At the 2010 Review Conference on the Non-Proliferation of Nuclear Weapons, the delegates agreed on text considered somewhat progressive that read as follows:
“v. 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.”
Information on the International Humanitarian Law (IHL) rules can be found at the International Committee of the Red Cross website www.icrc.org) and are summarized in Appendix A.
In February, 2011, the Vancouver Declaration was developed with the input of a conference in Vancouver, Canada, organized by The Simons Foundation and the International Association of Lawyers Against Nuclear Arms. Signed by eminent experts in international law and diplomacy, the Vancouver Declaration affirms that nuclear weapons are incompatible with international humanitarian law, the law stating what is universally prohibited in warfare. The declaration observes that with their uncontrollable blast, heat, and radiation effects, nuclear weapons are indeed weapons of mass destruction that by their nature cannot comply with fundamental rules forbidding the infliction of indiscriminate and disproportionate harm. ….[T]he declaration concludes by calling on states to commence and conclude negotiations on the global prohibition and elimination of nuclear weapons as mandated by the legal obligation unanimously proclaimed by the International Court of Justice (ICJ) in 1996. An annex to the declaration specifying the applicable law states: “It cannot be lawful to continue indefinitely to possess weapons which are unlawful to use or threaten to use, are already banned for most states, and are subject to an obligation of elimination.” (Excerpted from Media Release from the conference.)
The International Committee of the Red Cross (ICRC) Council of Delegates Resolution 1 of 2011 regarding nuclear weapons:
In 2011, the ICRC Council of Delegates passed an historic Resolution 1 calling for action on nuclear weapons. The Council’s resolution:
“1. emphasizes the incalculable human suffering that can be expected to result from any use of nuclear weapons, the lack of any adequate humanitarian response capacity and the absolute imperative to prevent such use;
- finds it difficult to envisage how any use of nuclear weapons could be compatible with the rules of international humanitarian law, in particular the rules of distinction, precaution and proportionality;
- appeals to all States:
- to ensure that nuclear weapons are never again used, regardless of their views on the legality of such weapons,
- -to pursue in good faith and conclude with urgency and determination negotiations to prohibit the use of and completely eliminate nuclear weapons through a legally binding international agreement, based on existing commitments and international obligations,…”
Norway then decided to hold a conference in 2013 on the Impact of Humanitarian Law on Nucleqr Weapons. Many states, including Canada, attended. We have not as yet been provided with a copy of Canada’s statement at that meeting.
In the ICRC news release published just prior to the Oslo conference, they commented:
“The sheer number of people likely to be in need of help would be enormous. The challenges involved in bringing relief to survivors in the aftermath of a nuclear explosion would be immense,” said ICRC President Peter Maurer. “To name only a few, humanitarian agencies would need to organize the triage, treatment and possible decontamination of very large numbers of injured victims, many of them severely burned, and their transfer out of affected areas. There would also be significant concerns about the safety of those providing assistance and the risk associated with their exposure to ionizing radiation.”
These points were raised in a study of the ICRC’s capacity, and that of other agencies, to assist victims of nuclear, radiological, biological and chemical weapons. The study concluded that it is highly unlikely that the massive investments required to expand the capability to provide effective relief would ever be made and, if they nevertheless were made, they would likely remain inadequate. This finding should not, however, discourage efforts to meet the challenges and to be in a position to provide as much assistance as possible.
The ICRC’s Information Note is a major statement on absence of assistance should such a disaster occur.
Online you can find the Chairperson’s summary of the Humanitarian Impact of Nuclear Weapons (conference), Oslo, 4 – 5 March 2013 wherein these “key points can be discerned”:
- It is unlikely that any state or international body could address the immediate humanitarian emergency caused by a nuclear weapon detonation in an adequate manner and provide sufficient assistance to those affected. Moreover, it might not be possible to establish such capacities, even if it were attempted.
- The historical experience from the use and testing of nuclear weapons has demonstrated their devastating immediate and long-term effects. While political circumstances have changed, the destructive potential of nuclear weapons remains.
- The effects of a nuclear weapon detonation, irrespective of cause, will not be constrained by national borders, and will affect states and people in significant ways, regionally as well as globally.
South Africa has been working since the Oslo Conference to build consensus on a summary statement on IHL and Nuclear weapons. Their statement was read April 24, 2013 in the NPT Preparatory Committee meeting in Geneva. Eighty countries supported the statement but not Canada. However discouraging this might be, it is important to note that Canada did comment on IHL and nuclear weapons in two other statements.
As a member of the Non-Proliferation and Disarmament Initiative, Canada’s views were part of a statement by that group presented by the Netherlands in this speech which included these comments:
“The members of the NPDI participated in the Conference on the Humanitarian Impact of Weapons that took place in Oslo, Norway on March 4th and 5th 2013. The NPDI remains deeply the risk for humanity represented by the possibility that nuclear weapons could be used and by catastrophic humanitarian consequences that would result from their use. The discussions at the Conference illustrated once more the devastating immediate and long-term humanitarian weapon detonation. We welcome the offer of Mexico to convene a follow-up conference on this issue.”
And then again at the NPT on April 25th, Amb. Golberg’s statement on behalf of Canada during the Cluster One debates included these comments:
“Canada shares the concern expressed in South Africa’s earlier statement about the humanitarian consequences that would result from the use of nuclear weapons. Canada welcomed the March 2013 conference on the Humanitarian Impact of Nuclear Weapons held Oslo, as an opportunity for valuable fact-based discussions on these consequences and on humanitarian preparedness for a nuclear weapons detonation. We welcome the offer of Mexico to convene a follow-up conference on this issue.”
June 11, 2013
Nuclear Weapons and Compliance with International Humanitarian Law and the Nuclear Non-Proliferation Treaty
Charles J. Moxley Jr.,* John Burroughs,** and Jonathan Granoff
Excerpted from FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 34:595]
- Summary of the Main Rules of International Humanitarian Law
Applicable to Nuclear Weapons
The following is a summary of key rules of IHL applicable to nuclear and other weapons.
The rule of distinction/discrimination prohibits the use of a weapon that cannot discriminate in its effects between military targets and noncombatant persons and objects. It is unlawful to
use weapons whose effects are incapable of being controlled and therefore cannot be directed against a military target. 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.
The rule of proportionality prohibits the use of a weapon whose potential collateral effects upon noncombatant persons or objects would likely be disproportionate to the value of the
military advantage anticipated by the attack. The rule of proportionality requires that a state using a weapon be able to control the effects of the weapon. 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.
The rule of necessity provides that a state may only use such a level of force as is necessary to achieve the military objective of the particular strike. Any additional level of force is unlawful.
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.
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 adversary’s 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. The reprisal must be necessary to achieve that purpose and proportionate to the violation against which it is directed. These requirements of necessity and proportionality for a lawful reprisal are analogous to the requirements of necessity and proportionality (discussed immediately below) for the lawful exercise of the right of self-defense.
A state’s right of self-defense is subject to requirements of necessity and proportionality under customary international law and the Charter of the United Nations. A state’s use of force in
the exercise of self-defense is also subject to the requirements of IHL, including the requirements of distinction, proportionality and necessity, and the corollary requirement of controllability.
International law as to individual and command liability provides that military, government, and even private industrial personnel are subject to criminal conviction for violation of the
law of armed conflict if they knowingly or recklessly participate in or have supervisory responsibility over violators of the law of armed conflict. Such potential criminal liability of commanders extends not only to what the commanders knew but also to what they “should have known” concerning the violation of law.