The detonation of the first nuclear bomb in Japan in 1945 altered the ways in which war was waged – it now included the possibility of ending all life on the planet. With stockpiles of nuclear weapons of over 16 billion tons of TNT even as early as the 1990s, the world had the destructive capacity “more than 5,000 times what caused 40 to 50 million deaths not too long ago.”1Javier Pérez de Cuéllar. Statement at the University of Pennsylvania, 24 March 1983. in Disarmament. VoI. VI. No. 1, p. 91. Meanwhile, with countries working to build their own nuclear weapons, a treaty to prohibit all nuclear weapons across the world did not appear to be a realistic option. The states that possessed them were not ready to forfeit them. Since then, the permissibility of using nuclear weapons during war has been a polarizing subject. Although several steps have been taken towards banning nuclear weapons altogether, such as the Treaty on the Prohibition of Nuclear Weapons (TPNW), any such law is yet to achieve a customary status. International Humanitarian Law (IHL) has established key principles such as the rules regarding proportionality, distinction, and unnecessary suffering under the Geneva Conventions and Additional Protocols. However, a gap exists due to the lack of a customary law banning the use of nuclear weapons. Much like the principles established under IHL, Islam demarcates specific limits with reference to the use of force during times of war. Although the concept of nuclear weapons did not exist during the revelation of Islam, several Quranic verses do indicate a clear prohibition when it comes to indiscriminate killings of innocent lives. The aim of this article is to attempt to understand where International Humanitarian Law stands regarding the use of nuclear weapons during war and how it compares to the Islamic perspective on the matter.
Nuclear Weapons in international Law
By the 1990s, the world had drastically changed. The USSR had fallen and the Cold War dynamics that promoted the use of nuclear weapons had ceased to exist. At that time, the United Nations General Assembly approached the International Court of Justice to give an advisory opinion on whether the use or threat to use nuclear weapons in any circumstances is permitted under international law. The ICJ analyzed the distinct character of nuclear weapons, their abundant destructive power and inability to be contained in time and space. Examining nuclear weapons through the principles of IHL, such as proportionality and the prohibition on inflicting superfluous injury and unnecessary suffering, the Court held that their use would “generally be contrary” to international law principles regulating armed conflict. However, the ICJ did not declare their use illegal in all circumstances, and was unable to decide whether this general illegality also applied “in an extreme circumstance of self-defense in which the very survival of a state would be at stake.”2Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ GL No 95,  ICJ Rep 226, ICGJ 205 (ICJ 1996), 8th July 1996
The principles of IHL discussed by the ICJ are crucial to the argument that leans towards declaring the use of nuclear weapons illegal in all circumstances. According to IHL, any attacks that are indiscriminate in nature – i.e if they cannot distinguish between military and civilian objectives – are illegal. This is codified in Article 51 of the Additional Protocol of the Geneva Conventions 1949. While defining an indiscriminate attack, the provision states that attacks “which employ a method or means of combat which cannot be directed at a specific military objective” are termed as indiscriminate. Nuclear attacks, under most circumstances, cannot be confined to attacking a specific military objective and cause superfluous injury. Not only can they destroy entire cities, but they also produce ionizing radiations, which can cause permanent illness or death to those exposed and severely contaminates the environment3“Impact of Nuclear Weapons – ICAN.” International Campaign to Abolish Nuclear Weapons, https://www.icanw.org/catastrophic_harm. Accessed 12 December 2022. Responding to the argument on “tactical” nuclear weapons aimed which are said to cause more targeted damage, Judge Shahabuddin in his dissenting opinion argued that “nuclear weapons are not just another type of explosive weapons only occupying a higher position on the same scale.” Referring to the long-term, lasting impacts of radiation, he stated that the destructive power of a nuclear weapon is “exponentially greater.”4 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ GL No 95,  ICJ Rep 226, ICGJ 205 (ICJ 1996), 8th July 1996 Therefore, even if a nuclear attack itself may not be termed ‘indiscriminate,’ its long-term health consequences, which may also include cancer, as well as its widespread harm to the environment, could make it indiscriminate.
Further, IHL prohibits attacks that are disproportionate or excessive compared to the military advantage sought. This principle, known as the principle of proportionality, is codified in Article 51(5)(b) of Additional Protocol I. The immeasurable scale of damage caused by a nuclear attack may fall under this provision and may be seen as disproportionate to the military edge that may be sought. Similarly, other principles established under IHL including the prohibition of unnecessary suffering, as well as the principle of humanity – which stipulates that “all humans have the capacity and ability to show respect and care for all, even their enemies”5“Basic Principles of IHL.” Diakonia International Humanitarian Law Centre, https://www.diakonia.se/ihl/resources/international-humanitarian-law/basic-principles-ihl/. – also majorly indicate an inclination towards prohibition of nuclear weapons. Nonetheless, with the absence of a specific law unequivocally banning the use of nuclear weapons, states may justify their use or threat to use nuclear weapons in light of the principles outlined given the ICJ’s rather confused Advisory Opinion on the matter. It may therefore be beneficial to look at the laws of war in Islam and what perspective they may hold on the use of nuclear weapons.
Nuclear Weapons in Islamic Law
Islamic views on the ethics and practices of war are derived either directly from, or through different interpretations of, the Quran and Sunnah. Although there are contradictions when it comes to specificities of war, most scholars agree on the aversion of Islamic laws to aggression or acts of offense. One of the verses of the Quran this principle is derived from is:
“Fight in God’s cause against those who fight you, but do not overstep the limits: God does not love those who overstep the limits.” (2:190)
Although “overstepping the limits” does not directly mean offensive acts, it is, however, so broad that scholars agree that it does include attacking non-combatants, starting acts of aggression as well as reacting disproportionately to aggressions. This provides a strong indication that the rules of jihad prohibit any acts that may cause disproportionate harm to the enemy or, in other words, acts that may “overstep the limits.”
Similarly, several Quranic verses are also interpreted to mean that the rules of jihad strictly prohibit an indiscriminate attack – one which is not confined to armed combatants and causes harm to innocent civilians. One of these verses states:
“If anyone kills a person unless—in retribution for murder or spreading corruption in the land—it is as if he kills all mankind, while if any saves a life, it is as if he saves the life of all mankind.” (5:32)
Equating the taking of one life to the murder of all mankind mirrors the stern position Islam holds against innocent killings. This is the cornerstone of Islamic jihad. This, in turn, shows the inclination of Islamic principles of war away from attacks that are indiscriminate. Nuclear attacks of the likes of Hiroshima and Nagasaki have been prime examples of attacks so indiscriminate in nature that entire cities were wiped out. Applying Islam’s perspective derived from these verses of the Quran on the use of nuclear weapons, it may be concluded that the use of nuclear weapons – at least in a way that cannot confine the impacts of the attack to military objects – is impermissible. This perspective is further corroborated by the Hadith. The Prophet Muhammad is reported to have said, “do not kill a decrepit old man, or a young infant, or a child, or a woman.”6(Sunan Abu Dawud, Book 14, Number 2608) Avoiding the killing of old men, children, or women means choosing weapons that can be restricted to specific targets. The vast impact of nuclear weapons is, in most cases, bound to impact women and children just as well as it would to armed combatants. Thus, indicating its impermissibility in Islam.
Even in cases of defense, the Quran does not indicate an affirmation to use any and all means. On the contrary, the Quran emphasizes the remembrance of Allah before any attacks have been launched. It states:
“So if anyone commits aggression against you, attack him as he attacked you, but be mindful of God…” (2:194)
Though the Quran places no restriction on retaliating to an attack, it does, however, still confine those acts within the principles of proportionality and indiscriminate attacks. Similarly, since the killing of innocent lives as a collateral is not for a justified cause, it contradicts the Quranic verse which states “Nor take life – which Allah has made sacred – except for just cause” (17:33). However, at the same time, the Quran also states “If you punish [your enemy], then punish them with the like of that which you were afflicted” (16:126). This may be interpreted to mean that in cases of self defense against nuclear weapons, nuclear weapons may also be used by Muslims. However, if that is the case, all the verses that emphasis a prohibition on indiscriminate killing of civilians are negated. Since none of the verses against taking of innocent lives specify an exception to this prohibition, it may be safe to say that the above verse does not apply to nuclear weapons – or weapons where the attacks in self-defense are not restricted particularly to the enemy that is attacking the Muslims.
Many recent Muslim scholars have issued fatwahs restricting the use of weapons of mass destruction, as well as any action that may lead to indiscriminate killing of civilians and destruction of their houses, or the environment. One of the most prominent and controversial fatwahs prohibiting the use of nuclear weapons was that of Iran’s Ayatollah Khamenei. In 2012, attention was paid to a fatwah issued by Ayatollah Seyyed Ali Khamenei declaring the use of nuclear weapons illegal, and “banning all weapons of mass destruction”.7Sirjani, Farhad Shahabi. “Iran’s Nuclear Fatwah.” Iranian Review of Foreign Affairs, IV, no. No. 2, 2022, pp. 57–80. Though this declaration was met with much criticism for having political motives, many scholars have particularly analyzed the impact of these weapons in terms of their long-term environmental and biological impacts. In his research exploring the opinions of different scholars, from both Shia and Sunni schools of thought, Jaber Seyvanized concluded that “there is a definitive prohibition on WMD utilization, insofar as all noted Islamic scholars including Shias and Sunnis have consensus on its proscription.”8Seyvanizad, Jaber, WMD Under Islamic International Law (January 1, 2017). International Journal of Law, Volume 3; Issue 1; January 2017; Page No. 12-16, Available at SSRN: https://ssrn.com/abstract=3012915 These accounts of scholars from across the world and different sects rendering a unanimous view on the prohibition of nuclear weapons shows a unambiguous stance of Islamic laws on the matter – that nuclear weapons, or other weapons of mass destruction, are unlawful.
Principles of International Humanitarian Law, such as prohibition of indiscriminate attacks, proportionality and prevention of unnecessary sufferings converge with Islamic rules of jihad as understood through the Quran and Hadith. These rules, as well as the fatwahs issued by both Sunni and Shia scholars can be used to conclusively state that the use of nuclear weapons – for all the lasting human and environmental damage it causes at a scale larger than any other weapon can cause – is impermissible. Certain Quranic verses do indicate an encouragement towards attacking the enemy in the same manner as they may attack, allowing room for the argument that nuclear weapons may be used in defense against enemy’s nuclear weapons. However, justification of any form of civilian killing during war time does not exist in any Islamic texts. Nonetheless, all facts and arguments that indicate a prohibition of nuclear weapons do little to prevent states from justifying keeping nuclear weapons. While they may not have been used for over six decades, none of the states that possess them shy away from using them as leverage against enemy states, often implicitly. Nonetheless, until a customary prohibition on nuclear weapons is solidified, states will continue to harbor and threaten to use nuclear weapons. All that can be hoped for is that the threats, remain just threats.
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Zarak Asad Khan
Zarak is a fifth-year law student at Lahore University of Management Sciences. He served as the President of LUMS Law & Politics Society in the year 2021-22. He has previously worked in the areas of corporate, commercial, as well as constitutional law.