Humanitarian Law Versus Nuclear Weapons
GSI Event Report
October 25, 2010
A stimulating panel, Humanitarian Law Versus Nuclear Weapons, took as its theme the international community’s reaffirmation earlier this year that law governing the conduct of warfare applies in the nuclear arena. The October 25 event at the UN was co-sponsored by the Global Security Institute, the Lawyers Committee on Nuclear Policy (LCNP), and the Permanent Mission of Switzerland to the United Nations.
In opening remarks, LCNP President Peter Weiss explained international humanitarian law (IHL) goes back a very long way in recorded history, but that modern IHL begins with the First International Peace Conference held in The Hague in 1899. The conference was intended to abolish war, but managed only to establish a set of principles assuaging the brutality of war. Mr. Weiss observed that not only does IHL challenge continued reliance on nuclear weapons, it is also challenged by those weapons. He quoted the observation of President Mohammed Bedjaoui in his declaration accompanying the 1996 advisory opinion of the International Court of Justice: “The very nature of this blind weapon therefore has a destabilizing effect on humanitarian law which regulates discernment in the type of weapon used.”
Global Security Institute President Jonathan Granoff, who served as moderator, stressed the importance of building upon the provision of the May 2010 Nuclear Non-Proliferation Treaty Review Conference Final Document calling for “special efforts to establish the necessary framework to achieve and maintain a world without nuclear weapons.” That framework, he said, has to rest on the rule of law, and one key aspect of the rule of law is set out in another provision of the Final Document reaffirming that “all states should comply at all times with international law, including international humanitarian law.” An implication, according to Mr. Granoff, is that nuclear weapon states and members of nuclear alliances now have to make their policies and deployments compatible with IHL, and should establish visible processes to do so.
Charles J. Moxley, Jr., adjunct professor at Fordham Law School and a member of LCNP’s Board of Directors, explained the thrust of an article he, John Burroughs, and Mr. Granoff have coming out in the Fordham International Law Journal, “Nuclear Weapons and Compliance with International Humanitarian Law and the Nuclear Non-Proliferation Treaty.” IHL requires that use of a weapon or means of combat comply with requirements of necessity, proportionality, discrimination, and controllability. In particular due to the inability to control the effects of nuclear weapons, he said, the weapons cannot meet those requirements.
Professor Moxley also critiqued US arguments in favor of the legality of nuclear weapons, for example the claim that “low-yield” weapons could be used in remote areas with limited casualties. He noted that effects in that scenario would still be uncontrollable, and further observed that such scenarios cannot justify the main uses contemplated by doctrine and enabled by the high-yield weapons that make up the bulk of the existing arsenal. He concluded by underscoring the willingness of the authors and their organizations to work with governments and the UN on further development of the application of IHL to nuclear weapons.
LCNP Executive Director Dr. John Burroughs contended that the incompatibility of nuclear weapons with IHL logically requires the prohibition and elimination of those weapons through a global agreement, as has been the case with biological and chemical weapons, landmines, and cluster munitions. On this subject, he recommended the article by Mr. Weiss also forthcoming in the Fordham International Law Journal, Taking the Law Seriously: The Imperative Need for a Nuclear Weapons Convention. Dr. Burroughs also emphasized the significance of the recent outspokenness of the International Committee of the Red Cross about the IHL-based logic for ending the role of nuclear weapons in security policies and eliminating them.
While cautioning of the risk of distraction from the central task of eliminating nuclear forces, Dr. Burroughs suggested for consideration other possible steps. They include: national measures prohibiting involvement of any person in use of nuclear weapons and providing for prosecution or extradition of alleged violators; a treaty banning use in all circumstances and providing for prosecution or extradition, which non-nuclear weapon states could adopt in anticipation of a comprehensive agreement on elimination; and amendment of the Rome Statute of the International Criminal Court to expressly criminalize use of nuclear weapons. He finished by underlining the need for states and civil society alike to seize the new opportunity to make the case for humanitarian nuclear disarmament.
Speaking from the floor, Ambassador Jürg Lindenmann, Deputy Director of the Directorate of International Law at the Swiss Federal Department of Foreign Affairs, stated the Swiss position that nuclear weapons cannot be used consistently with seven principles of IHL: necessity, proportionality, prohibition of attacks on civilians, discrimination between military targets and non-combatants, prohibition of the infliction of unnecessary suffering, protection of neutral states, and protection of the environment, including prohibition of means of warfare that cause widespread, severe, and long-term damage to the environment.
In a spirited discussion period, one participant questioned a focus on use as opposed to possession, and another raised the issue of whether it is worthwhile for non-nuclear weapon states to pursue steps absent participation of states possessing the weapons. In reply, Mr.Weiss suggested that non-nuclear weapon states have an essential role to play in urging the nuclear weapon states to demonstrate their commitment to a nuclear weapons free world by beginning multilateral negotiations about, or at least consideration of, a nuclear weapons convention.
Mr. Granoff closed the session by quoting the late Senator Alan Cranston, founder of the Global Security Institute: “Nuclear weapons are unworthy of civilization.”
» Download the prepublication version of “Nuclear Weapons and Compliance with International Humanitarian Law and the Nuclear Non-Proliferation Treaty,” in the forthcoming Fordham International Law Journal, by Charles J. Moxley, Jr., John Burroughs and Jonathan Granoff, Winter, 2011, No. 34.