International humanitarian law seeks to limit the effects of armed conflict and protect people who are not participating in hostilities by restricting the means and methods of warfare. The first Geneva Convention, entitled Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, was signed in 1864 after the advocacy of the International Committee of the Red Cross highlighted the need for humanitarian rules for war.
The four 1949 Geneva Conventions built upon earlier treaties and dealt with the atrocities witnessed during the First and Second World Wars.
The International Court of Justice considered the applicability of the Geneva Conventions in Nicaragua v. United States of America as follows:
“There is no doubt that, in the event of international armed conflicts, these rules also constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to international conflicts; and they are rules which, in the court’s opinion, reflect what the court in 1949 called “elementary considerations of humanity.”
A separate stream of international humanitarian law is associated with the Hague and regulates the conduct of war. These rules are associated with the 1899 and 1907 Hague Peace Conferences. “Hague Law” regulates how warfare is carried out, as opposed to the Geneva Convention, which regulates the treatment of wounded people, prisoners, etc.
The core principles of international humanitarian law require belligerents to distinguish between civilian and military targets; they further require that attacks be proportional and not cause excessive loss of life or damage to civilians. Generally, only attacks that are a military necessity and that do not cause undue humanitarian suffering are allowed under international humanitarian law.
Nuclear weapons
Nuclear weapons raise serious concerns in international humanitarian law, as even the use of smaller tactical nuclear weapons (less than 50 kilotonnes yield) to destroy one enemy base can result in radioactive fallout that impacts civilian populations and local wildlife.
The use of larger strategic nuclear weapons (100 kilotonnes to megatons in yield) would create explosions that destroy entire cities and render large portions of civilian areas uninhabitable for years due to radioactive fallout.
In the Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion (1996) ICJ Rep 22, the International Court of Justice ruled unanimously that:-
“A threat or use of nuclear weapons should also be compatible with the requirements of the international law applicable in armed conflict, particularly those of the principles and rules of international humanitarian law, as well as with specific obligations under treaties and other undertakings which expressly deal with nuclear weapons.”
The court ruled in a seven to seven vote, with the president of the court casting a deciding vote that “it follows from the above-mentioned requirements that the threat or 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; However, in view of the current state of international law, and of the elements of fact at its disposal, the court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self defence, in which the very survival of a State would be at stake.”
A cornerstone of nuclear doctrine between world powers is the threat of mutually assured destruction. That is to say, if the USA, Russia or China launched a nuclear strike, their enemy would ensure a reprisal attack that causes massive civilian casualties and ensures both countries suffer millions in casualties. Nuclear submarines and hardened nuclear missile silos are designed to ensure this second-strike capability. This seemingly insane doctrine actually ensures peace between world powers, as all sides are too afraid of a nuclear war to start one.
Related to mutually assured destruction is the concept legal minds call “the doctrine of belligerent reprisal.” A state that suffers a nuclear attack on its civilian population would be a victim of a violation that arguably allows a reprisal attack that is proportional to the one suffered.
Professors Scott Sagan and Allen Wiener co-authored a paper for JustSecurity.org on the issue of belligerent reprisal and stated: “The USA has not to date forsaken the possibility that it might direct attacks against the civilian population, or otherwise launch attacks that cause disproportionate civilian harm, by relying on the customary international law doctrine of belligerent reprisal. This doctrine permits, “in exceptional cases,” acts that would otherwise violate IHL when used as an enforcement measure in reaction to unlawful acts of an adversary.”
The paper concludes with a review of the customary international law prohibiting attacks on civilians by way of reprisal and advocates for the US to recognise this law and change its nuclear doctrine.
In light of China’s increasing nuclear stockpile and this month’s expiration of the Strategic Arms Reduction Treaty limiting nuclear weapons between Russia and the USA, an understanding of nuclear weapons law and policy is topical. Nuclear weapons remain the greatest threat to humanity and represent the greatest potential breach of humanitarian law.
