Nuclear Apocalypse is not Illegal ?!


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.


Why ISIS is not there yet? Challenges and Opportunities For Prosecuting ISIS before the International Criminal Court


The successive brutal massacres by ISIS (Islamic State in Iraq and al-Sham) represented a “rule of terror”, varying from beheadings, slaughtering, and abduction, to systematic killings, driven by their declared goal to establish their version of the Islamic Caliphate. ISIS’s goal is to control all Muslim states, as well as extending to all non-Muslim ones, which it aims to reach through applying terrorist, inhumane methods. This leaves no doubt that ISIS’s existence and acts are real threats to the international peace and security. This blog post analyzes whether members of ISIS can be prosecuted before the International Criminal Court (ICC).

Generally, terrorism is interpreted within the context of violence with the intention to “create a climate of fear” in order to achieve political goals. Failure to tackle terrorism in domestic legislation efficiently and comprehensively may indicate a general inability or a political unwillingness on the part of the concerned state. This raises the debate of the complementarity role of the ICC. The controversies between the pros and cons of adding the crime of terrorism in the Rome Statute are based on the lack of a comprehensive definition of terrorism. Unlike other international crimes, which fall under customary international law, there is no consensus between jurists on a definition of terrorism, based on the risk of over or under inclusiveness or over exclusiveness.

Although the lack of a comprehensive definition hinders adding terrorism as a distinct crime under the ICC’s jurisdiction, some terrorist attacks may be characterized as either crimes against humanity or war crimes. However, although two examples of war crimes (namely ‘taking hostages’ and ‘systematic attack against civilians’) match terrorist attacks, war crimes require the existence of an armed conflict -whether of an international or non-intentional character- which excludes terrorist attacks that occur outside the context of armed conflicts.

On the other hand, the absence of wartime conditionality in crimes against humanity makes it possible to encompass terrorism, if it is committed in a wide-spread systematic way. Although Art (7) of the Rome Statute includes crimes against humanity committed by non-state actors such as terrorist militias, it excludes some terrorist attacks which do not fall under the criteria of Art (7), for example burning alive the Jordanian fighter pilot Maaz al-Kassasbeh which lacks the civil status conditionality of the victims according to Art (7) of the Rome Statute. These types of acts still aim at terrifying a population or coercing a government in conformity with the criteria set by The International Convention for the Suppression of Terrorist Bombings, adopted by the GA. Res. 52/164.

The crimes committed by ISIS are “tailor-made for ICC intervention”. According to the Pre-Trial chamber of the ICC, the criteria for investigating crimes against humanity are: – there must be a systematic attack against civilians, and the perpetrator must have “the capability to perform acts which infringe on basic human values”, hierarchy, the control of territory, and financial support.

Basing on the previous point, the number of atrocities committed by ISIS between 2013 and 2015 and its systematic tactics, including the brutal and systematic killings and abductions of members of religious and ethnic minorities such as Yazidis in a number of different states including Libya, Iraq, and Syria, destruction of archaeological sites, the beheading of soldiers and journalists in Syria and Iraq as well as civilians in Libya shows that it meets the requirements set by the ICC for categorizing actions as a ‘crimes against humanity.’ In addition, the geographical distribution of the territory it controls in Syria, Iraq and Libya shows the depth and extent of massive influence of the group.

Another limited possibility could be ISIS’s prosecution under the crime of aggression, which requires the aggressor to be a state. Although there is a debate about whether ISIS fulfills the requirements of being a state under The Montevideo Convention on the Rights and Duties of States in 1933, there is an incident by the SC Res 405 in 1977 when it considered non state actors as aggressors in case of mercenaries in the People’s Republic of Benin. However, the ICC Statute provision concerning the crime of aggression will only come into effect starting 2017.

On the other hand, although the crimes committed by ISIS qualify as the subject matter of jurisdiction of the ICC under crimes against humanity, the ICC cannot -in principle- start an investigation into these atrocities because neither Iraq, Libya nor Syria have ratified the Rome Statue. This lack of ratification hinders the investigation process of ISIS. It is important to note that the Nigerian ratification enabled the ICC to pursue an investigation concerning the terrorist group Boko Haram and its attacks.

However, there are still two options for the ICC to prosecute ISIS which are; first the public prosecutor’s authority to start an investigation on the situation under article (15). However, this is still limited to the territorial and personal basis of jurisdiction of the court. In this case, considering that the territorial aspect is not available (because the states where the crimes are being committed did not ratify the ICC), there are many members of ISIS (about 3000) that hold citizenship of a European state which ratified the Rome Statute thus triggering the jurisdiction of the court. Although the most important are the leaders of the group rather than the minor members and that such investigation is not sufficient to deter the group, but at least this will weaken its forces and take a step toward combating the group internationally.

The second alternative is referral from the United Nations Security Council, which affirmed in its previous resolutions 1368 (2001), 1373 (2001), and 1566 (2004) that terrorism is considered a threat to international peace and security and recently Res 2170 (2014)which strongly condemned the acts of ISIS.The feasibility of this alternative depends on the political interests of the five permanent members of the Security Council and their political cost-benefit calculations which allowed a referral of the case in Libya in 2011 under SC Res 1970 and hindered a counterpart resolution on Syria despite the similar brutal circumstances. Such a referral would potentially cover all crimes committed within Syria in the context of the civil war in which ISIS is currently engaged.

To sum up, the broad variety of acts which could be labeled as terrorist acts still impede the drafting of a comprehensive definition of terrorism. As a result it cannot be included as one of the international crimes in the Rome Statute. However, the necessity for finding common characteristics between some terrorist attacks, crimes against humanity, and war crimes provides an opportunity for including the terrorist attacks. A case in point is the ISIS terrorist attacks in Iraq, Syria, and Libya which meet the requirements of ‘crimes against humanity’ according to the Rome Statute. Therefore, the two viable options for ICC’s prosecution of ISIS  which are a referral from the UN Security Council or the public prosecutor’s starting of an investigation of the crimes committed by ISIS’s perpetrators who hold a citizenship of a state which has ratified the ICC’s Rome Statute.