ANALYSIS OF THE CONTROL AND USE OF NUCLEAR WEAPON IN WAR UNDER IHL
Author: Aditya Gupta, IV year of B.A.,LL.B. from Presidency University, Bangalore
Since the invention of nuclear weapons in 1945, the morality of nuclear weapons has been debated vigorously and sometimes heatedly. This debate will continue as long as civilian populations are potentially subject to the immediate and long-term horrors of a nuclear blast and radioactive fallout; the utilization of nuclear weapons around the world today would almost certainly constitute a profound moral failure. While fully accepting the importance of discussing the morality of nuclear weapons, this article focuses on the legality of nuclear weapons, especially the legality of nuclear deterrence.
Why nuclear deterrence? Because the primary and we must hope the only function of nuclear weapons is to prevent attacks, especially nuclear attacks. If prevention isn't legally defensible, then, as a practical matter, the possession of nuclear weapons wouldn't be legally defensible. The purpose of the law is to control, direct and constrain potential actions. Law has international importance should apply to critical issues. The former president of Costa Rica said once that “while we sleep, death is awake, Death keeps watch from the warehouses that store more than 23,000 nuclear warheads, like 23,000 eyes open and waiting for a moment of carelessness.”
Aims and objectives
This paper aims to find out a few of the important subject of matters such as:
1. How Nuclear Weapons are posing threat to Humanity?
2. How Nuclear Weapons are illegal under the IHL?
3. How we can deter the use of nuclear weapons?
I am going to use the Doctrinal method along with Qualitative method for my whole Research Paper. The study focuses on extensive study of secondary data collected from government websites, various national and international journals and articles, publications, conference papers to find out the laws governing nuclear weapons.
1. What is the stand of ICJ in the use of Nuclear Weapons?
2. What is the scope of IHL in the use of Nuclear Weapons?
3. Is there is any other treaty of law which can govern the use of Nuclear Weapons?
This paper consists of a total of five chapters including Introduction and conclusion. Where chapter one includes Introduction to the Research paper. Chapter two is entitled to give knowledge about the comments of the ICJ on the use of nuclear weapons. Chapter three gives an idea of what is the scope of IHL in the use of nuclear weapons. Chapter four deals with the brief of NPT the Non-Proliferation of Nuclear Weapons Treaty. And at last the Chapter five deals with the conclusion of this whole research paper, as well as the bibliography of the research paper.
The Nuclear Weapon case ICJ 1996
For dealing the use of IHL we have to first refer and understand the stand of ICJ in the case of “Nuclear Weapon Advisory opinion.” ICJ has defined the “unique characteristics” of nuclear weapons:
“This court notes that nuclear weapons are explosive devices whose energy results from the fusion or fission of the atom. By its very nature, that process, in nuclear weapons as they exist today, releases not only immense quantities of warmth and energy but also powerful and prolonged radiation. As per the facts before the Court, the above two causes of harm are more powerful than the harm caused by other weapons, while the phenomenon of radiation is said to be peculiar to nuclear weapons. These characteristics render the weapon of mass destruction potentially catastrophic. The destructive power of nuclear weapons can't be contained in either space or time. They have the potential to destroy all civilization and the entire ecosystem of our earth.
The radiation released by an atomic explosion would lead to affecting health, agriculture, natural resources and demography of people over a really wide area. Further, the employment of nuclear weapons in modern warfare would pose a significant danger to future generations. These radiations have the potential to wreck the environment for the long run, food and marine ecosystem, and to cause genetic defects and illness in future generations. The deployment of nuclear weapons is a violation of international humanitarian law because of its impact, even though there's no comprehensive ban in Customary law of nations, nor indeed in international treaty law.
In consequence, it’s of vital importance for the Court to consider the unique characteristics of nuclear weapons, and especially their destructive capacity, their capacity to cause untold human suffering, and their ability to cause damage to the future generations.”
There was also the individual opinion was presented by the judges regarding things such as effects, the danger of using nuclear weapons and also stated that it is impossible to contain the radiations of the explosion. Also, they have discussed the consequence of the atomic attack on the Hiroshima and Nagasaki. The biggest question of the case was what is the effects of the radiation of nuclear weapons.
The Cardinal Principle
ICJ in its advisory opinion gave two Cardinal principles:
1. The first being aimed at the distinction between combatants and non-combatants; States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets while
2. According to the second of those principles, unnecessary suffering should not be caused to combatants.
3. And rely upon the Additional Protocol I Articles 48, 35.2 and 35.3.
Scope of International Humanitarian Law in use of Nuclear Weapon
The law which governs armed conflicts is the International Humanitarian Law which is also known as the law of war, Jus-in-Bello and Law of armed conflicts. This law is not so new it is the centuries-old body of law which applies to use of all weapons which also includes nuclear weapons. However, it is not the only law which governs the use of nuclear weapon there are other laws such as Nuclear Non-Proliferation Treaty (NPT), 1968 that applies specifically to nuclear weapons.
International Humanitarian Law (IHL) not only regulates threats but also tries to avert the armed actions by making it unlawful for states who are not binding to the norms set by IHL. And this is the main significance in the use of nuclear weapons. Russia, France, the United Kingdom have participated in the Nuclear weapon case with written and oral consent along with the presentation of Iran, India and North Korea. But the states which pose threat to mankind by holding a huge quantity of nuclear warheads such as China, Pakistan and Israel didn’t give participate in the case.
In the Nuclear Weapons case, ICJ stated that the IHL is “body of law and the law and customs of war” and these laws are codified in Hague Law and the Geneva Laws. The court also noted that the provisions of the Hague Law applies to the war on land and it has fixed the rights and duties of the parties in international armed conflict. Whereas mentioning the Geneva Law the court stated that the law aims to protect the victim of war and safeguarding the rights of disabled armed forces personnel and the person not taking part in the armed conflicts. Court also recognised the use of Additional Protocols I and II of 1977 as the helping law in the regulation of the conduct of hostilities.
How International Humanitarian Law is Applicable to Use of Nuclear Weapons
The United States is recognised as the superpower in the world and they also claim that the use of nuclear weapons is covered under IHL, which includes the rule of distinction/discrimination, necessity and probability, and the requirement of controllability. Let us discuss these rules applicability in detail:
1. While dealing with the use of Nuclear weapons the rule of distinction and discrimination bars the use of a weapon that cannot discriminate in between military targets and non-combatant person and objects. So, under this rule, it is difficult for use of nuclear weapons as in their use we cannot make a distinction between combatants and non-combatants. And it is unlawful to use such weapons whose destruction is incapable to control.
2. Talking about the second rule i.e. rule of proportionality it also prohibits the use of the nuclear weapon as if they are used then it will also affect the life of non-combatants. This rule requires that those states who are using weapons should control its effect. If it is not possible then that weapon should not be used as it will not be proportional.
3. In the rule of necessity, it is required that a state may use these weapons if and only if such level of force is necessary to achieve the target and no additional level of force is legal and it will be treated as unlawful under this rule of IHL.
4. The rule of controllability states that a state should not use the weapon if its effect cannot be controlled as in a situation where a weapon is used and it is not controllable, then it will lead to a situation where it harms the non-combatant people and other such people who are covered under protection in IHL.
5. The Reprisals International Law provides that a state should not engage in even a limited violation of the IHL rules. Unless The reprisal must be necessary to realize that purpose and proportionate to the violation against which it is directed. These conditions of necessity and proportionality for a lawful reprisal are equivalent to the requirements of necessity and proportionality.
6. Then the question arises that what happens in the case of self-defence for this every state have a right of self-defence but it is also subjected to rule of proportionality and necessity as stated under the Charter of United Nations and IHL. It is also subjected to all the rules discussed above.
The question arises whether IHL is a strict law in governing the use of grievous weapons. So to answer this there were many war crime trials happened and most important is the Nuremberg trials where it was given even death penalties to most of the accused who committed the crime against humanity. So, it can be seen that humanity prevailed very strongly.
Additional Treaties governing the use of Nuclear Weapons
The use of nuclear weapons is also covered by the 1970’s Treaty on the Non-Proliferation of Nuclear Weapons (NPT). Currently, there are 190 parties to the treaty and 5 countries (India, Israel, North Korea, Pakistan and South Sudan). This treaty is made to prevent the spread of the technology and the material related to Nuclear weapons. And further tries to pursue the disarmament of nuclear weapons. This treaty makes mandatory for the non-nuclear weapons equipped states to not manufacture or pursue nuclear weapons.
In the 2010 NPT Review Conference final document agreed upon the provisions of IHL. “The Conference expresses its deep concern at the catastrophic humanitarian consequences of any use of nuclear weapons, and reaffirms the need for all States to comply with international humanitarian law at all times.”
And it is tried here in this conference to coupe up with the governance of the use of Nuclear weapons and NPT under the IHL.
All in all, weapons are made to protect the values of society, including law and morality. Weapons such as nuclear weapons have an indiscriminate effect and high destruction capacity can only be used to create fear mentally and if this kind of weapons is used it will lead to the destruction of humanity and will create a humanitarian crisis. It’s an illogical thing to make a weapon whose use you want to prevent. Even for threatening purpose, it remains illogical. The challenges posed by the nuclear weapons will test the ability of survival of human being whether they belong from a developed country or from an undeveloped country, as these kinds of weapons will not first see who is capable and who is not capable of surviving from its effects. IHL plays a vital role as to deter the effects of the war and achieve peace. The applicability of IHL on the use of Nuclear Weapons is still and an active argument between the nuclear-capable states and non-nuclear capable states. Since the Hiroshima and Nagasaki Nuclear attack, our modern world has not faced any other attack as we know at the time of Hiroshima and Nagasaki attack, we don’t have that many concerns with the use of nuclear weapons as we don’t know how much and how far they can affect the humanity. But now we have seen how it affected the lives of people there and not only till that we have now more grievous nuclear weapons which can affect more people and more grievously.
We have IHL also we have various other treaties also such as NPT and ICJ judgment also gave certain things to us to consider how the use of nuclear weapons cannot affect the innocent people and how their use can be equalized as the poor, economically underdeveloped and politically unstable state are treating these kinds of weapons as an equalizer to show their power in front of big states. Not even small and poor states even big state also take the support of these weapons to show their muscles and force to some other state. And this is leading towards the path of the destruction of humanity. And also, these laws should work for the policies such as renouncing the use of nuclear weapons along with working on the path of eliminating their use totally.
In my point of view, if we cannot control the effects of a weapon, we should not make those weapons there are other things also by which we can have the maintenance of law, order and peace. A weapon whose use can bring the end of humanity and create unnecessary sufferings, how it can bring peace.
1. Books, Articles, Conferences and Judgements
2. 2010 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons.
3. The legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226.
4. Additional Protocol I (1977).
5. United Nations Security Council Summit on Nuclear Non-proliferation and Disarmament, Sep 2009.
United Nations Security Council Summit on Nuclear Non-proliferation and Disarmament, Sep 2009.
The legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226
The legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226.
Additional Protocol I (1977) additional to the Geneva Conventions contains a related rule in this area. This rule, however, is not part of customary law with regard to nuclear weapons in several nuclear-capable States, most notably France, the United Kingdom and the United States, have consistently objected to its application to nuclear weapons.
The legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226.
2010 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons