Nearly 80 years ago, two atomic bombs were dropped on Hiroshima and Nagasaki on August 6, and 9, 1945. Immediately after and in the five years following the attack, an estimated 340,000 people died.1Vincent Bernard, ‘A price too high: rethinking nuclear weapons in light of their human cost’ (2015) 97 Int’l Rev Red Cross 499 Witnesses recounted the aftermath as seeing people writhing like worms, having been burnt by the heat, and “every living thing was petrified in an attitude of acute pain”.2ibid. Even today, the ICRC reports that the Japanese Red Cross treats thousands of victims for cancers and other illnesses which are attributable to these bombings.3ibid. Still, so many decades later, the international community has not been able to prohibit the use of nuclear weapons. While agreements relating to nuclear weapons have been agreed to between states, the most significant of which is the Non-Proliferation Treaty (1968) in which states are obliged to work towards nuclear disarmament, this has not happened. It is unlikely to happen, as states maintain their stockpiles of such weapons for strategic purposes and other states seek them to keep powerful countries in check. While IHL does apply to nuclear weapons, the International Court of Justice in its Advisory Opinion held that there was no customary prohibition on their use. The judgment was a confused and poorly drafted one and missed an important opportunity to rule definitively on these weapons.
This month at the Diplomacy, Law and Policy Forum, we analyse nuclear weapons and war. The articles under this theme discuss the ICJ’s Advisory Opinion, the use of nuclear weapons as a deterrence, and the effects of these weapons on the environment. They seek to understand how these weapons can be used in a manner which would ensure compliance with the laws of war. Indeed, in many ways unless ‘clean’ nuclear weapons are invented which do not emit radiation, it seems unlikely that their use, in any circumstance, would not violate the cardinal principles of IHL. It is important to remember that these principles seek to protect civilian populations as well as combatants from needless suffering in war. The use of nuclear weapons goes against this fundamental underpinning of the law of armed conflict.
Effects of Nuclear Weapons
Eye-witness accounts of the effects of the nuclear weapons dropped on Hiroshima and Nagasaki make for a horrifying read. An ICRC representative, Fritz Bilfinger, reported on the effects of the atomic bomb at Hiroshima by telegram:
Visited Hiroshima thirtieth, conditions appalling stop city wiped out, eighty percent all hospitals destroyed or seriously damaged; inspected two emergency hospitals, conditions beyond description full stop effect of bomb mysteriously serious stop many victims, apparently recovering, suddenly suffer fatal relapse due to decomposition of white blood cells and other internal injuries, now dying in great numbers stop estimated still over one hundred thousand wounded in emergency hospitals located surroundings, sadly lacking bandaging materials, medicines stop.4Fritz Bilfinger, telegram dated 30 August 1945, ICRC Archives, File No. G. 8/76
Charles Pelligrino in his book, The Last Train from Hiroshima, also describes seeing survivors who resembled “[a]nt-walking alligators” who “were now eyeless and faceless-with their heads transformed into blackened alligator hides displaying red holes, indicating mouths”.5Quoted in Charles J. Moxley Jr. , John Burroughs & Jonathan Granoff, ‘Nuclear Weapons and Compliance with International Humanitarian Law and the Nuclear Non-Proliferation Treaty’ (2011) 34 Fordham Int’l LJ 595 Nuclear weapons are now proven to be ‘gene-targeting’ weapons which induce cancer throughout a survivor’s life6Slade, Richard, et al. “Protecting humanity from the catastrophic humanitarian consequences of nuclear weapons: Reframing the debate towards the humanitarian impact.” International Review of the Red Cross, vol. 97, no. 899, Autumn 2015, pp. 731-752. and the nuclear weapons tests conducted on the Marshall Islands between 1946 and 1958 caused deaths, birth defects and illnesses caused by radiation.7Lipin Tien, ‘On the Legality of Development of Nuclear Weapons’ (2011) 6 NTU L Rev 521
The environmental effects of nuclear weapons are also damaging, even if the strike is conducted in a remote area or underwater in the ocean. Land can remain radioactive after the blast for hundreds to tens of thousands of years and in water, a bomb can disperse radiation into the air or destroy the seafloor.8Evan Richardson, ‘Tactical Nuclear Weapons Cannot Comply with the Law of Armed Conflict’ (2021) 45 Fordham Int’l LJ 429 The nuclear weapons used in the Second World War have not rendered those cities in Japan uninhabitable because they were detonated in the air and were not earth-penetrating weapons, whilst Chernobyl remains radioactive for tens of thousands of years.9ibid.
Perhaps one of the worst narratives surrounding nuclear weapons is that they were a necessary evil which forced the Japanese to surrender and ended the Second World War.10Slade, Richard, et al. “Protecting humanity from the catastrophic humanitarian consequences of nuclear weapons: Reframing the debate towards the humanitarian impact.” International Review of the Red Cross, vol. 97, no. 899, Autumn 2015, pp. 731-752. However, historians now believe that Japan more likely surrendered because of Soviet entry into territory occupied by Japan while it was too militarily weak to fight a war on two fronts.11ibid. This may be a worse reality to accept for some, as it means that their use was unnecessary and the tragedies unleashed, entirely avoidable.
Nuclear Weapons under International Humanitarian Law (IHL)
Despite their use in the Second World War, IHL does not specifically prohibit the use of nuclear weapons in an armed conflict, however, it does contain general rules which apply to their use in war. The cardinal principles of IHL, namely distinction, proportionality, humanity, and precaution continue to apply to nuclear weapon attacks as do the specific rules which apply to protect the environment and prohibit indiscriminate attacks.12See generally Louis Maresca & Eleanor Mitchell, ‘The human costs and legal consequences of nuclear weapons under international humanitarian law’ (2015) 97 Int’l Rev Red Cross 621 Moreover, there is a prohibition on the use of weapons which cause superfluous injury or unnecessary suffering, arguably by their effects, the use of nuclear weapons could violate this obligation.
The question of whether the use of nuclear weapons could be compatible with international law came before the International Court of Justice in an Advisory Opinion in 1996.13Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, International Court of Justice (ICJ), 8 July 1996 The Court, in a highly criticised judgment, decided that the 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”.14ibid. Despite saying that their use seems ‘scarcely reconcilable’ with the requirements of IHL, it did not rule that their use was prohibited in an armed conflict and held instead, in a confused conflation of the law relating to the use of force and IHL that it could not decide whether their use would be in compliance with the law in “an extreme circumstance of self-defense in which the very survival of a State would be at stake”.15ibid. Whilst it is accepted that these would be violated by the use of nuclear weapons similar to those used against Hiroshima and Nagasaki, it was argued in the case that in some circumstances, such as warships on the High Seas or troops in sparsely populated areas, the effects of nuclear weapons can be controlled in such a way that they may comply with the laws of war.16US arguments before the court, but also see Dissenting Opinion Of Judge Shahabuddeen The United States had argued before the court that the effects of low-yield nuclear weapons were controllable and therefore they could be used in a manner which complied with IHL.17Charles J. Moxley Jr. , John Burroughs & Jonathan Granoff, ‘Nuclear Weapons and Compliance with International Humanitarian Law and the Nuclear Non-Proliferation Treaty’ (2011) 34 Fordham Int’l LJ 595
Those who sympathise with the ICJ contend that the Court was constrained by political considerations and by its inability to legislate and enforce its judgments.18Matheo Vincuillo, ‘Is the Threat or Use of Nuclear Weapons Permitted under International Law: A Case Note on the Nuclear Weapons Advisory Opinion’ (2016) 1 Perth ILJ 101 Therefore, no other judgment was possible and the Opinion itself was a highly practical one. In that the Court could not hold that there was a customary prohibition on the use of nuclear weapons (this is despite there being almost 50 years at the time of their non-use) as states would not give up their nuclear weapons. Instead of looking weak as it would be unable to also enforce this decision, and also having not found state practice in favour of a customary prohibition as states did maintain nuclear stockpiles, the Court had to accept that their use would generally be contrary to the laws of war but in some circumstances may not be.
Moreover, the potential situations cited in which they could perhaps be lawfully used did also depend on technological advancement. Technology has advanced rapidly since the Court’s judgment and has not only become more reliable but also more lethal. Richardson states that the Advisory Opinion should have distinguished between tactical and strategic nuclear weapons. Tactical nuclear weapons are low-yield nuclear weapons used for limited strikes.19Evan Richardson, ‘Tactical Nuclear Weapons Cannot Comply with the Law of Armed Conflict’ (2021) 45 Fordham Int’l LJ 429 He argues that the Court should have prohibited entirely the use of tactical nuclear weapons on the basis that they are per se illegal as they “are incapable of providing self-defense when the very survival of the state is at risk, provide no greater military advantage than conventional weapons, and cause indiscriminate effects in the form of the uncontrollable spread of radiation”.20ibid.
Richardson argues that the Court did not prohibit the use of nuclear weapons as it believed that a ‘clean’ tactical nuclear weapon (one that does not produce radiation) may exist in the future which would render its use in compliance with the laws of war.21ibid. However, the notion of ‘clean’ nuclear weapons remains in the realm of science fiction and soldiers and civilians would suffer unnecessarily from the radiation and resulting illness from it.22ibid. Moreover, they may also result in escalation of the conflict to full scale nuclear war which would also violate IHL.23Susan Breau, ‘Low-Yield Tactical Nuclear Weapons and the Rule of Distinction’ (2013) 15 Flinders LJ 219
While there are a number of treaties which regulate nuclear weapons, including the recent Treaty on the Prohibition of Nuclear Weapons (2017), the Non-Proliferation Treaty of 1968 remains the most important. This agreement was a response to concerns of nuclear war following the Cuban Missile crisis and remains significant due to its widespread acceptance by states. Only four states (India, Israel, Pakistan, and South Sudan) are not party to the treaty. The most significant provision remains that of Article IV which requires states to undertake, in good faith, negotiations which would lead to complete nuclear disarmament. However, the treaty itself is aspirational, vague, enshrines no concrete obligations which would enable states to achieve this end, and establishes no deadlines to achieving it. Indeed, many argue that it preserves the hegemony of the states which have nuclear weapons to the detriment of those without as it ensures non-proliferation but not disarmament.24Slade, Richard, et al. “Protecting humanity from the catastrophic humanitarian consequences of nuclear weapons: Reframing the debate towards the humanitarian impact.” International Review of the Red Cross, vol. 97, no. 899, Autumn 2015, pp. 731-752
The Court did also refer to Article VI of the Non-Proliferation Treaty in its Advisory Opinion stating that the obligation to achieve nuclear disarmament enshrined in that provision must be pursued in good faith and negotiations leading to disarmament were of “vital importance to the whole of the international community today”. Article VI has not been successful as to date there have not been any multilateral negotiations to disarm.25ibid. It is unlikely that there will be, as states with nuclear weapons continue to develop them and other states seek to acquire them as an equaliser. The NPT has had some successes, however, as South Africa signed the treaty in 1991 and gave up their nuclear weapon programme as a result.26Christopher Vail, ‘The Legality of Nuclear Weapons for Use and Deterrence’ (2017) 48 Geo J Int’l L 839 Similarly, successor states to the Soviet Union also transferred their nuclear weapons to Russia.27ibid. In 2016, Japan reduced its stockpile of nuclear matter which could be used in nuclear weapons.28ibid. However, given the recent Russian invasion of Ukraine, it is further unlikely that states will be able to negotiate to disarm as instead the arms race has further picked up pace.
Slade notes that the bombings of Hiroshima and Nagasaki “left a profound scar on our collective human consciousness by revealing our willingness to inflict complete devastation upon one another”.29Slade, Richard, et al. “Protecting humanity from the catastrophic humanitarian consequences of nuclear weapons: Reframing the debate towards the humanitarian impact.” International Review of the Red Cross, vol. 97, no. 899, Autumn 2015, pp. 731-752. Whilst they have never been used since then, states’ reluctance to relinquish their stockpiles of nuclear weapons indicates that we have not learnt our lesson from these events. We remain committed to wanting to ensure ‘mutual assured destruction’ in the event that the survival of our state is at stake. The laws of war do not allow for this eventuality under the cardinal principles of IHL. However, the ICJ’s prevaricating on this matter does not bode well for states seeking to justify their stockpiles and perhaps eventual use. As more studies come out about the effects of nuclear weapons, their radiation, and the impact on the environment, it is hoped that the international community will at some point accept that they cannot possibly be used in compliance with IHL.