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Petition to the International Commission on Nuclear Non-proliferation and Disarmament

February 9, 2009
Japan Association of Lawyers Against Nuclear Arms
(JALANA)
I. Intent of the Petition
II. Reasons for Petition (Brief Overview)
III. Reasons for Petition (Detailed Discussion)
  1. Introduction to JALANA
  2. The Reality of Damage from Nuclear Weapons
  3. Reasons Given to Justify the Atomic Bombings
  4. ICJ Advisory Opinion on the Illegality of the Atomic Bombings
  5. The Current Situation and the Trend Toward "Nuclear Abolition"
  6. Expectations and Requests
  7. Conclusion
The Japan Association of Lawyers Against Nuclear Arms hereby submits this petition to the International Commission on Nuclear Non-proliferation and Disarmament with hope for the early abolition of nuclear arms.
I. Intent of the Petition
1. Use the reality of the atomic bombings and testimony by the survivors (hibakusha) as the basis for judgment.
2. Confirm the inhumane, criminal, and illegal nature of nuclear arms.
3. Instead of making the abolition of nuclear weapons an "ultimate objective," produce a definite and specific "action plan" meant to abolish them soon.
4. In the "action plan," propose making the Nuclear Weapons Convention a reality, and set a deadline.
5. Call on governments to quickly initiate "negotiations in good faith" meant to enact the Nuclear Weapons Convention.
II. Reasons for Petition (Brief Overview)
1. The Japan Association of Lawyers Against Nuclear Arms (JALANA) is a lawyers' organization whose purposes are the abolition of nuclear arms and support for the hibakusha. There are about 400 members, and they are also members of the International Association of Lawyers Against Nuclear Arms (IALANA). Here is a brief overview of the reasons for this petition.
2. The atomic bombings of Hiroshima and Nagasaki killed and injured many people instantly, indiscriminately, and cruelly. Even now the hibakusha suffer from cancer, leukemia, thyroid abnormalities, liver function impairment, cataracts, and other ailments because of the radiation. Confirming that these were caused by actually used nuclear weapons is the starting point for considering the nuclear weapons issue. Nuclear weapons gave the hibakusha the experience of "hell on Earth." One cannot discuss nuclear weapons without knowing this. Please do listen to the testimony of the hibakusha.
3. Recall the 1963 Tokyo District Court decision and the 1996 International Court of Justice (ICJ) "advisory opinion," which held that the use of nuclear weapons is illegal under international law. The ICJ stated that "the threat or use of nuclear weapons would generally be contrary to the rules of international law." It also advised that "negotiations in good faith" be started with the aim of complete nuclear disarmament. What needs to be done now is to translate this advisory opinion into reality. Discussion of this issue must assume that the use and threat of nuclear weapons violate international law. Please make use of the ICJ advisory opinion.
4. "Nuclear deterrence" is the grounds used to justify the possession of nuclear weapons. This is a rationale that a country uses to accomplish its own political will by instilling fear in the people of another, hostile country, which is achieved by the threat that a nuclear attack may be launched against that hostile country. Nuclear powers use nuclear weapons as the "guardian deity" of their national security, with the underlying assumption being a mixture of threat and fear. In other words, these weapons of the devil, which bring about hell on Earth, are regarded as a "guardian deity." Humanity must part with this inverted way of thinking. We hope that the world will part ways with "nuclear deterrence."
5. Note that the Model Nuclear Weapons Convention is already an official UN discussion document. The US House of Representatives resolved that it welcomes this document, and the UN secretary-general said that it is a good departure point for the abolition of nuclear weapons. Please do everything possible to quickly remove "model" from the document's name and make it the "Nuclear Weapons Convention."
6. Mayors for Peace and other NGOs are running a campaign (2020 Vision Campaign) which sets a time limit of 2020 for eliminating nuclear weapons. Some former high-ranking government officials from nuclear powers are also calling for the abolition of nuclear weapons. The time is ripe for abolition. Please help encourage that trend.
7. We ask that you take the initiative to quickly bring about the abolition of nuclear weapons, instead of just stopping at nuclear nonproliferation and nuclear arms reduction.
III. Reasons for Petition (Detailed Discussion)
1. Introduction to JALANA
JALANA was founded in 1994 for the purposes of abolishing nuclear weapons and helping the hibakusha. We now have about 400 members. JALANA is also a member of IALANA. We believe that nuclear weapons are highly violent and inhumane weapons which negate international law. Additionally, we have the awareness that lawyers have a special responsibility to faithfully implement and advance international law, and to stop the use of nuclear weapons. Based on that self-awareness, we conduct activities from a lawyer's standpoint and in solidarity with thinking people in Japan and other countries to abolish nuclear weapons and help the hibakusha.
2. The Reality of Damage from Nuclear Weapons
(1) The United States dropped atomic bombs on Hiroshima and Nagasaki on August 6 and 9, 1945. In an instant the bombs turned these cities into wastelands and "cities of corpses." It is estimated that from the time of the bombings to the end of that year, about 140,000 people in Hiroshima and about 70,000 people in Nagasaki died, for a total of 210,000, almost all of whom were noncombatants. But the way in which people died left doctors with no way to treat the victims, who suffered while being fried alive. The atomic bombs indiscriminately killed and injured human beings with no distinction between combatants or noncombatants, or between enemies and allies, and in a cruel manner that beggars description. Further, all structures were destroyed without distinction between military and non-military facilities. No structure was able to withstand the blasts of the atomic bombs. Thus the first characteristic of atomic bombs is instantaneous killing and injury, the large scale of damage, and the indiscriminate nature of their cruelty and destruction.
(2) Here we would like commission members to recall that even now many people suffer from so-called "atomic bomb sickness" due to the effects of radiation released at the time of the bombings over 63 years ago. It is estimated that the total number of hibakusha was about 660,000. Currently about 270,000 people have hibakusha IDs. Already many hibakusha have died, but those still living continue to be affected adversely by the bombings. Ordinarily when a war ends, people are liberated from the direct impacts of military force even though they suffer great misfortune, but it was not so for the atomic bombing victims. Those who barely managed to survive suffered from acute symptoms such as severe diarrhea, hair loss, and bleeding from every part of the body, and from chronic symptoms that included severe fatigue. What is more, they have also had unavoidable aftereffects such as primary multiple cancers, liver disorders, and thyroid abnormalities. It is thought that the cause of these symptoms is "internal exposure" to radiation. The effects of atomic bombs on the human body are not limited to direct damage such as ultra-high temperature and ultra-powerful blast. The second characteristic of the atomic bombs is the permanent radiation damage. One must also keep in mind that radiation damage affects not only those directly exposed, but may also affect succeeding generations. Radiation affects people on the DNA level.
(3) The real story of damage from the atomic bombings as covered above is as described in testimony by the hibakusha, but their testimony actually covers only a very small part of what happened. Perhaps the whole story can never be told. To begin with, the dead cannot tell us their stories. For that very reason, we must speak for those people by continuing to tell the story. It is hoped that you will imagine the effects of the atomic bombings on the victims.
3. Reasons Given to Justify the Atomic Bombings
(1) Incidentally, the United States asserts that the atomic bombings were both necessary and just. The reasoning is that the bombings were a necessary means to retaliate for Pearl Harbor, end the war quickly, and reduce the number of war victims. Some of the people under the colonial domination of the Japanese Empire say that the atomic bombings quickly liberated them from colonial domination. Surely, if the final battle had been on Japan's main islands, the situation could have been far worse than the tragedies of Iwo Jima and Okinawa. It is also a fact that colonial domination and invasion by the Japanese Empire exacted great sacrifices from many countries and peoples. Hence it is true that contrition and apology are necessary for acts perpetrated by the Japanese Empire. We do not believe that the hibakusha are the only victims of the war, and we think that we must seriously confront Japan's war responsibility and postwar responsibility.
(2) But in our thinking, the atomic bombings cannot be justified or legalized for such reasons because at the time of the bombings there were already international laws which banned attacks on noncombatants and non-military facilities, and the use of weapons that cause unnecessary suffering to combatants. Weapons and combat means whose use is prohibited even in wartime were established at that time as rules of war or international humanitarian laws. The Hague Convention of 1899 or 1907 confirms that "The right of belligerents to adopt means of injuring the enemy is not unlimited." Additionally, "…belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience" (the Martens Clause) was a major principle of international law. Although at that time the international community had not yet come to the point of generally outlawing war, it had recognized that even in wartime there were inhumane acts that one human should not do to another, and it had established this as international legal norms. It is clear to anyone who has seen what the atomic bombings actually did that the killing, injury, and destruction of the bombings was large-scale, indiscriminate, and cruel. While recognizing that the US war against Japan was "a just war," the atomic bombings violated international humanitarian laws (rules of war).
(3) Further, these international humanitarian laws (rules of war) are not merely abstract norms because they also functioned as the authoritative norms which the Allied Powers used to try war criminals of the Axis Powers in the Nuremberg and Tokyo war crimes trials. Aside from the matter of who the defendants in "crimes against peace" are, many war criminals were tried on the charge of violating the rules of war. International humanitarian law (the rules of war) are not supposed to be applied with a distinction as to whether the military personnel are from the victorious or defeated countries; personnel are supposed to be tried on whether they violated the rules of war. If the victorious country tries only the military personnel of the defeated country, then the law exists in name only, and that is because if the law is applied arbitrarily, we have not the rule of law, but the rule of might. Those who have killed and injured others indiscriminately and cruelly must be tried without regard to whether they were on the winning or losing side. If those who committed acts of indiscriminate and cruel engagement were victorious in war, and their indiscriminate and cruel methods of engagement are not in the least at issue, then it makes no sense to ban indiscriminate and cruel methods of engagement. Under such circumstances, countries at war will use any means whatsoever to secure victory, and everything done for international humanitarian law (rules of war) would be for naught. Nuclear weapons are the ultimate means of securing victory in war, which is evident from the absence of any way to counter the release of energy from nuclear fission or fusion. Nuclear weapons and international humanitarian law (rules of war) cannot coexist.
4. ICJ Advisory Opinion on the Illegality of the Atomic Bombings
(1) For these reasons we believe that the atomic bombings by the US violated contemporary international law. In 1963 Tokyo District Court handed down a decision stating that the atomic bombings violated international law. In our thinking, the atomic bombings of Hiroshima and Nagasaki were not only illegal, but also violated international law with respect to the future use and threat of nuclear weapons. In 1996 the International Court of Justice issued an advisory opinion on the document "Request for an advisory opinion from the International Court of Justice on the legality of the threat or use of nuclear weapons" submitted by the UN General Assembly, and stated the view that "the threat or use of nuclear weapons would generally be contrary to the rules of international law." Although we subscribe to the view that the use and threat of nuclear weapons are not "generally" but "absolutely" in violation of international law, we think that all the world's countries should respect the view on nuclear weapons expressed by the ICJ, which is an official international agency. If the use and threat of nuclear weapons are illegal, then their development, testing, and possession are likewise illegal, and a total ban on these is a logical inevitability. Accordingly, not only is it illegal to develop, test, and possess new nuclear weapons, existing nuclear weapons must also be abolished.
(2) The ICJ also advised, "There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control." However, these negotiations in good faith are delayed and making no progress, so that there is no telling when they will be brought to a conclusion. Behind the reason for this tardiness one finds the doctrine of nuclear deterrence, which sees nuclear weapons as necessary and effective. This doctrine is a type of thinking in which the use and threat of nuclear weapons are necessary and effective for state security. It is a strategy which aims to instill fear in other countries and their peoples by means of the threat that "if you take hostile action against our country, we will counterattack with nuclear weapons and retaliate with mass slaughter and destruction." Here we can discern a psyop by which a country attempts to accomplish its own political will by continually instilling fear in another country and its people not only during wartime, but also on an everyday basis. Such thinking and behavior keep the international community in an unstable state of intermingled threat and fear. The devil's weapons, which could wipe out humanity, are considered to be the guardian deity of state security. We desire to surmount the doctrine of nuclear deterrence and establish an international community based on fairness and dependability, instead of an international order dominated by threats and fear. We believe that you feel the same way.
5. The Current Situation and the Trend Toward "Nuclear Abolition"
(1) Under this doctrine of nuclear deterrence the world still has 26,000 nuclear warheads. There has been no improvement in the situation at all, with there being more than enough warheads to exterminate humanity. The world still has overkill capacity. Nuclear war would mean the end of the world as we know it and the extinction of the human species. Nevertheless, more and more countries try to obtain nuclear weapons. There are also countries like the United States that have a first-use nuclear strategy. We hope that the Obama administration will change this policy, and we believe that we can share that hope with all commission members.
(2) We who know that the atomic bombings were criminal, inhumane, and against international law believe that the abolition of nuclear weapons is a challenge shared by all humanity, and that the establishment of an international legal order for that purpose is an urgent task. We want the Nuclear Weapons Convention to become a reality as soon as possible. In 1997 the government of Costa Rica distributed the Model Nuclear Weapons Convention in the UN General Assembly as a discussion document. In 1999 the US House of Representatives adopted a resolution which stated, "[The House of Representatives] welcomes the Model Nuclear Weapons Convention as a discussion document intended to further negotiations on complete nuclear disarmament." In 2007 the governments of Malaysia and Costa Rica proposed a revised version. Last year UN Secretary General Ban Ki-moon said that this model convention is a good starting point toward a nuclear-free world. As this shows, the Nuclear Weapons Convention is already on the UN agenda, but there is still no realistic schedule for its enactment, signing, and ratification. We think that the Nuclear Weapons Convention must be urgently discussed in the international community as a realistic and concrete project. We have high hopes for your contribution to this effort.
(3) Vigorous efforts are now being made throughout the world for not only nuclear nonproliferation and nuclear disarmament, but also for the abolition of nuclear weapons. Activities for the "2020 Vision Campaign" by Mayors for Peace and other organizations are continuing, and efforts by parliamentary members of various countries for abolishing nuclear weapons are prominent. In 2008 alone there were a number of initiatives: In January, Henry Kissinger and three other former high-ranking US government officials made a second proposal for a "world without nuclear weapons." In February the Norwegian government hosted the Oslo Conference on Nuclear Disarmament. In June four former UK foreign and defense ministers proposed that all nuclear powers should discharge their obligations for nuclear disarmament. In July former Italian Prime Minister Massimo D'Alema and four others released the statement "Towards a Nuclear-Weapon-Free World." In September your commission, the International Commission on Nuclear Non-proliferation and Disarmament, was established. During the election President Obama pledged that the central element of nuclear policy is abolishing all nuclear weapons. And December saw the launch of a new campaign called Global Zero, which aims to get an agreement for the phased abolition of nuclear weapons.
6. Expectations and Requests
(1) We have high expectations for the activities of your commission, which was established within this trend for abolishing nuclear weapons. In our thinking, the starting point for creating humanity's society of the future must be the viewpoint of the Hiroshima and Nagasaki hibakusha, who, based on their own experiences, say that humanity cannot exist with nuclear weapons, want themselves to be the last hibakusha, and want nuclear weapons to be eliminated as soon as possible. How will you appreciate the cries of the hibakusha? Hiroshima and Nagasaki are not just past events; they are present and future problems of human society. Your mission is intimately connected to the direction in which humanity's future is guided.
(2) Can humanity live only under the threat of nuclear weapons and the fear that they bring? Is it impossible to realize the right all peoples of the world to live in peace, free from fear and want, as stated in the Preamble to Japan's Constitution? You are in a position which requires you to answer this question. We believe that you will play a major role in establishing the right all peoples of the world to live in peace, free from fear.
(3) Needless to say, abolishing nuclear weapons requires that nuclear powers have the political will to do so. It is true that unless nuclear powers have the will for nuclear disarmament and nuclear abolition, enactment of the Nuclear Weapons Convention and the real abolition of nuclear weapons are both impossible. In that sense, this will be a test to see how you are able to influence the shaping of will among the nuclear powers. For that purpose, each one of you must have a firm belief that either nuclear weapons are necessary and useful, or dangerous and useless. You should choose one, and publish your view worldwide.
(4) While nuclear weapons cannot be abolished without the will and participation of nuclear powers, abolition is still not possible by just looking for ways to compromise with governments whose nuclear policies are based on the doctrine of nuclear deterrence. We have no argument with you taking nuclear nonproliferation and nuclear disarmament as your point of departure, but we sincerely hope that you will move beyond that toward the horizon of nuclear weapons abolition. Nonproliferation that does not envision abolition only entrenches distinctions between countries which have nuclear weapons and those which do not. And nuclear disarmament that does not have abolition as its goal banishes abolition to a permanently receding horizon.
(5) The will of nuclear-armed countries can be changed by their citizens and by world public opinion. Your actions also play a role. How your thinking and actions are assessed will be determined by your choice: whether you propose abolishing nuclear weapons to the nuclear powers, or look for a compromise between the inclinations of nuclear powers and the desire to abolish nuclear weapons.
7. Conclusion
i. Use the reality of the atomic bombings and testimony by the survivors (hibakusha) as the basis for judgment.
ii. Confirm the inhumane, criminal, and illegal nature of nuclear arms.
iii. Instead of making the abolition of nuclear weapons an "ultimate objective," produce a definite and specific "action plan" meant to abolish them soon.
iv. In the "action plan," propose making the Nuclear Weapons Convention a reality, and set a deadline.
v. Call on governments to quickly initiate "negotiations in good faith" meant to enact the Nuclear Weapons Convention.
These are the requests and expectations that we have for you. Please consider our requests seriously and respond to our expectations. We have hopes for your sincere response.