective, protects the rights of victims of testing and use of nuclear arms, and cites human rights law and the principles of humanity in its preamble.

Lawyers Committee on Nuclear Policy (LCNP) twice brought together leading lawyers, law professors, and analysts to reflect on these developments, in December 2018 and in May 2019. This publication collects papers based on the speakers’ remarks.

Prof. Roger Clark of Rutgers Law, LCNP Executive Director Ariana Smith, LCNP President Emeritus Peter Weiss, and Dr. Daniel Rietiker of the University of Lausanne examine and reflect upon the significance and implications of the finding of the UN Human Rights Committee.
Bonnie Docherty of the Harvard Law International Human Rights Clinic addresses human rights aspects of the Treaty on the Prohibition of Nuclear Weapons.
Andrew Lichterman of Western States Legal Foundation explores how human rights discourse could be a terrain for making connections between disarmament movements and other movements for a more fair, democratic, and ecologically sustainable society.

This publication is highly recommended reading for anyone seeking to understand how a human rights approach can contribute to the abolition of nuclear weapons.