Nuclear Apocalypse is not Illegal ?!

nuclear_explosion

One of the great fears that face humanity nowadays is related to the question of whether our species is going to stand the test of time, or go extinct like many others. From the many versions of how our civilization is going to end, the greatest fear of all is self-destruction through the use of nuclear weapons. Nuclear apocalypse was and is still present in the imagination of our cultures. As a result of that, one would expect the international community to have a very firm view on the illegality of the use of such weapons of mass destruction. Surprisingly enough, the International Court of Justice in its advisory opinion on the threat or use of nuclear weapons was actually inconclusive. I am going to argue against this ambiguous opinion of the ICJ. I am going to clarify the reasons why the ICJ’s opinion should have been definitive on the illegality of the threat or use of nuclear weapons no matter what. Although this advisory opinion was in July 1996, I think we need to reemphasize the issue again. The reason for this is that we are living in a more insecure world. There is more Climate Change problems which are affecting the economies of many countries. Also there are more religious and political conflicts. All of this sets the world for more competition and more rivalry, which should make us wary of the danger of the existence of nuclear weapons.

According to the advisory opinion of the ICJ, the threat or use of nuclear weapons is generally contrary to the principles of the international law with the exception of the extreme cases of self defense. This is demonstrated in point (E) of the second clause of the dispositif;

It follows from the above-mentioned requirements that the threat
or use of nuclear weapons would generally be contrary to the rules
of international law applicable in armed conflict, and in particular
the principles and rules of humanitarian law;
However, in view of the current state of international law, and of
the elements of fact at its disposal, the Court cannot conclude
definitively whether the threat or use of nuclear weapons would be
lawful or unlawful in an extreme circumstance of self-defence, in
which the very survival of a State would be at stake

The controversy of the point of extreme case of self defense is clarified by the voting on this clause, as it was seven votes to seven by the president’s casting vote. This controversy one would expect from a political discussion not in an opinion of the ICJ. This point is the main direction of my critique, but there is also point (B) in the same clause in which the court states that;

There is in neither customary nor conventional international law
any comprehensive and universal prohibition of the threat or use
of nuclear weapons as such

From the court’s point of view the fact that nuclear weapons have grave effects on the environment does not conclude the total ban of their use in certain circumstances. It is because the environmental concerns can possibly  be tolerated if there exists the requisite military necessity. We can accept this if the effects of nuclear weapons are of limited effect and can be contained, but it is obvious that the effects of nuclear weapons cannot be controlled. These effects are of great and massive effects not preceded by any other type of weaponry. Thus their effects on the environment do not concern just the parties involved in the conflict; they involve the whole planet.

According to the ICRC, international humanitarian law bans the use of weapons which cause superfluous injuries or unnecessary suffering by their nature. Although IHL does not explicitly ban the threat or use of nuclear weapons, but the very nature of these weapons contradicts with the ban of superfluous or unnecessary suffering. The use of nuclear weapons also contradicts with the principles of protecting civilians in armed conflicts, as they do not discriminate in their destruction. This is because even if they are targeted in a way to only achieve military objectives, their effects such as radiation cannot be controlled. They might also violate the right of neutrality, as they might harm other states that are not party to the conflict.

As for the point of using nuclear weapons in self defense, it is known that any state in using its legitimate right of self defense has to follow the principles of necessity and proportionality. The ICJ does not clarify in its opinion the difference between the extreme case of self defense and the normal case. This is a new type of classification originated by the court. Perhaps the court meant to explain this by inserting the phrase ‘when the very survival of the state is at stake’, but even this is a very vague statement. It can be interpreted differently which contradicts with the purpose of the advisory opinion. May be what is meant is the case when the state is facing a nuclear attack. In that case, I do not see the reason for the probable legality for their use of nuclear weapons as a means of defense. Nuclear weapons by their nature can only be used for offense. If we assume that a state is being attacked by a nuclear weapon, how can it use a nuclear weapon to defend itself? It would be an act of reprisal that is not allowed by international law. The argument that an attacking state will learn that it will be equally damaged if it uses a nuclear weapon is not a good argument or else we can use it to justify any reprisal actions.

My critique can be wonderfully represented in the dissenting opinion of judge Weeramantry in which he states;

My considered opinion is that the use or threat of use of nuclear weapons
is illegal in any circumstances whatsoever. It violates the fundamental
principles of international law, and represents the very negation of the
humanitarian concerns which underlie the structure of humanitarian law. It offends conventional law and, in particular, the Geneva Gas Protocol of 1925, and Article 23 (a) of the Hague Regulations of 1907. It contradicts the fundamental principle of the dignity and worth of the human person on which all law depends. It endangers the human environment in a manner which threatens the entirety of life on the planet.

He is on the firm ground that the court should have settled the legal question in favor of banning the threat or use of nuclear weapons under any circumstances.

In conclusion, the topic in question clearly shows the indeterminacy of international law on the matter, which clearly shows the need for a direct global cooperation on the general ban on the threat or use of nuclear weapons under any circumstances. The use of such weapons is not of the concern of the individual wills of states, it is a matter of global importance and the political consideration should be put aside in such an issue that involves the survival of our species and our whole planet.

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2 thoughts on “Nuclear Apocalypse is not Illegal ?!

  1. Jason May 30, 2015 / 4:44 pm

    Ah Ahmed, it looks like you are caught between competing desires: you want the court just to apply the law (no split decisions resolved only by casting vote) yet you also want them to reach the ‘right’ decision. Problem, of course, is that on its face, the law tends toward the wrong decision (as Fritz Kalshoven had demonstrated some ten years prior to this decision). The ICJ, as I recall, did it’s level best not to hear this case, but the UNGA foolishly forced them.

    Obviously, pragmatically tell us they could not have decided otherwise; but so does IHL. As the court stated, there is simply no way of knowing, in the abstract, whether nuclear weapons are inherently indiscriminate, or cause superfluous injury or unnecessary suffering, because IHL does not give these terms concrete meaning, nor determined limits. Each is calculated as a function of military utility, and that is the core of the problem: nukes (can be argued to) have unique military capacities, and therefore unique military utility.

    The ICJ assumed a system of marginal military utility, and for nukes, there is no second best option. As a result, in certain circumstances the mysterious “very survival of the state”, their military utility is infinite. As a direct result, no amount of suffering can be superfluous, and no level of civilian damage can be indiscriminate.

    This case was a limit test for IHL. IHL failed.

    Liked by 1 person

  2. ahmedgk May 30, 2015 / 5:52 pm

    Hi Jason, well my disappointment with the ICJ’s opinion was that the court seemed to be saying that using Nuclear Weapons is illegal, but they couldn’t leave it at that, they had to make this one exception which ruins the whole thing ‘the extreme circumstance of self defense.” In my opinion, states can consider any armed attack as a case of survival.
    It seemed to me that they have enough texts in the law , that they can use to prohibit the use of nuclear weapons, but they did not. I guess I overestimated their role in the international law in that matter and you are right IHL is vague in its terms. Maybe my disappointment with the court’s opinion is really a disappointment with the law itself. I mean if they could make treaties prohibiting Chemical and Biological weapons, why don’t they do the same with Nuclear Weapons. I also thought it was illogical to treat this type of conflict as only of the concern of the parties involved with no regard to its effects on other states and the whole planet. It was also funny that if a state is really facing a nuclear attack and their survival is at stake, they wont really care about the law anymore, and the court opinion to me was like they wanted to assure them before they destroy the planet that it was legal 🙂

    Like

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