Nuclear weapons have massive destructive power, as the secretary general of UN referred to them – they are “the world’s deadliest weapons”. The experience of victims of nuclear weapons (both deployed weapons and weapons testing) should have convinced us that this weapon is a threat to humankind and we should simply eliminate them from the surface of Earth. Still, States have not come to an agreement which would ban any use of nuclear weapons. So far, regulation in force regarding nuclear weapons only concerns proliferation.
However, international humanitarian law (IHL) does apply and is the key legal framework that prevents the use of such dangerous weapons in conflict situations.
IHL rules limit the effects of armed conflict and protect those who are not participating in hostilities. More specifically, the most relevant rules concerning nuclear weapons prohibit attacks directed at civilians or civilian objects and prohibit indiscriminate attacks.
Simply put, the parties to an armed conflict must distinguish between civilians and combatants and between civilian objects and military objectives, at all times. And attacks of a nature to strike military objectives and civilians or civilian objects without distinction are prohibited.
The violence, the nature and the massive destructive power of nuclear weapons means that it is doubtful their use could be compatible with the respect of those rules.
The detonation of a nuclear weapon would release heat, a blast wave and radiation over wide areas. In such circumstances, there is no realistic way to control the effects and to limit them to a specific military area exclusive of civilians in order to respect the rules of IHL that protect civilian life.
Secondly, the rule of proportionality in attack requires that the concrete and direct military advantage anticipated outweigh the foreseeable incidental impact on civilians. If we take into account the long-term impact of the use of nuclear weapons, that is to say the side effects of the exposure to radiation, again, it is difficult to see how a military advantage could outweigh the foreseeable damages caused to civilians.
GROWING CAMPAIGN FOR ELIMINATION
The International Court of Justice expressed the same opinion in 1996 when it outlined that “the use of nuclear weapons would generally be contrary to the principles and rules of international humanitarian law”. Unfortunately, however the Court did not go so far as to say the use of Nuclear Weapons would be illegal in all circumstances.
Although states haven’t reached an outright ban on nuclear weapons, in recent years there has been a growing campaign for a ban among the international community. Increased awareness of the risk that use of nuclear weapons represents and the lack of capacity to respond to the humanitarian impact of nuclear weapons have led to increasingly loud calls for the elimination of nuclear weapons.
In 2011 the International Red Cross and Red Crescent Movement once more called on States to never use nuclear weapons again and to conclude negotiations to prohibit them. Since then, the Movement, other organisations and civil society across the globe have been pursuing debates and negotiations encouraging States and Governments to agree a ban on nuclear weapons. In March 2013, Norway hosted the first conference on the Humanitarian Impact of Nuclear Weapons.
This week, States will meet again in Mexico for a follow up conference and hopefully move a step closer to banning nuclear weapons for good.