Nuclear Weapons and International Law

NATIONAL LAW UNIVERSITY ODISHA
PUBLIC INTERNATIONAL LAW PROJECT
NUCLEAR WEAPONS AND INTERNATIONAL

HUMANITARIAN LAW: SOME POLICY REFLECTIONS
Submitted to:
PROF. DR. B. HYDERVALI
Submitted by:
ANSHUMAN CHOWDHURY 2013/BBA LLB/012
DRUHEEN MOHANTY 2013/BBA LLB/020
TANMAY BHATNAGAR 2013/BBA LLB/056
NUCLEAR WEAPONS AND INTERNATIONAL HUMANITARIAN LAW: SOME POLICY

REFLECTIONS
TABLE OF CONTENTS
TABLE OF AUTHORITIES
IV
I.
CASES
IV
II.
TREATIES AND CONVENTIONS
IV
III. STATUTES
IV
IV. ARTICLES
IV
V.
BOOKS
VI. MISCELLANEOUS
INTRODUCTION
I.
EFFECTS OF NUCLEAR WEAPONS
SCOPE AND CORPUS OF INTERNATIONAL HUMANITARIAN LAW
1
3
SUMMARY OF THE MAIN RULES OF INTERNATIONAL HUMANITARIAN LAW

APPLICABLE TO NUCLEAR WEAPONS
I.
RULE OF DISTINCTION/DISCRIMINATION
II.
RULE OF PROPORTIONALITY
III. RULE OF NECESSITY
IV. COROLLARY RULE OF CONTROLLABILITY
V.
LAW ON REPRISALS
VI. RIGHT OF SELF-DEFENCE
VII.
LAW OF INDIVIDUAL AND COMMAND LIABILITY
APPLICATION OF INTERNATIONAL HUMANITARIAN LAW TO THE USE OF

NUCLEAR WEAPONS
I.
THE ICJS APPLICATION OF IHL TO NUCLEAR WEAPONS
II.
THE UNLAWFULNESS OF THE USE OF NUCLEAR WEAPONS
10
1.
Controllability
13
2.
Radiation as an Inherent Effect of Nuclear Weapons
14
3.
Radiation as a Secondary Effect of Nuclear Weapons
15
4.
Use of Low-Yield Nuclear Weapons in Remote Areas
15

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REFLECTIONS
5.
Usage of Nuclear Weaponry in Reprisal of Another States Unlawful First Usage
17
6.
Need for Evaluation of the Usage of Nuclear Weaponry on a Case-to-case Basis
18
7.
No General Prohibition of Nuclear Weaponry unless the United States Agrees to Such a
Prohibition
8.
19
Lawfulness of the Threat of Usage of All Nuclear Weaponry in the US Arsenal if the
Usage of Any Nuclear Weapon in that Arsenal Is Lawful

9.
20
The Characterization that the ICJ Held the Usage of Nuclear Weaponry to Be Lawful
20
10. The Implicit Argument that Nuclear Weaponry May Be Used in Extreme Circumstances
of Self-Defence
21
BIBLIOGRAPHY
23

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REFLECTIONS
TABLE OF AUTHORITIES
CASES
I.
Legality of the Threat or Use of Nuclear Weapons, 1996 3, 4

I.C.J. 226
Nicaragua v. United States of America, ICJ.
II.
24
TREATIES AND CONVENTIONS
Treaty on the Non-Proliferation of Nuclear Weapons, 5

July 1, 1968, 21 U.S.T. 483, 729 U.N.T.S. 161
III.
STATUTES
Judge Advocate Generals Dept., U.S. Dept Of The Air 11

Force, Air Force Operations And The Law (2d ed.
2009) [hereinafter Air Force, Operations And The Law]
IV.
ARTICLES
Charles J. Moxley Jr. et al, Nuclear Weapons and 5

Compliance with International Humanitarian Law and
the Nuclear Non-Proliferation Treaty.
Charles
Jonathan
J.
Moxley
Granoff,
Jr.,John
Burroughs,and 10
Nuclear
weapons
and
international law: a nuclear nonproliferation regime

for the 21st century.
John Burroughs, Nuclear weapons and compliance 10
with international humanitarian law and the nuclear
non-proliferation treaty

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REFLECTIONS
Jonathan
Granoff,
Nuclear
weapons
and 11
international law: a nuclear nonproliferation regime

for the 21st century.
Michael Bothe Et Al., New Rules For Victims Of 6
Armed Conflicts: Commentary On The Two 1977
Protocols Additional To The Geneva Conventions Of
1949, at 312, 317 (1982)
Robert S. Norris & Hans M. Kristensen, Nuclear
18
Notebook: U.S. Nuclear Forces 2010, Bull. Of Atomic

Scientists, May/June 2010
V.
BOOKS
Jean-Marie Henckaerts & Louise Doswald-Beck, 20

Intl
Comm.
Of
The
Red
Cross,
Customary
Humanitarian International Law, 523 (2009).

VI.
MISCELLANEOUS
Army, Law Of War Deskbook
13
Army, Operational Law Handbook
13
U.S. Dept of Defence, Nuclear Posture Review Report 23

ViiiIx, 1617 (2010)
U.S. Dept Of The Air Force, Doctrine Doc. No. 2-1.9, 11
Targeting (2006)
U.S. Dept Of The Air Force, Doctrine Doc. No. 2-12, 11
Nuclear Operations (2009)
U.S. Dept Of The Air Force, The Military Commander 11
And The Law (2009)

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REFLECTIONS
INTRODUCTION
I.
EFFECTS OF NUCLEAR WEAPONS
In the case of Legality of the Threat or Use of Nuclear Weapons1 the International Court of Justice
has discussed the nature, characteristics and effects of nuclear weapons and the menace that they
pose to the world.
The Court has stated that, nuclear weapons are explosive devices whose energy results from the
fusion or fission of the atom. By its very nature, that process, in nuclear weapons as they exist
today, releases not only immense quantities of heat and energy, but also powerful and prolonged
radiation. According to the material before the Court, the first two causes of damage are vastly
more powerful than the damage caused by other weapons, while the phenomenon of radiation is
said to be peculiar to nuclear weapons. These characteristics render the nuclear weapon
potentially catastrophic. The destructive power of nuclear weapons cannot be contained in either
space or time. They have the potential to destroy all civilization and the entire ecosystem of the
planet.2
The Court further talked about the wide-scale threat that nuclear radiation poses to human health,
agriculture, eco-systems, and natural resources. The consequences of ionizing radiation on future
generations through the genetic imperfections and ailments that it causes was also discussed by
the Court. Realizing the capability of nuclear weapons to bring about devastation to the human
race, the Court took cognisance of the matter.
Judge Weeramantry, in his dissenting opinion, noted the dangers that nuclear warfare posed in
detail, The nuclear weapon caused death and destruction; induced cancers, leukaemia, keloids
and related afflictions; caused gastro intestinal, cardiovascular and related afflictions; continued,
for decades after its use, to induce the health-related problems mentioned above; damaged the
environmental rights of future generations; caused congenital deformities, mental retardation and
genetic damage; carried the potential to cause a nuclear winter; contaminated and destroyed the
1
2
Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226, 3536.
Ibid at 1.

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REFLECTIONS
food chain; imperilled the eco-system; produced lethal levels of heat and blast; produced radiation
and radioactive fall-out; produced a disruptive electromagnetic pulse; produced social
disintegration; imperilled all civilization; threatened human survival; wreaked cultural
devastation; spanned a time range of thousands of years; threatened all life on the planet;
irreversibly damaged the rights of future generations; exterminated civilian populations; damaged
neighbouring States; produced psychological stress and fear syndromes - as no other weapons
do.3
The long term after effects of the American nuclear attack on Nagasaki and Hiroshima were
discussed by Judge Koroma to which Judge Shahabuddeen added that the worlds current nuclear
stockpile possess a destructive capacity of more than 5,000 times what caused 40 to 50 million
deaths not too long ago. It should suffice to kill every man, woman and child 10 times over.4
3
4
Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226, at 451 (Weeramantry, J., dissenting).
Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226, at 382 (Shahbuddeen, J., dissenting).

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REFLECTIONS
SCOPE AND CORPUS OF INTERNATIONAL HUMANITARIAN

LAW
The use and threat associated with the said use of nuclear weapons is governed by a number of
customary and conventional international laws. The principles of this robust body of laws has been
clearly enunciated by the ICJ, been given recognition by a large number of states around the world
and is known as International Humanitarian Law (hereinafter referred to as IHL). Other
synonymous expressions that are used to describe it are the law of war, jus in bello, and the law of
armed conflict.
While this body of laws applies to all kinds of weapons, there are many conventions, such as the
Nuclear Non-Proliferation Treaty5 or the NPT, that are particularly applicable to nuclear weapons.
At the broadest level, not only does IHL establish the limits on the use and threat associated with
the use of weapons, that include nuclear weapons, but also establishes and defines war crimes,
crimes against the peace, and crimes against humanity.6 The latter are international crimes for
which the criminal sanctions faced by individuals includes the death penalty.
By making it unlawful for states as well as for the individuals acting on behalf of states to perform
acts that are in conflict with IHL, this body of law vitally regulates threats and overt actions on the
part of the aforementioned actors. This turns out to be of vital importance to the policy of nuclear
deterrence, which is instituted on the threatened action of the use of nuclear weapons.
IHL also includes vigorous provisions governing the potential exposure to criminal prosecution of
individuals in the armed services, in government, and in industry who act on behalf of or in
conjunction with states in matters involving weapons, including nuclear weapons.7
This body of legal prescriptions,8 or the laws and customs of war, are, according to the
International Court of Justice in its Nuclear Weapons advisory opinion, essentially set out in one
Treaty on the Non-Proliferation of Nuclear Weapons, July 1, 1968, 21 U.S.T. 483, 729 U.N.T.S. 161.
Charles J. Moxley Jr. et al, Nuclear Weapons and Compliance with International Humanitarian Law and the Nuclear
Non-Proliferation Treaty.
7
Ibid at 6.
8
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 77 (July 8).
6

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REFLECTIONS
single complex system known as international humanitarian law, a body of customary rules
many of which have been codified in the Hague Law and the Geneva Law.9
The ICJ noted that the Hague Law, particularly the Regulations Respecting the Laws and Customs
of War on Land (Hague Regulations), fixed the rights and duties of belligerents in their conduct
of operations and limited the choice of methods and means of injuring the enemy in an
international armed conflict.10 The Geneva Law, protects the victims of war and aim to
provide safeguards for disabled armed forces personnel and persons not taking part in the
hostilities.11 The more recent provisions of the Additional Protocols I and II of 1977 to the Geneva
Conventions regulating the conduct of hostilities give expression and attest to the unity and
complexity of IHL.12
Ibid at 6.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 75 (July 8).
11
Ibid.
12
Michael Bothe Et Al., New Rules For Victims Of Armed Conflicts: Commentary On The Two 1977 Protocols
Additional To The Geneva Conventions Of 1949, at 312, 317 (1982).
10

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REFLECTIONS
SUMMARY OF THE MAIN RULES OF INTERNATIONAL

HUMANITARIAN LAW APPLICABLE TO NUCLEAR
WEAPONS
I.
RULE OF DISTINCTION/DISCRIMINATION
The utilisation of a weapon which is unable to discriminate in its effects between military targets
and non-combatant (or civilian) persons and objects is prohibited by the rule of
distinction/discrimination. Moreover, employing weapons whose effects cannot be controlled and
ergo are incapable of being directed against military targets is also unlawful. If the state cannot
maintain such control over the weapon, it cannot ensure that such use will comply with the rule of
discrimination and may not lawfully use the weapon.13
II.
RULE OF PROPORTIONALITY
The rule of proportionality seeks to prohibit those weapons whose utilisation would lead to likely
collateral effects upon non-combatant persons or objects which would potentially be
disproportionate to the value of the military advantage anticipated to be gained through the attack.
This rule makes it necessary for a state that is using a particular weapon to be able to control its
effects. If a state is unable to control the effects of such a weapon, it means that it will also be
unable to ensure that the collateral consequences of an attack would be proportional to the expected
military benefit.
III.
RULE OF NECESSITY
According to the rule of necessity a state may employ only that level of force which is necessary
to attain the military objective of a particular assault. Any further degree of force is prohibited by
law.
13
Ibid at 6.

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REFLECTIONS
IV.
COROLLARY RULE OF CONTROLLABILITY
The corollary rule of controllability provides that a state may not use a weapon if its effects cannot
be controlled because, in such circumstances, it would be unable to believe that the particular use
of the weapon would comply with the rules of distinction, proportionality, or necessity.14
V.
LAW ON REPRISALS
The international law on reprisals provides, at a minimum, that a state may not engage in even
limited violations of the law of armed conflict in response to an adversarys violation of such law,
unless such acts of reprisal would meet requirements of necessity and proportionality and be solely
intended to compel the adversary to adhere to the law of armed conflict. 15 Any reprisal should
necessarily be one that is made to achieve that purpose and must be proportional to the violation
in opposition of which it is focused. The requirements with regards to lawful reprisals in terms of
necessity and proportionality are comparable to similar requirements of necessity and
proportionality that must be met for the lawful implementation of a states right of self-defence.
VI.
RIGHT OF SELF-DEFENCE
A states right of self-defence is subject to requirements of necessity and proportionality under the
Charter of the United Nations and customary international law.16 Furthermore, the use of force by
a state during the exercise of its right of self-defence is subject to the requirements of IHL. This
includes the requirements laid down under the rules of distinction or discrimination,
proportionality and necessity, as well as the corollary rule of controllability.
VII.
LAW OF INDIVIDUAL AND COMMAND LIABILITY
International law with regards to individual and command liability lays down that military,
government, and even private industrial personnel are liable for criminal conviction if they violate
14
Ibid at 6.
Ibid at 6.
16
Ibid at 6.
15

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REFLECTIONS
the law of armed conflict and knowingly or recklessly participate in or have a supervisory duty or
responsibility over other violators of this law. Any such possible criminal liability faced by
commanders encompasses both what the commanders knew and also what they should have
known concerning the violation of law of armed conflict.

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REFLECTIONS
APPLICATION OF INTERNATIONAL HUMANITARIAN LAW

TO THE USE OF NUCLEAR WEAPONS
The ICJ, in its 1996 Nuclear Weapons advisory opinion, provided a broad framework for the
application of the rules of IHL to nuclear weapons, but left certain questions open17.
The majority decision of the international court can be said to declare the use of nuclear
weapons unlawful under International Humanitarian Law but the law regarding the use of lowyield nuclear weapons and the use of nuclear weapons in the case of self-defense unsettled. The
court said that there were not sufficient facts available for deciding this matter and nor were there
any sufficient legislations regarding this issue.
I.
THE ICJS APPLICATION OF IHL TO NUCLEAR WEAPONS
The major scope of International Humanitarian law is that it is aimed at the protection of the
civilian population and civilian objects and establishes the distinction between combatants and
non-combatants; States must never make civilians the object of attack and must consequently never
use weapons that are incapable of distinguishing between civilian and military targets18.
The 2nd principle of Humanitarian law prohibits the states from causing unnecessary
suffering to combatants and also from using weapons causing them such harm or uselessly
aggravating their suffering. In application of that second principle, States do not have unlimited
freedom of choice of means in the weapons they use19.
The ICJ went on to find the use of nuclear weapons scarcely reconcilable with IHL20.
The ICJ further stated:
A threat or use of nuclear weapons should . . . be compatible with the requirements of the
international law applicable in armed conflict, particularly those of the principles and rules of
17
Charles J. Moxley Jr.,John Burroughs,and Jonathan Granoff, Nuclear weapons and international law: a nuclear
nonproliferation regime for the 21st century.
18
John Burroughs, Nuclear weapons and compliance with international humanitarian law and the nuclear nonproliferation treaty.
19
Ibid.
20
Supra note at 18.

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REFLECTIONS
international humanitarian law, as well as with specific obligations under treaties and other
undertakings which expressly deal with nuclear weapons.21
The court concluded 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 law22.
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-defense, in which the very survival
of a State would be at stake.23
Referring to the contrasting contentions presented, the court concluded that it did not have
the necessary facts to determine the likely effects of the limited use of low-yield nuclear weapons
or of escalation.24
21
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, Written Statement of the United States, 2, 7
47, (June 20, 1995), available at http://www.icj-cij.org/docket/files/95/8700.pdf [hereinafter US ICJ Written
Statement] (prepared by Conrad K. Harper, Michael J. Matheson, Bruce C. Rashkow, and John H. McNeill on behalf
of the United States)
22
Jonathan Granoff, Nuclear weapons and international law: a nuclear nonproliferation regime for the 21st century.
23
See Judge Advocate Generals Dept., U.S. Dept Of The Air Force, Air Force Operations And The Law (2d ed.
2009) [hereinafter Air Force, Operations And The Law]; U.S. Dept Of The Air Force, Doctrine Doc. No. 2-1.9,
Targeting (2006) [Hereinafter Air Force, Targeting]; U.S. Dept Of The Air Force, Doctrine Doc. No. 2-12, Nuclear
Operations (2009) [Hereinafter Air Force, Nuclear Operations]; U.S. Dept Of The Air Force, The Military
Commander And The Law (2009) [Hereinafter Air Force, Military Commander And The Law]; U.S. Dept Of The
Army, Field Manual No. Fm27-10, The Law Of Land Warfare (1956) (With Change No. 1 (July 15, 1976))
[Hereinafter Army, Law Of Land Warfare]; U.S. Dept Of The Army, Manual No. Fm100-30, Nuclear Operations
(1996); Intl & Operational Law Dept, U.S. Army Judge Advocate Gen.S Legal Ctr. & Sch., Law Of War Deskbook
(2010) [hereinafter Army, Law Of War Deskbook]; Intl & Operational Law Dept, U.S. Army Judge Advocate Gen.S
Legal Ctr. And Sch., Operational Law Handbook (2010) [Hereinafter Army, Operational Law Handbook]; U.S. Dept
Of The Navy, Naval War Pub. No. 1-14m, The Commanders Handbook On The Law Of Naval Operations (2007)
[Hereinafter Naval Commanders Handbook] (this manual is issued by the U.S. Naval War College and applies to the
Coast Guard, Navy, and Marines); U.S. Dept Of The Navy, Annotated Supplement To The Commanders Handbook
On The Law Of Naval Operation (1997) [hereinafter Naval Commanders Handbook 1997 Supplement]. Some earlier
editions of US military manuals and manuals that are no longer in effect still contain statements of international law
of continuing significance. See, e.g., Joint Chiefs Of Staff, Joint Pub. No. 3-12, Doctrine For Joint Nuclear Operations
(1995); Joint Chiefs Of Staff, Joint Pub. No. 3-12.1, Doctrine For Joint Theater Nuclear Operations, Chs. 2, 25 26,
30 (1996) [Hereinafter Joint Theater Nuclear Operations]; U.S. Dept Of The Air Force, Pamphlet No. 110-34,
Commanders Handbook On The Law Of Armed Conflict (1980) [Hereinafter Air Force, Commanders Handbook];
U.S. Dept Of The Air Force, Pamphlet No. 110-31, International LawThe Conduct Of Armed Conflict And Air
Operations (1976) [hereinafter Air Force, Manual On International Law]; U.S. Dept Of The Navy, Annotated
Supplement To The Commanders Handbook On The Law Of Naval Operations (1987) [hereinafter Naval
Commanders Handbook 1989 Supplement].
24
Supra note at 5.

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REFLECTIONS
The court also noted that under the UN Charter, the threat or use of force is prohibited
except in individual or collective self-defense in response to armed attack or in instances of
military enforcement measures undertaken by the Security Council, 25 and stated that under
customary international law the right of self-defense is subject to the conditions of necessity and
proportionality. The court quoted its decision in Military and Paramilitary Activities in and against
Nicaragua: [T]here is a specific rule whereby self-defence would warrant only measures which
are proportional to the armed attack and necessary to respond to it, a rule well established in
customary international law.26
II.
THE UNLAWFULNESS OF THE USE OF NUCLEAR WEAPONS
As noted, the ICJ found the threat and use of nuclear weapons generally unlawful under IHL, but
did not reach the question of such threat and use in extreme circumstances of self-defense and
where low-yield nuclear weapons are concerned.27
Most centrally, the effects of nuclear weapons, including radiation, are inherently
uncontrollable. They are not subject to the control of the state using them or of any force on earth.
Even the blast, heat, and electromagnetic impulse effects of nuclear weapons are beyond human
control.
As the ICJ observed, The destructive power of nuclear weapons cannot be contained in
either space or time.28 But since the effect of the nuclear weapons is uncontrollable, any use of
such weapons must be deemed to be unlawful under the IHL.
25
Supra note at 24 (citing U.N. Charter art. 51).

Supra note at 22 (quoting Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), 1986 I.C.J.
14.
27
Supra note at 19.
28
There were actually two cases referred to the ICJ for an advisory opinion as to the lawfulness of the use and threat
of use of nuclear weapons: one referred by the World Health Organization (WHO) in 1993 and the other by the
United Nations General Assembly in 1995. The ICJ ultimately found that the WHO did not to have standing to assert
such a claim but proceeded to hear the case presented by the General Assembly. While legal arguments were presented
to the ICJ on international law issues in both cases, this Article focuses on the papers submitted in connection with
the General Assembly case, since those statements were more complete and substantive than those presented in
connection with the WHO referral.
26

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REFLECTIONS
When the US Congress in 1994 banned research and development of low-yield nuclear
weapons, it defined such weapons as ones with yields of less than five kilotonstactical weapons
with virtually no strategic value.29
As to the limits on a states right of self-defense, the court, after noting that a states
exercise of the right of self-defense must comply, inter alia, with the principle of proportionality,
specifically stated that a use of force that is proportionate under the law of self-defence, must, in
order to be lawful, also meet the requirements of the law applicable in armed conflict which
comprise in particular the principles and rules of humanitarian law.30
The court also quoted the statement on this point by the United Kingdom, a proponent of
the potential lawfulness of the use of nuclear weapons: Assuming that a States use of nuclear
weapons meets the requirements of self-defence, it must then be considered whether it conforms
to the fundamental principles of the law of armed conflict regulating the conduct of hostilities.31
The court further emphasized in the final paragraph of its decision that the various grounds set
forth in the decision were to be read in the light of one another.32
By definition, a weapon whose effects cannot be controlled is indiscriminate and violates
the rule of distinction, the grandfather of all principles.33 Such a weapon is also unable to satisfy
the requirement of proportionality, which mandates that a state using a weapon be able to control
its effects.34 If the state cannot control such effects, it cannot ensure that the collateral effects of
the attack will be proportional to the anticipated military advantage.
A weapon whose effects cannot be limited similarly cannot satisfy the requirement of
necessity. If a state cannot control the effects of a weapon, it cannot ensure that the level of force
it would be using with that weapon would be limited to that necessary to achieve the particular
military objective.
29
Supra note at 18.

See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, Written Statement of the Government of
the Democratic Peoples Republic of Korea (May 18, 1995).
31
Army, Operational Law Handbook, Supra note at 7.
32
The court stated that its reply to the question put to it by the General Assembly rests on the totality of the legal
grounds set forth by the Court above (paragraphs 20 to 103), each of which is to be read in the light of the others.
Some of these grounds are not such as to form the object of formal conclusions in the final paragraph of the Opinion;
they nevertheless retain, in the view of the Court, all of their importance.
33
Army, Law Of War Deskbook, Supra note at 7.
34
Air Force, Military Commander And The Law, Air Force, Targeting, Air Force, Military Commander And The
Law, Supra Note At 25.
30

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REFLECTIONS
Accordingly, the inherent uncontrollability of nuclear weapons, even low-yield nuclear
weapons, renders them unlawful under IHL. This seems to be the end of the matter. The application
of the established principles of international law to the essentially incontrovertible effects of
nuclear weapons renders the use of such weapons unlawful.
The United States, as understood by the authors, has interposed essentially ten arguments for why
some uses of nuclear weapons could be lawful under international law:
1. Controllability: The United States argues that the effects of some nuclear weapons are
controllable.
2. Radiation as an inherent effect of nuclear weapons: The United States argues that the radiation
effects of nuclear weapons does not violate the rule of necessity because radiation is an inherent
effect of nuclear weapons, not an effect added to cause extra injury to its victims.
3. Radiation as a secondary byproduct of nuclear weapons: The United States argues that radiation
does not matter as a nuclear weapons effect because it is not an intended effect of nuclear weapons,
but rather merely a byproduct.
4. Use of low-yield nuclear weapons in remote areas: The United States argues that it cannot be
said that nuclear weapons necessarily have impermissible effects under international law because
some such weapons could be used selectively in remote areas where the collateral effects would
be minor.
5. Use of nuclear weapons in reprisal for another states unlawful use of such weapons: The United
States argues that, even if it would be unlawful to use nuclear weapons in the first instance, a state
could properly use them in reprisal to respond to another states use of such weapons.
6. Need for evaluation of the use of nuclear weapons on a case-by case basis: The United States
argues that no categorical judgments can be made as to the lawfulness or not of the use of nuclear
weapons, but rather that each potential use has to be evaluated on its individual merits.
7. No prohibition of the use of nuclear weapons unless the United States agrees to such a
prohibition: The United States argues that, because international law is of a voluntary nature, there
can be no prohibition of the use of nuclear weapons unless the United
States (or, presumably, every other nuclear state) agrees explicitly to such a prohibition.
8. Lawfulness of the threat of use of all nuclear weapons in the United States arsenal if the use of
any nuclear weapon in that arsenal is lawful: The United States impliedly argues that its policy of

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REFLECTIONS
deterrence with respect to its entire arsenal of nuclear weapons is lawful as long as the use of any
weapon in that arsenal could potentially be lawful.
9. The characterization that the ICJ found the use of nuclear weapons to be lawful: The United
States at times characterizes the ICJ decision in the Nuclear Weapons advisory opinion as
upholding the lawfulness of the use and threat of use of nuclear weapons; and
10. The implicit argument that nuclear weapons may be used in extreme circumstances of selfdefense: The United States seems implicitly to have adopted the position that nuclear weapons
could lawfully be used in extreme circumstances of self-defense.
1. CONTROLLABILITY
The United States, in its defense before the ICJ of the potential lawfulness of some uses of nuclear
weapons, did not contest the requirement of controllability under international law. Its defense, instead,
was that the effects of some nuclear weapons, particularly low-yield nuclear weapons, are controllable
and that, therefore, such weapons may lawfully be used.
The United States made no defense before the ICJ of the lawfulness of the use of higher-yield
nuclear weapons, the type that typifies its nuclear arsenal. It did not even defend the lawfulness of the
use of multiple low-yield weapons or of low-yield nuclear weapons in populated areas. Its defense was,
in fact, exceedingly narrow, limited to the defense of a small portion of its nuclear arsenal.
Referring to other plausible [low-end use] scenarios, it was argued that such plausibility follows
from a fact noted in the WHO Report by Professor Rotblat, namely, that remarkable improvements
in the performance of nuclear weapons in recent years have resulted in their much greater accuracy,35
and that such scenarios would not necessarily raise issues of proportionality or discrimination.36
Addressing the subject of the many studies indicating that impermissible levels of damage would
result from the use of nuclear weapons, McNeill objected that any given study rests on static
assumptions as to factors such as the yield of a weapon, the technology that occasions how much
radiation the weapon may release, where, in relation to the earths surface it will be detonated, and the
military objective at which it would be targeted.37
35
Supra note at 25 (quoting World Health Organization, Effects Of Nuclear War On Health And Health Services (2d
Ed. 1987))
36
Ibid.
37
US ICJ Written Statement, Supra note at 27.

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REFLECTIONS
In short, based on the statements of the requirement of controllability by the United States, 38
the uncontrollability of the effects of nuclear weapons means that the use of such weapons would
be unlawful under the rules of distinction, proportionality, and necessity.39 Based on the statement
of the rule of distinction by the United States,40 the use of nuclear weapons cannot comport with
the rule of distinction because the effects of nuclear weapons cannot discriminate between
belligerent and non-belligerent persons and objects. Based on the statements of the rules of
proportionality41 and necessity42 by the United States, a state using nuclear weapons could not
assure that the effects would be limited to those permitted by those rules. In addition, the rule of
necessity requires that the strike appear likely to yield a concrete military benefit. 43A strike that is
likely to boomerang due to escalation or dispersion of radioactive particles, in a net detriment to
the acting state, would not satisfy the necessity test.44
2. RADIATION AS AN INHERENT EFFECT OF NUCLEAR WEAPONS
The United States second argument in support of the lawfulness of the use of nuclear weapons is
that, because radiation is an inherent effect of nuclear weapons, not an effect added to cause extra
injury to its victims, the radiation effects of nuclear weapons do not cause nuclear weapons to
violate the rule of necessity.
The United States articulated this position in its argument to the ICJ: that the rule of
necessity only precludes weapons designed to increase the injury or suffering of the persons
attacked beyond that necessary to accomplish the military objective45 or weapons designed
specifically to increase the suffering of persons attacked beyond that necessary to accomplish a
particular military objective.46
This restriction on the scope of the requirement of necessity seems inconsistent with the
traditional formulation of this rule as precluding all levels of destruction not necessary under the
38
Supra note at 25.

Ibid.
40
Ibid.
41
Ibid.
42
Supra note at 27.
43
See, E.G., Air Force, Targeting, Supra Note 25; Army, Operational Law Handbook, Supra Note 25; See Also Army,
Law Of War Deskbook, Supra Note 25.
44
Ibid.
45
US ICJ Written Statement, Supra Note 27 (Citing Army, Law Of Land Warfare, Supra Note 25.)
46
ICJ Hearing, Nov. 15, 1995, Supra Note 27.
39

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REFLECTIONS
circumstances.47 Such a gloss would emasculate the rule and provide for a virtually limitless range
of unnecessary uses of weapons. It certainly is the case that the addition of an element to the design
of a weapon to cause necessary injury (such as adding glass to a bullet or designing the bullet to
fracture when it enters the body) would cause the use of the weapon to violate the rule of necessity,
but there does not appear to be any basis for the assertion that the effect of the weapon causing the
unnecessary injury does not count in the legal analysis unless it was intentionally built into the
weapon.48
3. RADIATION AS A SECONDARY EFFECT OF NUCLEAR WEAPONS
The United States seems to argue that if it chooses to use a nuclear weapon, it would be doing so
for the blast and heat effectsand that the ongoing and outwardly spreading radiation effects
would not have been the focus of its intent in using the weapon; hence the use would not to be
unlawful.49 This is a variant of the immediately preceding US defense of the lawfulness of the use
of nuclear weapons.50
The United States makes this argument under several guises. Most centrally, as seen above in
the discussion of the controllability point, the United States argues that it can deliver its missiles
carrying nuclear weapons to their targets with great accuracy, so that, impliedly, the radiation
effects should not matter.51 Similarly, in its discussion of the prohibition of the use of poisons, it
argues that poisons are prohibited, but that it is acceptable under international law to use other
weaponssuch as nuclear weaponsthat have poisons (here, radiation) as a side effect. The
United States contends that, because the delivery of the poisons is accompanied by other effects
(here, blast and heat) that putatively are permissible, the overall use of the weapon is acceptable.52
4. USE OF LOW-YIELD NUCLEAR WEAPONS IN REMOTE AREAS
United States primary defense of the lawfulness of nuclear weapons before the ICJ was based on
the premise that the United States has low-yield nuclear weapons, the effects of which it can
control, with the United States postulating what it characterized as plausible scenarios, such as a
47
See Supra Note 25,27 and 29.

See Supra note 18,19.
49
Supra note at 18.
50
Supra note at 19.
51
Ibid.
52
Supra note at 25.
48

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REFLECTIONS
small number of accurate attacks by low-yield weapons against an equally small number of
military targets in nonurban areas.53
While, as noted above,54 the United States did not define in its presentations to the ICJ
what it meant by low-yield nuclear weapons, the term at the time was defined in the Joint Chiefs
of Staffs manual Doctrine for Joint Theater Nuclear Operations: very low (less than 1 kiloton);
low (1 kiloton to 10 kilotons); medium (over 10 kilotons to 50 kilotons); high (over 50 kilotons to
500 kilotons); and very high (over 500 kilotons).55
The US argument in this regard seems to lack substantial merit. While the United States
maintains some low-yield nuclear weapons, the US arsenal is made up predominately of high-yield
nuclear weapons.56In addition, as discussed above, even the low yield nuclear weapons are
unlawful under IHL, inter alia, because their effects are uncontrollable.57
Use of low-yield nuclear weapons would also appear potentially to be precluded under
international law because virtually any military objectives for which such weapons might be used
could also be addressed by conventional weapons; the rules of necessity and proportionality
prohibit the use of nuclear weapons if the military objective could be achieved through
conventional weapons.58
In addition, this argument by the United States ignores the likely effects of counter-strike
and escalation, effects which have to be included in the legal analysis.59 Theoretical scenarios of
ideal-condition strikes with no collateral effects or resultant escalation are not a realistic basis upon
which to conduct the legal analysis or establish legal norms.60
The US argument raises questions about whether the production, deployment, and other
policies regarding nuclear weapons are based on exceptional circumstances, extraordinary events
53
ICJ Hearing, Nov. 15, 1995, supra note 25.

See Supra note at 7 and accompanying notes.
55
Joint Theater Nuclear Operations, Supra note at 34.
56
Robert S. Norris & Hans M. Kristensen, Nuclear Notebook: U.S. Nuclear Forces 2010, Bull. Of Atomic Scientists,
May/June 2010.
57
Air Force, Military Commander And The Law, Air Force, Targeting, Air Force, Military Commander And The Law,
Supra Note At 25.
58
Ibid.
59
Supra note 18.
60
Supra note at 19.
54

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REFLECTIONS
in which a nuclear weapon might theoretically be used in compliance with law, or on real-world
circumstances as to likely use.61
5. USAGE OF NUCLEAR WEAPONRY IN REPRISAL OF ANOTHER STATES UNLAWFUL
FIRST USAGE
USA has stated before the ICJ that the usage of nuclear weaponry in reprisal or retaliation will
potentially be legal. While acknowledging that the reprisals have to be undertaken with the intent
to get the enemy to cease the violations of the armed conflict laws and only after all the other
means for securing the compliance of the enemy have been exhausted, and keeping proportionality
to the violations, the legality of the reprisals must be decided on a case-to-case basis, the US
contended in the ICJ.
It has further dismissed the applicability of the new provisions (which have not been included
into customary laws) of the Additional Protocol I which contains prohibitions of reprisals against
certain specific types of individuals and objects such as civilian populace.
This is a flawed argument as the usage of nuclear weaponry in reprisal of a prior unlawful and
illegal usage of nuclear weaponry by the enemy would be in itself excessive and would most likely
lead to further escalation and a broadening of the scope of violence.
Furthermore, the suggested requirements of necessary and proportionate reprisal makes the
nuclear reprisal unlawful as the effects of nuclear weaponry are largely uncontrollable and
therefore cannot be presumed to be of a limited or constrained nature. The potential effects of
reprisal as second usage such as the electromagnetic and radiation effect and fallout, possibility of
pre-emptive strikes, chemical and biological weaponry, etc. would most likely exceed the degree
of action that is necessary to convince the opposing party to restrict itself to lawful and legal forms
of warfare and therefore potentially escalate the danger level further.
The ICJ, in the Nuclear Weaponry advisory opinion, did not express a conclusion about
reprisals: Certain States asserted that the usage of nuclear weaponry in the conduct of reprisals
would be lawful. The Court does not have to examine, in this context, the question of armed
reprisals in time of peace, which are considered to be unlawful. Nor does it have to pronounce on
61
Ibid.

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REFLECTIONS
the question of belligerent reprisals save to observe that in any case any right of recourse to such
reprisals would, like self-defence, be governed inter alia by the principle of proportionality.62
The International Committee of the Red Cross (ICRC), in a recent study Customary
International Humanitarian Law, concluded that while state practice may not yet have led to a
customary rule specifically prohibiting reprisals against civilians, there appears to be at least a
trend in favour of prohibiting such reprisals: Because of existing contrary practice, albeit very
limited, it is difficult to conclude that there has yet crystallised a customary rule specifically
prohibiting reprisals against civilians during the conduct of hostilities.
Nevertheless, it is also difficult to assert that a right to resort to such reprisals continues to exist
on the strength of the practice of only a limited number of States, some of which is also ambiguous.
Hence, there appears, at a minimum, to exist a trend in favour of prohibiting such reprisals. The
International Criminal Tribunal for the Former Yugoslavia, in its review of the indictment in the
Marti case in 1996 and in its judgment in the Kupreki case in 2000, held that there was such a
prohibition already in existence, based largely on the imperatives of humanity or public
conscience. These are important indications, consistent with a substantial body of practice now
condemning or outlawing such reprisals.63
Professor Eric David, on behalf of Solomon Islands, stated before the ICJ in the Nuclear
Weaponry advisory opinion: If the dispatch of a nuclear weapon causes a million deaths,
retaliation with another nuclear weapon which will also cause a million deaths will perhaps protect
the sovereignty of the state suffering the first strike, and will perhaps satisfy the victims desire for
revenge, but it will not satisfy humanitarian law, which will have been breached not once but twice,
and two wrongs do not make a right.64
6. NEED FOR EVALUATION OF THE USAGE OF NUCLEAR WEAPONRY ON A CASE-TOCASE BASIS
The ad-hoc basis of deciding of the legality of the usage of nuclear weaponry is not tenable as the
reality is that the amount of time that is available to the US to decide as to whether or not nuclear
62
Legality Of The Threat Or Usage Of Nuclear Weaponry, Advisory Opinion, 1996 I.C.J. 226 (July 8)
Jean-Marie Henckaerts & Louise Doswald-Beck, Intl Comm. Of The Red Cross, Customary Humanitarian
International Law, 523 (2009).
64
Legality of the Threat or Usage of Nuclear Weaponry, Advisory Opinion, Verbatim Record, 49 (Nov. 14, 1995,
10:35 A.M.), Available At Http://Www.ICJcij.Org/Docket/Files/95/5943.Pdf (Authors Translation).
63

PAGE |18

REFLECTIONS
weaponry have to be used in a crisis condition will be too short practically to allow a reasonable
time to consider the lawfulness of the matter.
In their earlier manual Doctrine for Joint Theatre Nuclear Operations, the Joint Chiefs further
emphasized the potential time constraints and the need for quick ad hoc judgments as to targeting:
Because replanted theatre nuclear options do not exist for every scenario, [commanders in chief]
must have a capability to plan and execute nuclear options for nuclear forces generated on short
notice during crisis and emergency situations. During crisis action planning, geographic combatant
commanders evaluate their theatre situation and propose courses of action or initiate a request for
nuclear support.65
7. NO GENERAL PROHIBITION OF NUCLEAR WEAPONRY UNLESS THE UNITED STATES
AGREES TO SUCH A PROHIBITION
The United States has stated before the ICJ that there can be no customary or conventional rule
outlawing the usage of nuclear weaponry because the US has not ever consented to such a law and
thus, the legality of each potential usage a nuclear weaponry has to be evaluated on a case-to-case
basis.
Conrad K. Harper, Legal Advisor of the United States Department of State, told the Court
that its starting point in examining the merits should be the fundamental principle of
international law that restrictions on States cannot be presumed, but must be established by
conventional law specifically accepted by them, or in customary law established by the conduct of
the community of nations.66
Michael J. Matheson, the Deputy Legal Advisor to the US Department of State, made the same
point: restrictions upon states must be held in conventional law specifically accepted by States,
or in customary law generally accepted as such by the community of nations.67 Matheson relied
upon the Courts statement in the Nicaragua case that in international law there are no rules, other
than such rules as may be accepted by the State concerned, by treaty or otherwise, whereby the
level of armaments of a sovereign State can be limited.68
65
Joint Theatre Nuclear Operations, Supra Note 28, At Iii-10 (Emphasis Omitted)
ICJ Hearing, Nov. 15, 1995
67
Ibid
68
Ibid. (Quoting Military and Paramilitary Activities In and Against Nicaragua (Nicer. V. U.S.), 1986 I.C.J. 14, (June
27))
66

PAGE |19

REFLECTIONS
8. LAWFULNESS OF THE THREAT OF USAGE OF ALL NUCLEAR WEAPONRY IN THE US
ARSENAL IF THE USAGE OF ANY NUCLEAR WEAPON IN THAT ARSENAL IS LAWFUL
The argument by US that the possible threat of usage of all the nuclear weaponry in USs arsenal
is legal if the usage was alluded to in reference of a controllability point. It does not makes any
sense and is therefore legally untenable to even argue that the threat and usage of USAs entire
nuclear weaponry is legal because of some of its relatively low-yield weaponry can be possibly
used within permissible limits.
This however appears to remain as the US position. The USA, in its defence of its nuclear
arsenal before the ICJ, chose to focus on its capability to apply this low-yield nuclear power in a
seemingly surgical way, limiting its collateral impact and thereby abiding by the international law.
Yet USA continues to maintain an armoury composed almost mostly of nuclear weaponry with
yields of 100 to 500 kilotons, and continues to keep those weaponry at high alert for potential
usage, and to threaten their usage through the nuclear deterrence policy.
9. THE CHARACTERIZATION THAT THE ICJ HELD THE USAGE OF NUCLEAR WEAPONRY
TO BE LAWFUL
Following the ICJ decision, the USA armed forces manuals seem to imply that the ICJ, possibly
in effect, determined the usage (and its threat) of nuclear weaponry to be legal. For instance, the
Army, in its 2010 Law of War Deskbook, states, Not prohibited by international law. In 1996,
the International Court of Justice (ICJ) issued an advisory opinion that there is in neither
customary nor international law any comprehensive and universal prohibition of the threat or usage
of nuclear weaponry.69 The manual continues: However, by a split vote, the ICJ also held that
[t]he threat or usage of nuclear weaponry would generally be contrary to the rules of international
law applicable in armed conflict.70 The ICJ stated that it could not definitively conclude whether
the threat or usage of nuclear weaponry would be lawful or unlawful in an extreme circumstance
69
Army, Law Of War Deskbook, Supra Note 34, At 153 (Quoting Legality Of The Threat Or Usage Of Nuclear
Weaponry, Advisory Opinion, 1996 I.C.J. 226, (July 8))
70
Ibid

PAGE |20

REFLECTIONS
of self-defence, in which the very survival of the state would be at stake.71 The Armys 2010
Operational Law Handbook contains nearly identical statements.72
While the language might be subject to interpretation, the writers have given impression
that the United States interpreted the ICJ decision as granting permission to the usage nuclear
weaponry. Yet this is a definitely inaccurate interpretation of the Courts decision and of USAs
wider position as to possibility of applicability of the war laws to nuclear weaponry. Specifically,
the US has acknowledged repeatedly that the usage of nuclear weaponry is thereby subject to the
requisites of IHL, including the laws of corollary rule of controllability, necessity, proportionality,
and distinction.
Additionally, it will be inaccurate to present that the ICJ has held the usage of nuclear
weaponry not to be forbidden under international law. The ICJ has held the usage of nuclear
weaponry to be subjected to IHL. Furthermore, it held that the usage of nuclear weaponry seems
scarcely reconcilable with such requirements73 and would generally be contrary to the rules of
international
law
applicable
in
armed
conflict,
and
in
particular
the principles and rules of humanitarian law.74 The ICJ then further went on to say that in current
context of international law and the circumstances, the Court could not possible arrive at the
conclusion whether the threat (and usage) of nuclear weaponry would be legal or illegal in an
extreme situation of self-defence, wherein the very survival of the State would be at stake.75
10. THE IMPLICIT ARGUMENT THAT NUCLEAR WEAPONRY MAY BE USED
IN EXTREME CIRCUMSTANCES OF SELF-DEFENCE
The US, in its proposal to the Court, has acknowledged that the threat (and usage) of nuclear
weaponry is still subjected to IHL. Thus, the US does not take the stance before the Court that the
states right of self-defence overrules any international law. Nonetheless, the US, in the 2010
Nuclear Posture Review issued by the Obama Administration, states several times that it would
only usage nuclear weaponry in extreme circumstances.76 It is unclear whether such language
71
Ibid
Army, Operational Law Handbook, Supra Note 7(Quoting Legality Of The Threat Or Usage Of Nuclear Weaponry,
1996 I.C.J. 226)
73
Legality Of The Threat Or Usage Of Nuclear Weaponry, 1996 I.C.J. 226.
74
Ibid
75
Ibid
76
U.S. Dept of Defence, Nuclear Posture Review Report ViiiIx, 1617 (2010).
72

PAGE |21

REFLECTIONS
was intended to evoke the Courts concept of extreme examples of self-defence, but whether it
was, or whether it was intended to propose that such extreme situations would render usage of
nuclear weaponry more legal, it remains to be addressed. The ICJ was very clear that it wasnt
deciding that the usage of nuclear weaponry is lawful in extreme situations of self-defence wherein
the very survival of the state was at stake; it said that it was not able to arrive at a definite
conclusion at this point.
Additionally, whilst the language of the Courts decision is unclear on some issues, the
totality of the courts decision is quite clear that the states exertion of the right of self-defence is
to be subjected to IHL. A states exercise of the right of self-defence must conform to the
fundamental principles of the law of armed conflict regulating the conduct of hostilities.77
The ICJ noted, for instance, that the application by a state of its right to self-defence has to
comply with the rule of proportionality: This entitlement is resorted to by self-defence under
Article 51 of the United Nations Charter is to be subjected to certain constraints.
Some of these restrictions are implicit in the very construct of self-defence. Other requisites
are also specified in Article 51. The compliance of the exertion of the right of self-defence to the
terms of proportionality and necessity is an important aspect of customary international law. As
the ICJ stated in Nicaragua v. United States of America: there is a specific rule whereby selfdefence would warrant only measures which are proportional to the armed attack and necessary to
respond to it, a rule well established in customary international law.78 This two-fold requirement
applies equally to Article 51 of United Nations Charter, wherever force is employed. The principle
of proportionality is thus not by itself rejecting the usage of nuclear weaponry as self-defence in
all possible circumstances.
However, a usage of force that is, under the law of self-defence, proportionate must, also
meet the requisites of the law that is applied in armed conflict which must include the principles
as well as the laws of humanitarian law in order to be lawful. Additionally the very aim of IHL
was addressing the emergencies of war.79
77
Legality Of The Threat Or Usage Of Nuclear Weaponry, 1996 I.C.J. 226.(Quoting Written Statement Of The
Government Of The United Kingdom, Supra Note 7.)
78
Nicaragua v. United States of America, ICJ.
79
Legality Of The Threat Or Usage Of Nuclear Weaponry, 1996 I.C.J. 226.

PAGE |22

REFLECTIONS
BIBLIOGRAPHY
Charles J. Moxley Jr. et al, Nuclear Weapons and Compliance with International Humanitarian
Law and the Nuclear Non-Proliferation Treaty
Charles J. Moxley Jr.,John Burroughs,and Jonathan Granoff, Nuclear weapons and
international law: a nuclear nonproliferation regime for the 21st century
Jean-Marie Henckaerts & Louise Doswald-Beck, Intl Comm. Of The Red Cross, Customary
Humanitarian International Law, 523 (2009)
John Burroughs, Nuclear weapons and compliance with international humanitarian law and the
nuclear non-proliferation treaty
Jonathan Granoff, Nuclear weapons and international law: a nuclear nonproliferation regime for
the 21st century
Michael Bothe Et Al., New Rules For Victims Of Armed Conflicts: Commentary On The Two
1977 Protocols Additional To The Geneva Conventions Of 1949, at 312, 317 (1982)
Robert S. Norris & Hans M. Kristensen, Nuclear Notebook: U.S. Nuclear Forces 2010, Bull.
Of Atomic Scientists, May/June 2010

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