Nuclear Weapons and IHL

Evecar Cruz-Ferrer
Legal Adviser, Manila Delegation
Nuclear Weapons

 Nuclear weapons are explosive devices whose

energy results from the fusion or fission of the
atom. By its very nature, ..releases not only
immense quantities of heat and energy, but also
powerful and prolonged radiation.
 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. (ICJ, Nuclear
Weapons Advisory Opinion)

Nuclear Weapons

The radiation released by a nuclear explosion would affect

health, agriculture, natural resources and demography over a
very wide area. Further, the use of nuclear weapons would be
a serious danger to future generations. Ionizing radiation has
the potential to damage the future environment, food and
marine ecosystem, and to cause genetic defects and illness in
future generations. (ICJ, Nuclear Weapons Advisory Opinion)
What happens when a nuclear
bomb is dropped?
Nuclear weapons and IHL

The ICJ concluded that:

international humanitarian law applied to
the use of nuclear weapons
in view of the unique characteristics of
nuclear weapons, […] the use of [nuclear]
weapons in fact seems scarcely
reconcilable with respect for [IHL]
requirements.
their use would generally be contrary to
IHL’s principles and rules.
Nuclear weapons and IHL

Accordingly, in view of the present state of international

law viewed as a whole and of the elements of fact at its
disposal, the Court is led to observe that it cannot reach
a definitive conclusion as to the legality or illegality of
the use of nuclear weapons by a State in an extreme
circumstance of self-defence, in which its very survival
would be at stake.
 Art. I - Nuclear-weapon State Parties undertake not to
transfer to any recipient whatsoever nuclear weapons
…
 Art. II - Non-nuclear-weapon State Parties undertakes
not to receive the transfer from any transferor
whatsoever of nuclear weapons …

 Art. VI - Each State Party to the Treaty undertakes to

pursue negotiations in good faith on effective measures
relating to cessation of the nuclear arms race at an early
date and to nuclear disarmament, and on a treaty on
general and complete disarmament under strict and
effective international control.
ICJ (1996): … there exists “an obligation to pursue in good faith
and bring to a conclusion negotiations leading to nuclear
disarmament.”
Final Declaration 2010 Review Conference of
the Treaty on the Non-Proliferation of Nuclear
Weapons….

"deep concern at the catastrophic

humanitarian consequences of
any use of nuclear weapons" and
“the need for States at all times to
comply…with International
Humanitarian Law."
 Humanitarian: effects of the
weapon on people, their societies,
health infrastructure and the
environment.
 IHL-based: analysis in light of
fundamental & universal IHL rules
applied to short and long-term
effects.
30 August 1945: Cable to Dr Marcel
Junod, head of the ICRC in Japan from
Hiroshima

“Conditions appalling. City wiped out. Eighty percent of

all hospitals destroyed or seriously damaged. Inspected
two emergency hospitals, conditions beyond
description. Effect of bomb mysteriously serious. Many
victims apparently recovering suddenly suffer fatal
relapse due to decomposition of white blood cells and
other internal injuries, now dying in great numbers.
Estimated still over one hundred thousand wounded in
emergency hospitals located surroundings. Sadly
lacking bandaging materials, medicines.”
Historic role of the ICRC
& RC/RC Movement
 1945 - ICRC Delegate in Hiroshima Dr Marcel Junod,
later wrote "The Hiroshima Disaster“; Sept. 1945, ICRC:
"hope that NW will be abolished"
 1948-57 - International Conferences
 1948: "prohibit absolutely all recourse to such weapons "
 1952: "prohibition of atomic weapons"
 1957: "protect humanity from the terrible consequences of
the use of [weapons of mass destruction]
 1950 – ICRC: "reach an agreement on the prohibition of
atomic weapons"
 2009 – Council of Delegates – "calls upon States to
continue their efforts towards the elimination of nuclear
weapons with determination and urgency" (Res. 7)
 2010 – ICRC President Speech to Geneva diplomatic
corps
2011 Resolution of the Council
of Delegates
 Difficult to envisage how any use of nuclear
weapons could be compatible with the
requirements of international humanitarian law, in
particular the rules of distinction, precaution and
proportionality.

 Appeal to States to ensure that nuclear weapons

are never used again and to pursue negotiations
to prohibit the use and completely eliminate
nuclear weapons through a legally binding
international agreement;
Position of the ICRC
& RC/RC Movement

 Even today there is little

capacity, and no realistic or
coordinated international
planning, to assist the victims
of nuclear or radiological
weapons.
Position of the ICRC
& RC/RC Movement

 ... an effective means of

assisting a substantial
portion of survivors of a
nuclear detonation, while
adequately protecting those
delivering assistance, is not
currently available at national
level and not feasible at
international level
Position of the ICRC
& RC/RC Movement

 From a humanitarian
perspective, all States must
ensure that nuclear weapons
are never used again,
regardless of those States'
views on the legality of the
use of nuclear weapons.
Position of the ICRC
& RC/RC Movement
 ICRC and Japanese Red Cross co hosted the
Movement high level Conference on the
Prohibition and Elimination of Nuclear Weapons –
Nagasaki, Japan 24-26 April 2017
 Encourage increased engagement by national
society leaders and experts to further the
Movement’s objectives on nuclear weapons
 Nagasaki Appeal and Nagasaki Action Plan for
national societies was adopted
UN Conference on Nuclear
Weapons
 UN Conference to negotiate a Legally binding
instrument to Prohibit Nuclear Weapons, Leading
Towards their Total Elimination
 First treat draft: 22 May 2017
 New York meeting to developing and agreeing on
a treaty text – 15 June to 7 July 2017
 Aim: to conclude its work and adopt a treaty on 7
July
 RC/RC movement welcomes the negotiations
and views it as a historic opportunity to achieve
the prohibition of nuclear weapons and an
essential step towards their elimination.
 ICRC position on the
proposed treaty
 Recognize the following:
 catastrophic humanitarian consequences of
nuclear weapons and the imperative to prevent
their use
 Difficulty of reconciling the use of these
weapons with IHL
 Growing risks of intentional, miscalculated or
accidental use of nuclear weapons
 Nuclear weapons are abhorrent to the principles
of humanity and the dictates of public
conscience
Questions?