Questions asked in 2007
Q: What did you feel when your fellow judges of the International Court of Justice ruled in favour of the legality of using nuclear weapons in self-defence, when the survival of the state was at stake?
A: The majority of the judges of the International Court did not rule in favour of the legality of using nuclear weapons in self-defence when the survival of the state was at stake. What they did was to leave this question open without a determination one way or the other and to affirm the illegality of nuclear weapons in all other circumstances. My disagreement with them was that I did not want to leave any space whatsoever for the use of nuclear weapons.
My feeling on this matter was that if the slightest opening was left for the nuclear powers to argue that the weapon could ever be used legally, this would give them an excuse for retaining their arsenals and this would effectively prevent the total elimination of nuclear weapons.
After all, any use of a nuclear weapon in any circumstance whatsoever violates every rule of humanitarian law that has been evolved, after centuries of warfare and the sacrifice of millions of lives. No argument whatsoever could justify the indiscriminate killing of vast numbers of the population including women and children and the aged and infirm, the elimination of all historical and archaeological treasures, the pollution of earth, air and water for tens of thousands of years and the elimination of all forms of life in the area affected. Genetically it could produce adverse effects for untold generations to come. The possible escalation of the conflict, with nuclear weapons being used in retaliation as could not happen in Hiroshima and Nagasaki, the creation of a nuclear winter with the blocking out of sunlight owing to the nuclear debris and the possible elimination of all life on Earth are other consequences which must be kept constantly in mind.
No circumstances whatsoever could justify this and humanity is doomed unless this question mark hanging over its future is removed. Total prohibition in all circumstances whatsoever was required to achieve this and that is why I was so strong in my affirmation of total illegality in all circumstances.
Q: Are nuclear weapon states criminal states?
A: The use of nuclear weapons offends all the fundamental principles of humanitarian law. Should the world order survive after the use of a nuclear weapon and should the use of the nuclear weapon become thereafter a matter for judicial decision, the states using the nuclear weapons would no doubt be found to have committed a criminal act. One assumes of course that the tribunal would not be one which will be set up by the victorious states (if they should survive) to try the vanquished but an independent and impartial tribunal. The self-defence argument, which may be valid in a court considering the conduct of an individual, does not hold where the act of self defence causes death and destruction to third parties, kills vast numbers of innocent bystanders, damages generations yet unborn, and causes irreversible environmental devastation. It would be criminal also in the sense that it would be a crime against future generations.
Nuclear states equip themselves with nuclear weapons and maintain their arsenals on the basis that this acts as a deterrent, and they disclaim the intention to use them. However a careful analysis of this argument shows that, whatever their affirmations, their intention is to use a nuclear weapon should the occasion arise. I repeat that a state which uses nuclear weapons in any circumstances whatsoever will inevitably be the perpetrator of what will possibly be the greatest acts of criminality ever known in the history of mankind.
Should they use it they would have committed an absolutely criminal act. So long as they do not use it they have not reached this situation. But if they mean to use it should a situation arise, they intend to commit an undoubtedly criminal act. However intention by itself without the accompanying act is not criminal. In legalistic language this would not be criminal but in the language of morality and ethics it would be highly capable to honour and work on an intention to commit a criminal act.
Moreover the maintenance of a nuclear arsenal involves the construction, refinement and testing of such weapons before their actual use. This causes environmental damage both present and potential, which can last for thousands of years. This is indeed an act which causes actual damage and is therefore culpable both morally and legally.
It is said that previous conquerors like Attila and Jenghiz Khan used to proclaim that not even a dog or cat or mouse would be left alive when they destroyed the cities which defied them. Our generation with the nuclear weapon in its hand is far more brutal and primitive than any of those conquerors of the past, however barbaric they might have been. We will carry our cruelty much further than they ever did for we would eliminate every trace of life down to the humblest worm and ant and insect in any territory that defies us. This would exceed any of the items in the "dark lamentable catalogue of human crime".
Q: How strong do you perceive the rule of international law and the influence of the International Court of Justice in world politics?
A: International law can be the strongest weapon for the establishment of the International Rule of Law, if only the nations of the world, especially the most powerful nations, give it due recognition. What is lacking is a general awareness on the part of the people of the world of the importance and potential of international law as this is a grossly neglected subject in all educational curricula. This is what I am striving to remedy, because a citizenry who are aware of the importance of international law will not allow their leaders to flaunt it as they currently do.
I could give you numerous instances of international law and the International Court avoiding armed conflict but these are never highlighted in the media nor are the occasions highlighted when judgements of the International Court are obeyed even by states with powerful armies. For example, in the case of Libya v Chad, the Court in effect ruled that the powerful Libyan army should withdraw from a territory known as the Aouzou strip. The Libyan army in compliance with international law duly respected the order and vacated the territory, although the International Court did not have a single soldier at its disposal to enforce its decree. The international press scarcely mentioned this though there would have been blazing headlines if Libya had violated the court order.
Q: Have you ever regarded yourself not only as a judge but a politician, too?
A: As a judge, I have attempted to the best of my ability to follow the law and expand its scope of operation so as to make it a more effective instrument of international justice. Some politicians also strive to achieve a world of justice through their political actions. Both law and politics aim to achieve the advancement of the human condition towards the rule of justice. There may often be objectives that are common to law and politics. Whatever I have done as a judge has always been within the scope of the law as I understand it.
Lawyers and judges have their own sphere of activity and politicians have theirs and in an ideal world they would both strive by different means to reach their common objective of promoting human welfare.
Q: What judicial decision do you regard as the most important one?
A: I would think that the decision the Court was asked to make by the General Assembly on the illegality of nuclear weapons was the most important decision the Court was ever asked to make. This is because it involved the entire future of humanity and civilisation. At the same time there are numerous other decisions, as for example decisions on sustainable development and the powers of the Security Council, which are of great importance. Several potential wars have been averted through decisions of the Court.
In relation to the nuclear weapons case, it generated such world wide interest that the Court received petitions and memorials signed by so many millions of signatories that we had no room in our storage facilities to accommodate them. Many of them had to be housed elsewhere. Furthermore, a larger number of states took part in the active proceedings than in any other case in the court's history.
Q: You state that international law has - often ancient - roots in many countries. Could you give us some examples?
A: International law is not a modern construct. Nor is it the product of any one civilisation. Ever since civilisation began, it has been the subject of thought by the great thinkers of each age and from at least four or five thousand years ago they have visualised a world community of nations living under an overarching system of law to which all states and rules were expected to conform.
In the nuclear weapons case, for example, I was able to support my argument of illegality by drawing upon the teaching of Hindu law over four thousand years ago which had decreed that a hyper destructive weapon which could ravage the enemy's countryside and destroy large sections of its population could not be used in war because it went beyond the purposes of war. War is intended to subjugate one's enemy and live in peace with him thereafter, not to ravage his countryside and to destroy his population. This was the advice given to the Indian prince Rama, when Rama's generals advised him of the availability of such a weapon and accordingly he did not use it. Elaborate rules of conduct in warfare and duties of rulers in peace time existed in the Hindu law books.
Likewise in the world of Islam there was much thought and writing about what we would today call international law - the treatment of prisoners of war, conduct on the battlefield, the sanctity of treaties, the privileged position of diplomats and the likes. All of these were elaborately discussed on the basis of the Holy Qu'ran and the numerous traditions of the Prophet Mohamed known as the Hadiths, dealing with these matters. These were assembled in treatises on international law by writers like Al Shaibani which appeared around eight centuries before the work of Hugo Grotius, the celebrated Dutch Jurist whose great work on War and Peace in 1625 is often considered to be the point of commencement of modern international law.
An important part of modern international law is the law relating to sustainable development. In this area, the wisdom of conservation of the environment for the benefit of future generations has been very closely worked out and observed in numerous ancient cultures, for example, the culture of the native Australians going back thirty or forty thousand years showed a deep respect and reverence for the environment and for Mother Earth which sustains us all. If the environment prospers, the community prospers with it and if the environment is damaged, the community is damaged. Elaborate rules were worked out for the protection and custody of the environment. Likewise the Native Americans had worked out the principle that no important decision relating to the environment could be taken without considering the interests of seven generations to come. Decisions which neglect these perspectives are lop-sided decisions, and traditions to this effect are to be found in ancient cultures wherever one may turn.
Q: Where might the perspective of a Sri Lanka judge differ from those of a western judge? (How international is international law?)
A: The perspectives of a Sri Lankan judge differs from those of a Western judge mainly owing to the cross-cultural perspectives which the Sri Lankan judge is so immersed in.
In Sri Lanka we grow up in the midst of four major religions - Hinduism, Buddhism, Christianity, and Islam, all of which have substantial segments of the population as their followers. Consequently we grow up imbibing their culture and participating in their festivals and enjoying each other's fellowship as neighbours. A Western judge tends largely to grow up in a mono-cultural setting and does not in general have this diversity of background.
When it comes to administering the law this diversity of background gives the Sri Lankan judge the advantage of a great deal of tradition and cross-cultural perspectives.
Some western judges do indeed have this but they are in a distinct minority.
To my way of thinking the law can be greatly advanced especially to suit the needs of the 21st century, when we are moving in the direction of being global citizens with common problems such as the environment, common aspirations for a peaceful world and a set of universally shared values. This diversity of background can assist greatly in enriching the law.
Q: What are the obstacles you have had to overcome?
A: One encounters obstacles at all stages of one's career. There are many obstacles a young lawyer encounters which of course are common to young lawyers across the world. Many of them can be overcome by determination, integrity and hard work but of course there is the chance element in all of this.
However, when one crosses from the domestic stage to the international, there are numerous problems one encounters especially if one comes from a small country like Sri Lanka. The rest of the world often has the impression that it is the large countries that should take the lead note in international affairs and representatives of smaller countries attempting to enter this arena encounter much resistance. It requires hard work and much multi-cultural understanding to overcome this barrier. But when it is overcome, there is much appreciation of the different perspectives one can open up from the standpoint of a small country in the developing world - a perspective not often seen by those in a privileged position.
Especially in seeking election to the International Court of Justice, there are many problems that one encounters as it is often assumed that the two or three places available on the court for one's region should go to the larger countries in the region. However these can all be overcome but here as well there is an important element of chance and other factors which could affect the result.
Q: What are the flaws in our international law system?
A: It is true that the international legal system does not have an enforcement system backed by military force. Yet this would not be a weakness if there is sufficient desire on the part of the world community to comply with what is deemed obligatory on all members of the world community.
Already there is the well accepted principle that treaties are sacred and this has led to the widespread acceptance of the fact that no country likes to be seen as a treaty breaker. If there is more general respect for international law, the same would apply to all departments of international law and no country would like to be seen as a violator of international law.
We can never have an international system where international law is strong enough in a physical sense to impose its will on the powerful sovereign states of the world, for international law can never command an army more powerful than theirs. It is through the build up of the moral strength of international law that this result can be achieved.
One of the weaknesses of modern international law is that it tends to be mono-cultural and Eurocentric. It has not taken enough note of the deep roots which its fundamental principles have in all the major cultural traditions of the world.
International law needs therefore to be universalised and I have devoted much effort to doing what I can to universalise international law and enrich it by making it more receptive to the varied cultural traditions of the world. At the same time this makes it more acceptable to the entire world community.
Q: Your Co-Laureate Percy Schmeiser is fighting a legal battle. Do you think patents of life and the abusive practices of corporations like Monsanto with their devastating effects on farmers especially in 3rd World Countries could become a case at the International Court of Justice, setting an example for the whole world?
A: Practices which have a devastating effect on farmers, on the quality of life, on the environment, and on future generations are eminently justiciable cases.
Q: Who could bring up a case like this?
A: The International Court of Justice can only be approached either through a claim by one nation state against another, or through a request for an advisory opinion.
It might be possible in certain cases to have a state affected by these practices appearing as the complainant against the state which permits and encourages such practices. Having regard to the way developing countries are affected by this sort of activity that may not be impossible especially if the activity has the support and approval of the host state of the perpetrator.
More importantly however an available procedure would be for these affected to interest a body like the General Assembly or the World Health Organisation sufficiently to induce them to bring the matter before the international court in the form of a request for an advisory opinion. It was in this way that the question of legality of the use of nuclear weapons was brought before the International Court.
The experience of those who have used this procedure has been however that a reference such as this requires a long process of lobbying to interest the organisation sufficiently to take the cause before the International Court.
It will be through procedures such as the above that the Court can be approached as the Court ha no jurisdiction to entertain a dispute between private parties.