Humanitarian consequences, humanitarian
law: an advance in banning use of nuclear weapons John Burroughs | Lawyers Committee on Nuclear Policy
Feature article from the NPT News in Review,
the daily NGO newsletter from the
2010 nuclear Non-Proliferation Treaty Review Conference Final Edition | Tuesday, 1 June 2010
An excellent Swiss initiative at the 2010 NPT Review Conference
resulted in an innovation in the NPT review context: a consensus
statement on the moral and legal dimensions of the imperative
of non-use of nuclear weapons. The Action Plan for Nuclear
Disarmament in the Conference outcome document includes this
provision: “The Conference expresses its deep concern
at the catastrophic humanitarian consequences of any
use of nuclear weapons, and reaffirms the need for all states
at all times to comply with applicable international
law, including international humanitarian law.” (Principles
and Objectives, A(iii), emphasis added.)
International humanitarian law (IHL) protects civilians and
combatants from indiscriminate and unnecessary effects of
warfare. The Review Conference statement strongly implies
the unlawfulness of use of nuclear weapons in any circumstance,
advancing the 1996 advisory
of the International Court of Justice (ICJ).
In the general debate on May 4, Micheline Calmy-Rey, Head
of the Federal Department of Foreign Affairs, stated that
“Switzerland’s aim is to bring the humanitarian
aspect to the heart of the current debate on nuclear disarmament.”
To that end, on May 10, Switzerland and the James Martin Center
on Nonproliferation Studies released the thoughtful publication
Delegitimizing Nuclear Weapons. Adding impetus to this
effort was the April 20
of Jacob Kallenberger, President of the Geneva-based International
Committee of the Red Cross (ICRC). Based on a recent ICRC
analysis, the statement observed that there is “little”
capacity to aid victims of a use of nuclear weapons. It also
said that “the ICRC finds it difficult to envisage how
any use of nuclear weapons could be compatible with the rules
of international humanitarian law."
The original version of the provision first appeared in the
May 21 Revised Chair’s Draft Action Plan for Nuclear
Disarmament. It read: “The Conference expresses its
deep concern at the humanitarian consequences of any use of
nuclear weapons, and reaffirms the need for all states to
comply with international humanitarian law at all times.”
In closed negotiations, France reportedly called for deletion
of the provision, and the UK at least expressed doubts about
it. In its idiosyncratic
before the International Court of Justice in 1995, France
remained silent on the application of IHL to use of nuclear
weapons, arguing instead that absent an express prohibition,
their use is “authorized in the event of the exercise
of the inherent right of individual or collective self-defence.”
In contrast, the US, UK, and Russia accepted before the ICJ
that IHL applies to nuclear weapons as it does to other weapons,
though they contended implausibly that nuclear use could be
compatible with IHL depending upon the circumstances.
As revised and approved by the Conference, the second part
of the provision is changed to call for compliance “at
all times” with “applicable international law,
including international humanitarian law.” Why the reference
to “applicable” law? First, because IHL governs
methods and means of warfare, the extent of its application
in time of peace is controversial; it is also sometimes a
matter of dispute as to whether and where an armed conflict
has commenced or ended. Second, the use of the phrase “at
all times” could raise the question of whether that
phrase should be added elsewhere in the Final Document when
it calls for compliance with an NPT obligation. Modification
of “at all times” by “applicable law”
assuaged these concerns.
The revision is rhetorically regrettable because it makes
the statement less punchy and powerful. The reference to “applicable
international law” also provides a textual basis for
invoking self-defence and reprisal, though this could have
been done in any case. And it muddies the argument that doctrines
generally contemplating use of nuclear weapons—as opposed
to signals in specific circumstances of armed conflict—are
“threats” contrary to IHL. (There is no doubt
that the UN Charter prohibition of threat or use of force,
which the ICJ found potentially applicable to doctrines of
“deterrence,” is in effect whether or not an armed
conflict is underway.)
Nonetheless, the provision as adopted by the Conference without
question develops the norm of non-use of nuclear weapons.
Indeed, when combined with the practice of non-use
since the US atomic bombings of Japanese cities, the provision
strengthens the case for a customary legal obligation categorically
prescribing non-use. The welcome US statement in its Nuclear
Posture Review is also relevant here: “It is in the
U.S. interest and that of all other nations that the nearly
65-year record of nuclear non-use be extended forever.”
The reach of the Conference’s statement can be illustrated
by a comparison with the ICJ opinion. The Court explained
that the principles of IHL protecting civilians and combatants
are “fundamental” and “intransgressible,”
and that “methods and means of warfare, which would
preclude any distinction between civilian and military targets,
or which would result in unnecessary suffering to combatants,
are prohibited.” It found: “In view of the unique
characteristics of nuclear weapons … the use of such
weapons in fact seems scarcely reconcilable with respect for
such requirements.” However, given the facts and law
available to it, the Court felt that it could go only so far
as stating that threat or use of nuclear weapons is “generally
contrary” to international law, and could not reach
a conclusion one way or the other regarding an “extreme
circumstance of self-defence, in which the very survival of
a state is at stake.”
The Conference takes this further: the reference to the catastrophic
humanitarian consequences of “any” use of nuclear
weapons directly joined with the call for compliance with
law implies that use of nuclear weapons is unlawful in all
circumstances. Further, since there is no doubt that IHL applies
to armed conflict, the insistence on compliance with applicable
international law “at all times” weighs against
any suggestion that IHL bends or wavers depending upon the
circumstances. That includes the “extreme circumstance”
referred to by the ICJ, self-defence as invoked by the French,
or second use in “reprisal” purportedly aimed
at preventing further attacks. All such ambiguities and arguments
probably can only be definitively resolved by a treaty obligation
like that contained in the Chemical Weapons Convention, in
which each state party “undertakes never under any circumstances
to use chemical weapons.” But the Conference’s
statement takes us closer to that day, and reinforces the
moral unacceptability and presumptive unlawfulness of any
use of nuclear weapons in the meantime.
Dr. John Burroughs is Executive Director of the New York-based
Lawyers Committee on Nuclear Policy and author of The
Legality of Threat or Use of Nuclear Weapons: A Guide to the
Historic Opinion of the International Court of Justice (1997).
