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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Egypt’s Military Assistance to the Libyan Government: Legal or not?!

download In the midst of the chaos of the Arab Spring, there have been multiple uses of military force in the internal conflicts by third state parties. Some of these interventions raise questions about their legality according to the international law on the use of force. According to the traditional doctrine in international law, there are only two exceptions to the ban of threat or use of force between states. The first of these two exceptions is the collective use of force by the willing state members according to article 42 of the U.N. Charter in chapter VII, which is under the measures taken by the Security Council. The second exception is the inherent right of self defense according to article 51 of the U.N. Charter. Nowadays, it seems that this classical restrictive view is changing, as there is a third exception on the rise among state practice and supported by the I.C.J jurisprudence. This exception is related to the foreign military intervention by the invitation or consent of the government. It is usually referred to by international lawyers and legal scholars as intervention by invitation. The problem with this new practice is the case of civil war, which raises the question of which government has the authority to consent. There is also the question of the threshold that classifies internal conflicts into civil war and whether or not intervention is allowed in civil wars even with the consent of one of the parties.

-The argument of Consensual Intervention was used by the Egyptian government to justify the air strikes against ISIS militia in Libya. While it is clear that these strikes were a reprisal for the horrific murder of the 21 Egyptian Copts, the use of this argument was necessary due to the lack of legal justification for acts of reprisal against terrorism in international law. One of the bases of the Consensual Intervention argument is article 3 (e) of the G.A. Resolution 3314 on the definition of aggression which construes the following as an act of aggression: “The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement .” This clarifies that the uses of armed forces in that case which do not contradict the agreement with the receiving state are legal. Further support for this argument is found in article 20 of the ILC Articles on State Responsibility which states: “Valid consent by a State to the commission of a given act by another State precludes the wrongfulness of that act in relation to the former State to the extent that the act remains within the limits of that consent.”

-The problem is, when there are internal armed conflicts, which of the parties has the capacity to give consent? Or does the consent of any of the parties hold any legal value in the first place? Eliav Lieblich in his paper, “Intervention in Civil Wars; Intervention and Consent” discusses these issues. He argues against the traditional view that rejects foreign military intervention during internal armed conflict. According to this view there should be no intervention during internal armed conflicts as all parties to the conflict have lost their capacity to represent the state and therefore do not have the capacity to give consent to foreign military intervention. Lieblich’s article describes how the I.C.J adopts the view that when the intervention is in favor of the government, it is not unlawful. The I.C.J ruling in the Nicaragua Case clarified the court’s opinion supporting the legality of intervention in favor of the government as it stated:

It is difficult to see what would remain of the principle of non-intervention in international law if intervention, which is already allowable at the request of the government of a State, were also to be allowed at the request of the opposition. This would permit any State to intervene at any moment in the internal affairs of another State, whether at the request of the government or at the request of its opposition. Such a situation does not in the Court’s view correspond to the present state of international law. 

This has also been reaffirmed by in the court’s ruling in the D.R.C v. Uganda case.

-In the case of the Egyptian air strikes in Libya, there seems to be a new lenient doctrine being adopted by the international community. This new doctrine is largely a result of the ongoing ‘War on Terror’. In Libya there are supposedly two governments plus the ISIS militia groups. The one which is mostly recognized by the international community is the government of Haftar, which is the one that supposedly requested or consented to the Egyptian air strikes. This government does not actually possess effective control over the whole Libyan territory, but the other groups controlling the rest of Libya’s territory are either terrorist groups themselves, like ISIS, or affiliated with terrorist activities. For that reason the whole effective control principle is being abandoned.

-Although this new state practice might be helpful in fighting a rogue terrorist organization, it also opens the way for the misuse of force and intervention in the internal affairs of sovereign states in future situations. This is especially true when there are interests to powerful states recognizing one of the parties to an internal armed conflict in order to be able to take forcible measures. This could also lead to bigger armed conflicts when there is a conflict of interests between powerful states each recognizing one of the parties, replaying Cold War scenarios.

-The Egyptian air strikes in Libya clarify a growing problem with international law. The problem is that the international community needs to further democratize its institutions to cure its ineffectiveness while facing the growing threats to international peace and security. The unilateral use of force should still be an exception, but with the uselessness of attempting to resort to collective measures of the Security Council, unilateral use of force could transform into the norm, which destroys the whole purpose of the United Nations in trying to preserve peace and security in the world.