Nuclear Weapons

Chapter 27
Nuclear Weapons
Rustam B. Atadjanov*
Abstract
Keywords Nuclear weapons • Weapons of mass destruction • International law • Jus ad bellum • Jus
in bello • Principles of IHL • International criminal law • International human rights law
Contents
27.1 Introduction
27.2 What is a nuclear weapon?
27.3 Existing international legal framework
27.3.1 Use of nuclear weapons
27.3.2 Non-proliferation of nuclear weapons
27.3.3 Advisory Opinion of the International Court of Justice
27.4 Nuclear weapons and relevant specific rules and principles of international law
27.4.1 Jus ad bellum
27.4.2 Jus in bello
27.4.3 International criminal law
27.4.4 International human rights law
27.5 Conclusion
References
27.1 Introduction
Few issues have ever captured people's attention and entailed such heated and often controversial
debates for decades in the modern human history to the same extent as have the problem of nuclear
weapons' use and testing. Even after the end o f the Cold War the famous phrase “weapons of mass
destruction” continues to serve first of all as a reference to nuclear, atomic or radioactive weapons
even though it is not limited only to this type of weapons but also covers chemical and biological
weapons. 1 Despite the countless invocations of the emotionally strong and resonating term “nuclear
weapons” in public discourse the effects caused by the potential detonation of nuclear weapon devices
*
The author is Dr.jur. and former Lecturer in International Criminal Law, Facu lty of Law, University of Hamburg.
Rustam B. Atadjanov (✉)
Universität Hamburg, Hamburg, Germany.
E-mail: rustamatadjanov1@g mail.co m
1 While there is no treaty or customary international law that contains an authoritative definit ion of “weapons of mass
destruction” one may be guided by the early broad definition offered in 1948 by the United Nations Co mmission for
Conventional Armaments according to which the term includes “atomic exp losive weapons, radioactive material
weapons, lethal chemical and biolog ical weapons, and any weapons developed in the future wh ich have characteristics
comparable in destructive effect to those of the atomic bomb or other weapons mentioned.” Tannenwald 2003, p. 4.
The phrase itself has appeared due to the existence of atomic bo mbs. See for the instructive analysis and review of
history of weapons of mass destruction Davis and Purcell 2006, pp. 3 et seq. For the discussion of chemical and
biological weapons in international law and ICSL, see Chapters 25 and 26, respectively.
still appear to be either misunderstood, or underappreciated, or even simply ignored by politicians or
other key decision makers in dealings between states as evidenced by recent developments in
international politics.
Notwithstanding the fact that historically this type of weapons of mass destruction has been used in
actual hostilities only once, it was enough to potently demonstrate the terrible consequences of even its
one single employment. The names of Hiroshima, Nagasaki and Semipalatinsk stand for the horrors of
the new technology – even if the latter name has no such resonance and has largely been forgotten
compared to the first two. 2 However, the existing large stockpiles of nuclear weapons in some
countries of the world indicate that the dangers associated with preserving, maintaining, testing and
ultimately employing them have not yet been sufficiently understood or reckoned with.
Nuclear weapons raise fundamental issues which go to the very heart of international law. More than
that, the threat of potential and/or actual use and/or testing these weapons closely involves several
questions that go beyond law and remain as topical today as they had been during the second half of
the 20th century after the end of the “Manhattan project”. Such issues include but are not limited to
humanitarian, political and philosophical problems.
The first category is due to the grave consequences entailed by the explosion of nuclear weapons
affecting human health and environment, often irreversibly, and making a proper humanitarian
response almost impossible. 3 The second category of problems is related to the political and security-
related nature of the real or potential use of nuclear weapons: according to some authors, the fabric of
the world's security politics as it has evolved since 1945 has made it very d ifficult to discuss nuclear
weapons as weapons per se rather than overpowering political and security issue. 4 That includes a
significant link between these weapons and five permanent members of the UN Security Council. 5 It
appears to be accepted as a truism of contemporary international politics and practice that any state in
possession of nuclear arsenal(-s) would have a powerful leverage in its external policy dialogues and
dealings with other state subjects of international law. The last, third category lies on the philosophical
plane and involves, or rather invites reflection, inter alia, on such questions as the ability of
humankind to build the most destructive types of weapons capable of annihilating the whole human
race on the planet and what it says about the human nature which uses its most potent instrument, i.e.,
its mind, for the act of extermination instead of creation.
All of these serious issues are related to legal aspects of nuclear weapons. That first of all includes the
regulation and most importantly the (universal and effective) prohibition of their use under applicable
law. This chapter deals with pertaining legal issues related to nuclear weapons. It starts with defining
the main object of the review, i.e., what is meant by “nuclear weapons” followed by the discussion of
the existing international and regional legal frameworks as well as applicable case law. The most
authoritative judicial decision to date, the famous Advisory Opinion on the Legality of the Threat or
2 Yet nowhere else in the world was there such a big concentration of nuclear explosions in one place over such a long
period (40 years). The Sov iet Union conducted 456 nuclear tests at Semipalatinsk fro m 1949 until 1989 with little
regard for their effect on the local people or environment. The full impact of radiation exposure was hidden for many
years by Soviet authorities and has only come to light since the test site closed in 1991. It is believed that a total of
700'000 people were eventually affected by those explosions.
3 For a d iscussion of the effects of the use of nuclear weapons observed after the occurrence of actual or potential attacks
especially in Hiroshima and Nagasaki, see Nystuen et al. 2014, pp. 4 -8; Kristensen and McKinzie 2015, pp. 593-597;
Maresca and Mitchell 2015, pp. 623-626.
4 Nystuen et al. 2014, pp. 1-2.
5 Ibid.
Use of Nuclear Weapons issued by the UN International Court of Justice in 1996 will briefly be
discussed. The subsequent section looks at different areas of international law which pertain to the use
and/or testing of nuclear weapons and considers relevant legal principles and rules as to their
application to nuclear weapons. 6 The main conclusion advanced by this chapter will be that despite the
existence of the claims to the effect that the very keeping of nuclear arsenals and maintaining them
constitutes a necessary evil to sustain a fragile peace in today's world and avoid total war, 7 the
negative consequences flowing out of their potential use outweigh any possible – real or perceived,
benefits (including security considerations) of storing nuclear weapons in any state's possession.
27.2 What is a nuclear weapon?
Before proceeding to the main analysis in the Chapter it makes sense first to define the main term.
This is so for the purposes of clarity and the need to distinguish between nuclear weapons and other
types of weapons of mass destruction. The following definition appears to serve these purposes well:
nuclear weapons are devices in which most or all of the explosive energy is derived from fission
(splitting of an atom into two or more parts), fusion (joining or fusing two atoms to form a heavier
single atom) or a combination of the two. 8 The first type, i.e., “fission weapons” are represented by the
simplest nuclear weapons often called “atomic bombs” while the second type incorporates a more
sophisticated boosted or thermonuclear weapons more commonly known as “hydrogen bombs”. 9
Nuclear weapons may be distinguished from other types of weapons of mass destruction by two
important characteristics. First, the amount of explosive energy and heat energy unleashed by their
detonation is enormous and can exact more thorough physical damage over a wider area than any other
non-nuclear weapon of comparable size. And second, the radioactivity dispersed through the
detonation of nuclear weapons, causes long-term fatal illness in populations affected by the blast and
poisons the attacked land for a very long period of time. 10
27.3 Existing international legal frame work
There is currently no comprehensive prohibition of the use of nuclear weapons in international law. It
appears accurate to suggest that the current international legal regime: (1) seeks to prevent the use
and testing of nuclear weapons, save in the very extreme circumstances of self-defence, in which the
very survival of a State would be at stake, and regulates the use of nuclear technologies for peaceful
purposes; (2) seeks to prevent the prolife ration of nuclear weapons beyond a very limited circle of
States which already possess them.
The next two subsections represent a general listing and brief overview of the key major (multilateral)
treaties 11 which either prohibit or limit the use and/or testing of nuclear weapons (subsect. 27.3.1), or
6
These corpora of law include only those that appear as the most relevant ones for the purposes of ICSL or those that have
a strong humanitarian co mponent. This leaves out other pertaining branches (e.g., international d isarmament law or
international environmental law), not because their being less relevant which is certainly not the case but simp ly for
reasons of limited space.
7
See Ryan Woods, "Nuclear Weapons: A Necessary Evil?", 16 January 2016, available at: http://theorbital.co.uk/nuclear-
weapons-a-necessary-evil/ Accessed 30 April 2019; Jay Nordlinger, "No Nukes, They Say", 30 October 2017, available at :
https://www.nationalreview.co m/ magazine/2017/10/30/nuclear-weapons-deterrence-necessary-evil/ Accessed 30 April
2019.
8
Davis and Purcell 2006, p. 4.
9
Ibid.
10
Ibid.
11
The list is not exhaustive; it contains the existing adopted treaties between mult iple state parties and excludes the draft or
aim at securing their non-proliferation, either internationally or at the regional level (subsect. 27.3.2).
The last subsection in this part of the Chapter deals with a key international judicial decision on
nuclear weapons; without considering it no international legal discussion would be deemed
comprehensive.
27.3.1 Use of nuclear weapons
The UN Treaty on the Prohibition of Nuclear Weapons (TPNW), adopted in 2017: the treaty includes a
comprehensive set of prohibitions on participating in any nuclear weapon activities. 12 Those activities
include undertakings not to develop, produce, test, acquire, possess, stockpile, use or threaten to use
nuclear weapons. The instrument also prohibits the deployment of nuclear weapons on national
territory and the provision of assistance to any State in the conduct of prohibited activities. States
parties will be obliged to suppress and prevent any activity prohibited under the TPNW undertaken by
persons or on territory under its jurisdiction or control. 13 In total fifty instruments of ratification
(accession, acceptance or approval) are needed in order for the Treaty to enter into force.
Comprehensive Nuclear Test Ban Treaty (CTBT), adopted in 1996: the CTBT bans all nuclear
explosions on Earth whether for military or for peaceful purposes. 14 It comprises of a preamble, 17
articles, two annexes and a Protocol with two annexes. The Treaty prohibits States Parties from
carrying out any nuclear explosion. It also prohibits any encouragement of or participation in the
carrying out of any nuclear explosion and establishes a Comprehensive Nuclear-Test-Ban Treaty
Organization in Vienna to ensure the Treaty's implementation. It has not yet entered into force due to
the absence of ratification of eight specific states.
Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water (Partial
Nuclear Test Ban Treaty, or PTBT), adopted and entered into force in 1963: the PTBT prohibits
nuclear weapons tests or any other nuclear explosion in the atmosphere, in outer space, and under
water. 15 While not banning tests underground, the Treaty does prohibit nuclear explosions in this
environment if they cause “radioactive debris to be present outside the territorial limits of the State
under whose jurisdiction or control” the explosions were conducted. In accepting limitations on
testing, the nuclear powers accepted as a common goal “an end to the contamination of man's
environment by radioactive substances.”
International Convention for the Suppression of Acts of Nuclear Terrorism (Nuclear Terror ism
Convention, or NTC), adopted in 2005, entered into force in 2007: the NTC is designed to criminalise
acts of nuclear terrorism and to promote police and judicial cooperation to prevent, investigate and
model instruments such as, e.g., the Convention on the Prohibition of the Development, Testing, Production, Stockpiling,
Transfer, Use and Threat of Use of Nuclear Weapons and on Their Elimination (the so -called “Model Nuclear Weapons
Convention”). It also does not include the existing bilateral treaties and agreements concluded between nuclear states, for
example, between the Un ited States and the Russian Federation (or the fo rmer USSR). Finally, the nuclear arms limitation
treaties, for examp le, the Treaty on Principles Governing the Activit ies of States in the Exp loration and Use of Outer
Space, Including the Moon and Other Celestial Bodies, or Outer Space Treaty, do not figure in the overview for reasons of
space or direct relevance.
12
See Lito 2018, pp. 347-357.
13
Ibid.
14
Co mprehensive Nuclear-Test-Ban Treaty, opened for signature 24 September 1996, fu ll text availab le at
https://treaties.un.org/doc/Treaties/1997/ 09/ 19970910%2007-37%20AM/Ch_XXVI_ 04p.pdf . Accessed 30 April 2019.
15
Treaty Banning Nuclear Weapon Tests in the Atmosph ere, in Outer Space and Under Water, opened for signature 8
August 1963, entered into force 10 October 1963, full text available at http://disarmament.un.org/treaties/t/test_ban/text .
Accessed 30 April 2019.
punish those acts. 16 The Convention covers a broad range of acts and possible targets, including
nuclear power plants and nuclear reactors; covers threats and attempts to commit such crimes or to
participate in them, as an accomplice; stipulates that offenders shall be either extradited or prosecuted;
encourages States to cooperate in preventing terrorist attacks by sharing information and assisting each
other in connection with criminal investigations and extradition proceedings; and deals with both crisis
situations, assisting States to solve the situations and post-crisis situations by rendering nuclear
material safe through the International Atomic Energy Agency (IAEA).
Treaty on the Limitation of Underground Nuclear Weapon Tests, or Threshold Test Ban Treaty,
adopted in 1976, entered into force in 1990: this treaty prohibits tests having a yield greater than 150
kilotons; this eliminates the possibility of testing new or existing weapons with a yield greater than a
fraction of a megaton. 17 Its protocol sets forth the verification procedures; the States parties oblige
themselves to continue negotiations towards a Comprehensive Nuclear Test Ban Treaty (see above). 18
Even a brief look at these instruments above demonstrates that those which prohibit the use or the
threat to use nuclear weapons have not yet entered into force (TPNW and CTBT but not NTC) as
compared to those which ban nuclear weapons tests (PTBT and Threshold Test Ban Treaty). One may
speculate as to the causes behind this state of affairs but it appears reasonable to suggest that here the
political factor (problem) plays a crucial role: the nuclear weapons States are simply not ready to
abandon their nukes and hence risk losing a powerful political influence that those provide in today’s
world dominated by the Realpolitik. The situation turns out quite different for various proliferation
regimes established by universal AND regional treaties as can be seen below.
27.3.2 Non-proliferation of nuclear weapons
Universal regime (not limited to a particular area or geographical region)
Treaty on the Non-Proliferation of Nuclear Weapons (Nuclear Non-Proliferation Treaty, or NPT),

adopted in 1968, entered into force in 1970: the NPT aims to prevent the spread of nuclear weapons
and weapons technology, to foster the peaceful uses of nuclear energy, and to further the goal of
disarmament. 19 The Treaty establishes a safeguards system under the responsibility of the International
Atomic Energy Agency (IAEA), which also plays a central role under the Treaty in areas of
technology transfer for peaceful purposes.
Regional nuclear weapon free zones
These treaties in general prohibit the manufacture, production, possession, testing, acquisition, receipt
and deployment of nuclear weapons within the zone. They therefore represent an important
reinforcement to the NPT. They also have an effect of barring deployment by the nuclear weapon
states, therefore precluding arrangements like the one between NATO and the U nited States in which
16
International Convention for the Suppression of Acts of Nuclear Terrorism, opened for signature 14 September 2005,
2445 U.N.T.S. 89 (entered into force 7 Ju ly 2007).
17
Treaty Bet ween The United States of America and The Un ion of Soviet Socialist Republics on the Limitat ion of
Underground Nuclear Weapon Tests (and Protocol Thereto), signed at Moscow 3 July 1974, entered into force 11
December 1990, fu ll text available at : https://www.state.gov/t/isn/5204.htm . Accessed 30 April 2019; Davis and Purcell
2006, p. 91.
18
Ibid.
19
Treaty on the Non-Pro liferat ion of Nuclear Weapons (NPT), opened for signature 1 Ju ly 1968, entered into force 5
March 1970, full text available at https://www.un.org/disarmament/wmd/nuclear/npt/text . Accessed 30 April 2019.
the US nuclear bombs are deployed in NATO countries. They, further, contribute to confidence-
building and consensus in the region they cover.
Treaty for the Prohibition of Nuclear Weapons in Latin America (Tlatelolco Treaty), adopted in 1967,
entered into force in 1968: under the Treaty, the states parties agree to prohibit and prevent the
“testing, use, manufacture, production or acquisition by any means whatsoever of any nuclear
weapons” and the “receipt, storage, installation, deployment and any form of possession of any nuclear
weapons”. 20 There are two additional protocols to the Treaty: Protocol I binds those overseas countries
with territories in the region (the United States, the United Kingdom, France, and the Netherlands) to
the terms of the Treaty. Protocol II requires the world's declared nuclear weapons states to refrain from
undermining in any way the nuclear-free status of the region.
South Pacific Nuclear Free Zone Treaty (Rarotonga Treaty), adopted in 1985, entered into force 1986:
the treaty formalizes a nuclear-weapon- free zone in the South Pacific. 21 It bans the use, testing, and
possession of nuclear weapons within the borders of the zone. There are three protocols to the Treaty:
(1) no manufacture, stationing or testing in their territories within the Zone; (2) no use against the
Parties to the Treaty, or against territories where Protocol 1 is in force, and (3) no testing within the
Zone.
Southeast Asian Nuclear Weapon Free Zone Treaty (Treaty of Bangkok), adopted in 1995, entered into
force in 1997: the treaty obliges its State parties not to develop, manufacture or otherwise acquire,
possess or have control over nuclear weapons. 22 It includes a protocol that is open to signature by the
five recognized nuclear-weapon states: China, France, Russia, the United Kingdom, and the United
States. The protocol commits those states not to contribute to any violation of the treaty and not to use
or threaten to use nuclear weapons within the zone.
African Nuclear Weapon Free Zone Treaty (Treaty of Pelindaba), adopted in 1996, entered into force
in 2009: the treaty prohibits the research, development, manufacture, stockpiling, acquisition, testing,
possession, control or stationing of nuclear explosive devices in the territory of parties to the Treaty
and the dumping of radioactive wastes in the African zone by Treaty parties. 23 It also prohibits any
attack against nuclear installations in the zone by Treaty parties and requires them to maintain the
highest standards of physical protection of nuclear material, facilities and equipment, which are to be
used exclusively for peaceful purposes. The instrument has three Protocols.
Treaty on a Nuclear-Weapon-Free Zone in Central Asia (CANWFZ), signed at Semipalatinsk,

Kazakhstan in 2006, entered into force in 2009, with the Government of Kyrgyzstan acting as the
treaty depositary: this instrument establishes a nuclear-weapon- free zone in Central Asia and
represents a legally binding commitment by all five countries of the region, i.e., Kazakhstan,
Kyrgyzstan, Tajikistan, Turkmenistan, and Uzbekistan not to manufacture, acquire, test, or possess
20
Treaty for the Prohib ition of Nuclear Weapons in Lat in A merica and the Caribbean, opened for signature 14 Februa ry
1967, entered into force 22 April 1968, full text available at http://disarmament.un.org/treaties/t/tlatelolco/text . Accessed
30 April 2019.
21
South Pacific Nuclear Free Zone Treaty, signed 6 August 1985, entered into force 11 December 1986, fu ll text available
at http://disarmament.un.org/treaties/t/rarotonga/text . Accessed 30 April 2019.
22
Treaty on the Southeast Asia Nuclear Weapon-Free Zone, opened for signature 8 September 2006, entered into force 21
March 2009, full text available at http://disarmament.un.org/treaties/t/canwfz/text . Accessed 30 April 2019.
23
African Nuclear Weapon Free Zone Treaty, signed at Cairo 11 April 1996, entered into force 15 Ju ly 2009, full text
available at http://disarmament.un.org/treaties/t/pelindaba/text . Accessed 30 April 2019.
nuclear weapons. 24 The treaty was adopted at a symbolic former nuclear Test Site of Semipalatinsk in
Kazakhstan; it is also known as the Treaty of Semipalatinsk (or Treaty of Semey). All five states of
Central Asia have ratified the instrument.
While the existence of these important instruments shows that effectively all the geographical regions
of the world are covered by several active non-proliferation regimes a case- law concerning nuclear
weapons is, by contrast, non-existent which is, of course, explained by the fortuna te fact that there has
been only one recourse to an actual employment of nuclear weapons in human history. The only
exception is the famous ruling by the United Nations’ main international judicial body.
27.3.3 Advisory Opinion of the Inte rnational Court of Justice
In July 1996, in response to a 1994 request from the United Nations General Assembly, 25 the
International Court of Justice (ICJ) handed down an Advisory Opinion on the Legality of the Threat or
Use of Nuclear Weapons 26 – the most authoritative (although somewhat controversial) judicial
interpretation of the issue to date. The Court's findings can be summarised as follows:
1. A threat or use of force by means of nuclear weapons in violation of Articles 2(4) [prohibition of the
threat or use of force] and 51 [the right of individual or collective self-defence] of the UN Charter is,
as such, unlawful; 27
2. Nuclear weapons should not be equated with chemical or biological weapons, which are prohibited
by relevant treaties. These treaties do not contain any specific prohibition of recourse to nuclear
weapons;
3. The treaties regulating the acquisition, manufacture and possession of nuclear weapons might
suggest that a comprehensive prohibition of the use of nuclear weapons might be feasible in the future
but these treaties do not currently constitute such a prohibition by themselves;
4. 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 international
humanitarian law, as well as with specific obligations under treaties and other undertakings which
expressly deal with nuclear weapons;
5. Since ensuring the compatibility of a threat or use of nuclear weapons with international
humanitarian law would be hardly feasible as a matter of practice, such threat or use would generally
be contrary to the rules of international law applicable in armed conflict, and in particular the
principles and rules of humanitarian law; 28
6. Finally, the Court acknowledged that there existed an obligation for States to pursue in good faith
and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and
effective international control.
This judicial decision currently represents the most authoritative and referential legal opinion on the
24
Treaty on a Nuclear-Weapon-Free Zone in Central Asia, opened for signature and signed 8 September 2006, entered into
force 21 March 2009, fu ll text available at http://disarmament.un.org/treaties/t/canwfz/text . Accessed 30 April 2019.
25
The ICJ d isregarded an analogous request from the World Health Organisation (WHO), having ruled that the WHO had
acted ultra vires in submitting the request.
26
ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, I.C.J. Reports 1996 (Nuclear
Weapons Advisory Opinion).
27
Nuclear Weapons Advisory Opinion, para. 105(2)(C).
28
The President of the International Co mmittee of the Red Cross (ICRC) Peter Maurer has highlighted the relevance of
international humanitarian law with regard to nuclear weapons in his statement at
http://www.icrc.o rg/eng/resources/documents/statement/2013/13-03-04-nuclear-weapons.htm . Accessed 30 April 2019.
matter to date. 29 It represents a first decision by an international tribunal that has unequivocally and
clearly formulated limitations on nuclear weapons; it declared that nuclear weapons are subject to the
requirements of the UN Charter as well as international law applicable to armed conflicts. 30 Moreover,
the Court has reaffirmed the celebrated Martens’ Clause concluding that the rules of humanitarian law
were applicable to the threat or use of nuclear weapons because of the intrinsically humanitarian
character of these rules which is applicable to all forms and types of warfare and weapons. 31
However, it was not uncontroversial. Several expectations from the Court’s Advisory Opinion have
not been lived up to by the ICJ. First, the Opinion did not elaborate in detail on the jus cogens nature
of humanitarian law as was hoped by international community. The judges opted to confine
themselves to the conclusion that since the question of the character of humanitarian law which would
apply to the use of nuclear weapons had not been raised in the General Assembly’s request there was
no need for the Court to pronounce on this matter. 32
Second, the Court was further criticized for its eventual inability to definitively conclude whether the
threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-
defence when the very survival of the State would be at stake. 33 Some believe that the Court should
have concluded that ANY use of nuclear weapons is unlawful under international law, in particular
under jus in bello. 34 One possible explanation could be that the Court was reluctant to “make new law”
and pronounce it in an area which concerns the vital interests of some powerful, nuclear weapon-
possessing States, choosing to stay cautious and politically pragmatic in its Opinion’s reasoning. 35 In
any case, no matter how prudent the Court turned out to act in this particular case, the perception of
many progressive observers was that it failed to exploit this great opportunity to clarify applicable
international law with respect to the most destructive type of modern weapons.
This, of course, does not undermine the significance of the impact this decision has had on the
development of several important branches of international law – from international humanitarian law
to international human rights law to international environmental law. Certainly, the measure with
which to assess that impact should not be determined by the number of those branches – or by the
quantity of the Court’s opinions affecting them, for that matter. 36 It has to be the quality and
persuasiveness of its statements in those opinions as well as of its reflections dealing with international
law. In case of nuclear weapons, the Court’s pronouncements are persuas ive albeit still controversial.
27.4 Nuclear weapons and relevant specific rules and principles of international law
This section considers various areas of international law that deal with the use of nuclear weapons and
briefly analyses the pertaining legal principles and rules as to their application to this category of
weapons. It is important because their use involves or calls into question simultaneously multiple sets
of rules and differing regimes of law. Some of them concern a direct use of nuclear weapons (jus ad
29
For a useful analysis of various substantive aspects of the Advisory Opinion as well as its impact see the following legal
works and pieces: Davis and Purcell 2006, pp. 109-112; Mo xley Jr. et al. 2011, pp. 637-642; Nystuen et al. 2014, pp. 24-
27, 32-50, 68-73, 136-140 and others; Shaw 2008, pp. 1112, 1303-1308.
30
Aljaghoub 2006, p. 197.
31
Nuclear Weapons Advisory Opinion, p. 259, para. 85; Aljaghoub 2006, p. 196. See also further belo w in subsect. 27.4.2.
32
Nuclear Weapons Advisory Opinion, p. 258, para. 83.
33
Ibid., p. 266, para. 105(2)(E).
34
Aljaghoub 2006, p. 198.
35
Ibid.
36
Ibid., p.200.
bellum, jus in bello) while others look closer at how such use might entail an individual criminal
responsibility as a type of a crime under international law (international criminal law) or may affect
people’s rights and freedoms (international human rights law).
27.4.1 Jus ad bellum
As nuclear weapons represent the most destructive type of weapons invented by mankind to date, it
seems only logical that the matter of prohibiting or regulating their use must fall, first of all, under the
ambit of jus ad bellum, the body of law dealing with the lawfulness of use of force. 37 This includes the
classical example of employing those weapons by states in self-defense against other states. Modern
jus ad bellum limits the use of force in self-defense only to the situations in which an armed attack
took place as established by the United Nations Charter. 38 The key principles of the law on the use of
force which concern using nuclear weapons in self-defense are the principle of necessity and principle
of proportionality. 39
One might think that because of their indiscriminate nature the use of nuclear weapons can be neither
necessary nor proportionate 40 hence rendering the discussion of the two principles irrelevant. But the
situation is more complicated than that. This is due to the character of jus ad bellum – this corpus of
law does not mention any types of weapons specifically, i.e., it is weapon-neutral, as well as to the fact
that it does not contain an absolute prohibition of the use of force; it does authorize some limited force
in the situations of self-defense provided that the necessary conditions are met. 41 Thus, whether the use
of these weapons may be considered lawful under international law or not depends on the concrete
circumstances and respect for the two above-said principles. 42
According to Hayashi, the requirement to respect both principles of necessity and proportionality ad
bellum in ANY use of force in self-defense nowadays appears uncontroversial. 43 However, the
problematic aspects with applying the two principles include, inter alia, ambiguities related to their
assessment (content, timing, duration) and separation between the two. 44 The commentators agree on
few basic uncontroversial ideas; those include the requirement that self-defense must not be retaliatory
and/or punitive and that the main aim of self-defense should be to halt and repel an attack. 45
37
For the discussion of legal regulation of the use of force, see Chapter 16.
38
Charter of the Un ited Nations, opened for signature 26 June 1945, 1 U.N.T.S. XVI (entered into force 24 October 1945),
art. 51. The article states: “Nothing in the present Charter shall impair the inherent right of individual or collective self -
defence if an armed attack occurs against a Member of the United Nat ions, until the Security Council has taken measures
necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self -
defence shall be immed iately reported to the Security Council and shall not in any way affect the authority and
responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in
order to maintain or restore international peace and security.” According to the interpretations in the relevant jurisprudence,
the concept of “armed attack” as imp lied in the Charter includes the considerations of scale and effects but not the specific
types of weapons used in the attack. See Nystuen et al. 2014, p. 16.
39
Not to confuse with the principles of military necessity and proportionality that belong to the main principles of LoAC,
i.e., law of armed conflict. Those are considered in the next subsection, within the context of jus in bello.
40
Nystuen et al. 2014, p. 15.
41
Ibid.; Nuclear Weapons Advisory Opinion, para. 41.
42
43
Ibid., p. 17, citing Nuclear Weapons Advisory Opinion, para. 41, ICJ, Case Concerning Military and Paramilitary
Activities in and against Nicaragua, Judgment of 27 June 1986, para. 195 (Nicaragua Case), and other relevant ICJ case-
law.
44
According to Greenwood and Hayashi, these difficu lties mirror even larger d ifferences with regard to jus ad bellum’s
temporal scope of application. Greenwood 1983, pp. 221-234; Nystuen et al. 2014, p. 17.
45
Gray 2008, p. 150; Green 2009, p. 89, both also cited in Nystuen et al. 2014, p. 17.
The principle of necessity in jus ad bellum denotes the requirement that there must be no reasonable
alternative to using force. 46 Generally, it means that the law on the use of force, via its principle of
necessity, concerns the circumstances in which the state exercising its right to self-defense may
lawfully use force. 47 It is safe to maintain that necessity requires the defending state to use force only
as a means of last resort. 48
As for the proportionality, this principle may be summarized – in a twofold format – as follows:49
first, the force used in self-defense should be assessed in light of the fulfillment of defensive purposes,
and second, the quantum of the former should not be obviously excessive, rather than strictly
proportionate, vis-à-vis the latter. 50 Leaving aside a detailed discussion of the nature of the variables
compared in the proportionality test and temporal scope of assessment, 51 this author concurs with
Hayashi and other experts that the principle of proportionality in jus ad bellum must be subject to
constant assessment 52 – as opposed to a fixed moment or retroactive assessment 53 (this is because the
circumstances of self-defense may fluctuate from moderate to extreme, and hence the response to
those fluctuations MUST be as much proportionate and reasonable as possible).
Now, applying these principles to the use of force by means of nuclear weapons, one may want to
consult the Advisory Opinion of the ICJ for any guidance. As the reader recalls, the Court
unanimously held that “a threat or use of force by means of nuclear weapons … that fails to meet all
the requirements of Article 51 [of the UN Charter] is unlawful.” 54 She/he might also remember that the
ICJ was unable to definitively conclude whether the threat or use of nuclear weapons would be lawful
or unlawful in an extreme circumstance of self-defence when the very survival of the State would be at
stake. However, aside from this principal matter, the Court has also, unfortunately, not dwelled much
on the principles of necessity and proportionality. The first one is noted in the Opinion only once, and
very briefly at that. 55 Regarding proportionality, the Court concluded that the principle of
proportionality may not in itself exclude the use of nuclear weapons in self-defense in all
circumstances. 56
Thus, the Advisory Opinion does not bring much clarity in terms of how these principles relate to the
use of nuclear weapons, in particular, to the notion of necessity and proportionality having a weapon-
neutral nature as well as to the idea that the peculiarities of nuclear weapons are relevant for the jus ad
bellum only incidentally. 57 A more preferable (as well as humanitarian and realistic) stance, however,
would be that those peculiarities have to be taken into account in analyzing the appropriateness of
using nuclear weapons. 58
46
Nystuen et al. 2014, pp. 17-18.
47
Ibid., p. 17.
48
For a detailed analysis of the problematic issues related to the ap plication of the principle of necessity in jus ad bellum
such as, e.g., imminence of attack, immed iacy of force, and others, see Ibid., pp. 18 -21.
49
This is with the understanding that such a summarizat ion is rather simp lified for reasons of space.
50
51
See Ib id., pp. 21-24, for such discussion.
52
Ibid., p. 24; Gardam 1993, p. 404; Gardam 1999, pp. 280 -281; Gardam 2004, pp. 167-168; Gazzini 2005, p. 147.
53
Dinstein 2011, p. 262.
54
Nuclear Weapons Advisory Opinion, para. 105(2)(C).
55
Ibid., para. 41.
56
Ibid., paras. 42-43.
57
58
See Ibid., pp. 25-30, for a mo re detailed discussion of this position including such issues as “double necessity”, extreme
circu mstance of self-defense, assurances of non-use and others.
It may be – disappointingly – concluded that due to the very nature of the existing jus ad bellum the
prospect of comprehensively outlawing the use 59 of nuclear weapons appears rather limited; the
reasons for this being, as suggested by Hayashi, the fact that this corpus of law concerns itself with the
function of force rather than its form as well as that the possibility of nuclear weapons being used in
compliance with the principles of necessity and proportionality cannot be completely ruled out under
all possible foreseeable circumstances. 60 At this point, the question could be: does the situation differ
with another body of law also concerning this matter, i.e., jus in bello (LoAC)?
27.4.2 Jus in bello
Another body of law directly relevant to the issue of the use of nuclear weapons is jus in bello, or the
law of armed conflict (LoAC), also often referred to as international humanitarian law (IHL). 61 It may
be defined as a set of rules which seek for humanitarian reasons to limit the negative effects of armed
conflict – as formulated by the International Committee of the Red Cross (ICRC). 62 Among the most
pertaining principles of IHL here would be the principles governing the conduct of hostilities:
principles of distinction, proportionality as well as the principle of humanity. 63
The first principle, distinction, may be simply expressed as follows: combatants must distinguish
between military objectives and the civilian population, and attack only military objectives. 64 It carries
a customary legal nature and is applicable in both types of armed conflicts – international (IAC) and
non- international (NIAC) conflicts. 65 It is also argued that the principle of distinction represents a jus
cogens norm from which no derogation is permitted. 66
The principle of distinction governs all attacks in armed conflict – offensive and defensive alike.67
Necessity to respect IHL logically implies that, as proposed by Casey-Maslen, any weapon which is
incapable of distinguishing between civilian and military targets will be unlawful. 68 The ICJ affirmed
the principle of distinction as one of the fundamental rules which must be observed by all states
whether or not they have ratified the conventions that contain them because they constitute
59
Again, it must be kept in mind that the brief d iscussion here does not includ e the issue of the lawfulness of the threat of
use of nuclear weapons under the existing regime o f jus ad bellum.
60
Ibid., p. 30.
61
For a review of IHL in this volu me, see Chapter 22.
62
For a useful working definition of IHL see ICRC 2013, p. 13, available at:
https://www.icrc.org/eng/assets/files/publications/icrc-002-4028.pdf. Accessed 30 April 2019.
63
See for a discussion of the role and interaction of the fundamental princip les and rules of IHL Nystuen et al. 2014, pp.
89-147; passim Larsen et al. 2013; Atadjanov 2019. For reasons of space, the discussion of some other applicable
principles and issues is omitted in this chapter (e.g., unnecessary suffering, precautions in attack, reprisals under IHL,
threat of use of nuclear weapons under IHL). For a useful review of those, see in general Nystuen et al. 2014, pp. 91-190.
64
Additional Protocol I to the Geneva Conventions of 1949 establishes an official formu lation of this cornerstone principle
under the heading of “Basic rule”: “In order to ensure respect for and protection of the civilian population and civilian
objects, the Parties to the conflict shall at all times distinguish between the civilian popu lation and combatants and between
civilian objects and military objectives and accordingly shall direct their operations only against military objectives. ”
Protocol I Additional to the Geneva Conventions of 12 August 1949 and Relat ing to the Protection of Victims of
International Armed Conflicts, opened for signature 12 December 1977, 1125 U.N.T.S. 3-434 (entered into force 7
December 1978), art. 48 (Additional Protocol I).
65
Nystuen et al. 2014, pp. 95-96, citing mu ltiple sources indicating towards the cus tomary nature of the princip le as well as
its applicability in both IAC and NIAC.
66
Ibid., p. 96.
67
Additional Protocol I, art. 49(1).
68
Nystuen et al. 2014, pp. 96-97.
intransgressible principles of international customary law. 69 While it appears that the customary law
nature of the prohibition of inherently indiscriminate weapons is not challenged today, this is
apparently not the case for its overall scope and especially its specific application to concrete types of
weapons. 70
The issue of uncontrolled effects of the weapons is critical when trying to apply the principle of
distinction to nuclear weapons. 71 Briefly, it is difficult to see how the effects of (most) nuclear
weapons can be said to be controllable. 72 It was clearly stated by the ICJ that “[t]he destructive power
of nuclear weapons cannot be contained in either space or time.” 73 Despite the ICJ’s pronouncement,
the legal opinions as well as state practice rather diverged on this matter. 74 This author is of the
opinion that the uncontrollable (i.e., indiscriminate) effects should form an integral part of the
distinction test which flows out from a prohibition (of the use of weapons with indiscriminate effects)
that constitutes a jus cogens principle. 75 Those effects are just too unpredictable, with powerful
radiation waves and subsequent fall-out after the explosions (peculiar to precisely this type of
weapons) prone to any air movement and capable of affecting much wider areas than the initial impact
point. 76 Hence any statement sustaining that nuclear weapons must not be considered as inherently
indiscriminate weapons and that they can be fired with high degree accuracy will not appear credible
enough.
Concerning the principle of proportionality, it may be defined as follows: in attacking military

objectives, combatants must take measures to avoid or minimize collateral civilian damage and refrain
from attacks that would cause excessive civilian damage. 77 This principle was invoked by multiple
states in their assessments of whether an attack with the use of nuclear weapons would violate IHL. 78
The ICJ itself affirmed the applicability of the principle of proportionality to nuclear weapons. 79 What
is unfortunate, though, is the fact that in its Advisory Opinion the Court does not discuss how the
principle of proportionality in attacks applies to the use of nuclear weapons at all. 80
Two points are to be noted. One is related to the difference between military and civilian objectives
and another to the difference between jus ad bellum and jus in bello. For the first one, as correctly
observed by Dinstein, proportionality has nothing to do with injury to combatants or damage to
69
Nuclear Weapons Advisory Opinion, para. 79.
70
71
Ibid., p. 104.
72
Ibid., p. 112; affirmed in Nuclear Weapons Advisory Opinion, para. 35.
73
74
Nystuen et al. 2014, pp. 109-110, using as evidence of relevant state practice the official US and UK statements to the
effect that nuclear weapons are not inherently indiscriminate and contrasting them with the statements issued by France and
Russia.
75
See also the Separate Opinion of the ICJ President Mohammed Bedjaoui, Nuclear Weapons Advisory Opinion, para. 21.
76
For a description of some of those effects, see BBC, “Neutron bomb: why ‘clean’ is deadly”, 15 Ju ly 1999, availab le at
http://news.bbc.co.uk/2/hi/science/nature/395689.stm Accessed 30 April 2019.
77
See passim Larsen et al. 2013; also Atadjanov 2019. The princip le of p roportionality in attack is codified in the
Additional Protocol I as follows: “... A mong others, the following types of attacks are to be considered as indiscriminate: ...
an attack wh ich may be expected to cause incidental loss of civilian life, in jury to civilians, damage to civilian ob jects, o r a
combination thereof, which would be excessive in relat ion to the concrete and direct military advantage anticipated. ...”
Additional Protocol I, art. 51(5)(b). It is repeated almost verbatim in the Protocol’s article 57(2)(a)(iii), in the context of
precautions to be taken in attack.
78
In their submissions to the ICJ in the Nuclear Weapons Case, see Henckaerts and Doswald -Beck 2005, p. 48.
79
80
This is all the more so surprising as the issue was raised by several states in their statements to the ICJ. See Nystuen et al.
2014, p. 117.
military objectives. 81 This is because even where a lawful military objective is targeted by a party to an
armed conflict, such an attack may still be unlawful – if it causes incidental civilian deaths, injuries,
entails destruction or damage to civilian objects, or a combination of both which are excessive when
compared to the anticipated military advantage. 82 The second point involves the political problem
noted in the introduction to this chapter, and it consists in the following: it is irre levant for the
purposes of IHL that a use of nuclear weapons, as noted by Casey-Maslen, by one party to a conflict
may quickly lead to an escalation in the use of those weapons. 83 That is definitely a crucial political as
well as moral consideration; it pertains to jus ad bellum since it constitutes an element in determining
proportionality under that legal regime. However, it is not a strictly legal consideration which could be
relevant for jus in bello. 84
The question to be answered as concerns the applicability of the proportionality principle to the use of
nuclear weapons would be: are nuclear weapons inherently disproportionate in the harm they cause to
civilians and thus violate the principle of proportionality? A realistic stance dictates that while there is
a strong temptation to count nukes as inherently disproportionate as it is the case for their
indiscriminate nature it would be more appropriate to sustain that that is not the case. This is because
there are some types of nuclear weapons which represent low-yield weapons and there are some
circumstances – albeit truly exceptional, where their use would not be deemed absolutely
disproportionate.
It has been argued that “it is no longer the case that use of nuclear weapons would necessarily result in
the horrendous human suffering and physical damage caused by the US attacks in 1945. …, use of
small- yield tactical nuclear weapons in particular circumstances might result in minimal civilian
losses.”85 But: as concluded by Casey-Maslen, only low- yield tactical nukes could realistically be used
in accordance with the rule of proportionality 86 and then only in very specific and highly improbable
(read: exceptional) situations in an IAC between nuclear powers. 87 In any case, it is difficult to argue
against ICJ’s well-known statement that any 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.”88
Finally, out of those principles and rules, the principle of humanity must be noted. Indeed, the
inhumane and indiscriminate nature of nuclear weapons as well as the immense negative humanitarian
consequences their usage causes entail the question of such weapons violating the very principle of
humanity whose core, or the so-called humanitarian considerations, lies at the heart of all other key
principles constituting the cornerstone of IHL’s content.
The principle of humanity may be defined as follows: “the requirement that each and every individual
must be treated humanely and with respect under all circumstances, out of humanitarian considerations
and fundamental standards of humanity.” 89 This definition relies on the concept of humaneness
81
Dinstein 2010, p. 129.
82
83
See Ib id.
84
Ibid. For a deserving analysis of the issue of nuclear weapons and separation between these two bodies of law, see Ib id.,
pp. 59-88.
85
Ibid., pp. 125-126.
86
He also believes that these weapons cannot be deemed inherently indiscriminate but on this point I disagree, see above.
87
Nystuen et al. 2014, p. 126. A lawfu l use in NIA C is even harder to imagine.
88
89
See passim Atadjanov 2019.
understood as a sentiment of active good will towards mankind, via the inclusion of “humanitarian
considerations”. The concept of humaneness lies at the core of those considerations which inform the
key principles of humanitarian law, first of all, its principle of huma nity which in turn provides the
balancing basis for the other key principles of LoAC: principles of distinction and proportionality –
already considered above, military necessity, and prohibition of unnecessary suffering. 90
In all these principles, the influence and role of the humanitarian considerations derived from the
concept of humaneness can be more or less easily seen. But if the use of nuclear weapons is generally
contrary to the rules of international law applicable in armed conflict, in particular the principles of
humanitarian law, it means that it violates them including principles of distinction and proportionality,
at least in the vast majority of (potential) cases. If these principles are breached then, by extension,
their parent principle of humanity is necessarily in breach, too. Their inhumane effects make nukes
incompatible with humanity. A nuclear attack will not constitute a humane and respectful “treatment”
of the victims; it may not be caused out of humanitarian considerations and fundamental standards of
humanity. Indeed, it would be hard to imagine how ANY armed attack involving nuclear weapons
may be carried out of humanitarian considerations; it is precisely the reverse. Even if their use may not
be one hundred percent, or inherently, disproportionate (in some extremely rare cases), overall they
will mostly remain outside the “legality of IHL”, so to speak. In that, ICJ’s conclusion is outright
correct.
27.4.3 Inte rnational criminal law
Unlike the case with the preceding two subsections, this part will only partially rely on or discuss the
landmark Advisory Opinion of the International Court of Justice. This is related to the nature of the
material part of international criminal law (or ICL). ICL represents a functional branch of international
law which includes all legal norms that deal with individual criminal responsibility for crimes under
international law. 91 The material part of ICL consists of four so-called core crimes, i.e., crimes which
entail a direct individual responsibility for their commission: genocide, crimes against humanity, war
crimes and the crime of aggression. 92 The Nuclear Weapons Advisory Opinion almost nowhere
discusses the above crimes. 93 The issue of whether nuclear weapons use would qualify as one of the
core crimes was not addressed by the Court.
ICL is of relevance to this chapter because absent the outright express prohibition of the use of nuclear
weapons in international treaty and customary law as a matter of jus ad bellum or jus in bellum, it is
tempting to try to qualify their possible employment under the existing definitions of crimes under
international law and thus bring those responsible to account. Moreover, some of those crimes were
considered, at least by some states, as relevant for the purposes of legal qualification of the use of
nuclear weapons under international law. 94 This was the case for genocide, for example.
90
Ibid.
91
For a useful description of ICL see Chapter 34.
92
According to some other authorities, this list also includes torture and terroris m as individual crimes in their o wn
standing (not only as part of corpus delicti, or individual acts constituting some of the core crimes). See Cassese 2013, p. 3.
This chapter focuses on the first three core crimes – genocide, crimes against humanity and war crimes. The use of nuclear
weapons potentially qualify ing as a crime of aggression (which is clearly a relevant issue) is not considered as it would
constitute a voluminous discussion and is thus excluded here for reasons of space.
93
Except for genocide: it does mention genocide in one single paragraph but not with a view to arriving at the conclusion
that the use of nuclear weapons would amount to genocide. Nuclear Weapons Advisory Opinion, para. 26.
94
The modern definition of genocide is found in the Rome Statute of the ICC which is also reflective of
the customary legal nature of the prohibition of genocide in international law:
“For the purpose of this Statute, “genocide” means any of the following acts committed with intent
to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical
destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.” 95
Taking into account the specific elements of the crime, i.e., both its actus reus and mens rea, it can be
concluded that the use of nuclear weapons will not automatically or necessarily constitute the crime of
genocide. Indeed, according to the ICJ, it would be possible to arrive at the conclusion that the
prohibition of genocide applies to such use only if the requisite element of intent towards a group of
victims as such is present; at least, that is the impression when one reads its famous Advisory
Opinion. 96 In other words, it is not sufficient that the grave consequences of the employment of
nuclear weapons constitute or may constitute the acts expressed in points (a) to (c) of Rome Statute’s
article 6 – in order to qualify as the crime of genocide. The so-called contextual element of the crime
must be satisfied for that, i.e., the special intent (or dolus specialis) to destroy a national, etc., group as
such, in whole or in part. In that, the Court’s reasoning is correct. Therefore, as also correctly pointed
out by the main judicial body of the UN, in order to establish this element the specific circumstances
of each case should be taken into due account. 97 Also, a “simple” intent to kill is not enough; it must
be proven that the perpetrator intended to destroy a group. 98
With respect to crimes against humanity, this type of crimes under international law involves the
commission of inhuman acts including murder, torture, rape, persecution and other certa in acts which
constitute a part of widespread or systematic attack directed against civilian population. 99 Their
contemporary treaty definition is formulated in the Rome Statute as follows:
“ ... For the purpose of this Statute, “crime against humanity” means any of the following acts
when committed as part of a widespread or systematic attack directed against any civilian
population, with knowledge of the attack:
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules
of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any
other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic,
cultural, religious, gender as defined in paragraph 3, or other grounds that are universally
95
Ro me Statute of the International Criminal Court, opened for signature 17 Ju ly 1998, 2187 UNTS 90 (entered into force
1 Ju ly 2002) (Ro me Statute), art. 6.
96
97
Ibid.
98
Cassese 2013, p. 65; Nystuen et al. 2014, p. 197.
99
See also Cryer et al. 2010, p. 230.
recognized as impermissible under international law, in connection with any act referred to in this
paragraph or any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to
body or to mental or physical health. ...”100
Article 7 further contains in its paragraphs 2 and 3 the clarifications for different terms and elements of
the crimes, and for the individual acts constituting these crimes (“attack directed against any civilian
population”, “extermination”, “enslavement”, “deportation”, “torture”, “gender” and so on). 101 Crimes
against humanity are a popular subject of both legal and non- legal discussion. Their historical
development, practical application, material and mental elements, individual acts noted above, their
scope, role in ICL, pertinent jurisdiction and many other aspects have been analysed countless times.
Elements of crimes against humanity are well established in ICL. All the more surprising fact is that
their protective scope has not yet been holistically clarified in law or academia. In other words, the
exact meaning of what “humanity” means in the context of crimes against humanity is left unc lear. 102
After a brief preceding conclusion regarding genocide and use of nuclear weapons, a kin observation
springs to mind. It was noted that “many acts which do not constitute genocide will constitute crimes
against humanity”. 103 However, this should not automatically be assumed for each and every case. As
with the case of any potentially qualifying act, the so-called contextual element of these crimes should
be considered. The attack must be either “widespread” or “systematic” as flows out from the chapeau
of the definition in article 7. The first one of these characteristics is defined as encompassing the large
scale nature of the attack: it has to be massive, frequent, carried out collectively and directed against
multiple victims. 104 The second one denotes, in contrast, the organized nature of the acts of violence
and improbability of their random occurrence; it may often be expressed through patterns of crimes.105
Thus, like for any case involving the qualification of individual acts as crimes against humanity, in
case of the use of nuclear weapons a careful analysis should be undertaken, including the
establishment of the contextual element, i.e., it must be proven that the nuclear attack was either
widespread or systematic in nature. Helpful in such analysis may be to look at the relevant
international criminal case law where elements of crimes against humanity have been reviewed. 106
With respect to individual acts of crimes against humanity, or actus reus, i.e., criminal conduct, it may
be said that such acts as murder and extermination would be particularly relevant for a nuclear
attack. 107 According to Cassese, provided that all other conditions for a crime against humanity were
met (contextual element, mental element), a nuclear attack could be qualified as a crime against
humanity of extermination in cases involving, for example, use of a “dirty bomb” by a terrorist
100
Ro me Statute, art. 7(1).
101
See for a detailed discussion of those and other elements: Schabas 2010, pp. 137-187; Boot 2002, pp. 468-532; Cassese
et al. 2002, pp. 373-377; Triffterer 2008, p. 117.
102
This author provides his own academic response to this question in Atadjanov 2019, arguing that the protected interest
of crimes against humanity is the concept of humanness, or human st atus.
103
Cryer et al. 2010, p. 203.
104
Nystuen et al. 2014, p. 204, n. 59, citing the Third Report of the Independent International Co mmission of Inquiry on
the Syrian Arab Republic, UN Hu man Rights Council, UN Doc. A/HRC/ 21/ 50, 16 August 2012, pp. 49, para. 17.
105
Ibid., para. 18.
106
See, for examp le, Nystuen et al. 2014, pp. 201-205, referring to various cases before the International Criminal Tribunal
for the former Yugoslavia, International Criminal Tribunal for Ruanda and ICC.
107
Ibid., pp. 204-205.
organization or armed non-state actor if it is established that a particular population was targeted. 108
The mens rea element to be established would include a need to prove that the perpetrator knew that
his or her actions constitute part of a pattern of widespread or systematic attacks carried out against
civilian population; he or she must know that these acts fit into such a pattern. 109
The third category of crimes under international law – war crimes – is a distinct type of crimes in that
they must be connected to the context of armed conflict. They are properly defined as follows: a war
crime is a serious violation of IHL which entails direct individual criminal responsibility under
international law. 110 As it is discussed above, the use of nuclear weapons clearly violates as a
minimum some of the key principles of jus in bello (see subsect. 27.4.2.). It is only logical to ask the
question of could it qualify as a serious breach of IHL entailing individual criminal responsibility, i.e.,
war crime, at least in some cases.
The answer appears to be in the affirmative. As argued by Casey-Maslen, a number of possible uses of
a nuclear weapon would constitute a war crime. 111 He maintains – and it is difficult to disagree, that
such a conclusion may result from the characteristics of the weapon itself, in particular whether it is
deemed to be inherently indiscriminate (this chapter argues in favour of such a vision as the reader
recalls) or to be of a nature to cause superfluous injury or unnecessary suffering. 112 But even if those
two characteristics are not established, a particular case of a nuclear attack may still qualify as a war
crime. E.g., when the weapon is directed against the civilian population in which case it definitely
violates the principle of distinction, as reviewed in the preceding section, or when it is used
indiscriminately. 113 What remains to be said is that in the process of assessment the following two
crucial underlying conditions, or elements, have to be present – as in the case of any war crime: first,
the situation of armed conflict must be present be it international or non- international in nature, and
second, the pertaining conduct, in this case a nuclear attack or use of a nuclear weapon, must have a
sufficient connection to such an armed conflict in order to be deemed as falling under its ambit. 114
To summarise the foregoing brief overview, it may be safely stated that international law, in particular
ICL and ICSL, has by now developed sufficiently well in order to bring to liability those individuals
who may employ, or give orders to employ such deadly weapons as nuclear bombs and warheads.
Certainly, for each case a careful analysis of all relevant facts and circumstances will be required; as
this section demonstrated, not every use may necessarily rise to the level of a core crime (e.g.,
genocide). It has been confirmed by ICJ itself. This observation is important even if history does not
know of any other actual use of nukes in armed conflict since the 1945 Hiroshima and Nagasaki
bombings; this is because the future is uncertain. The risks of real use of nuclear weapons are present
judging by the constant number of nuclear weapon states and the unstable relationship between some
of those states. ICL regime thus provides avenues for imposing individual criminal responsibility for
potential perpetrators in cases of employment of nukes. As for the state responsibility, the next section
108
Ibid., p. 205; Cassese 2013, p.110.
109
Cassese 2013, p.115-116.
110
Werle and Jessberger 2014, p. 392, para. 1029; Cryer et al 2010, p. 267. ICC is applying in its work a long and
complicated definition established in the Ro me Statute's Article 8 which names a s war crimes the grave breaches of the
Geneva Conventions of 1949 and other serious violations of the laws and customs applicable in international armed
conflict as well as serious violations of the laws and customs applicable in non -international armed conflict, with the
ensuing detailed list of indiv idual acts constituting the crimes. Ro me Statute, art. 8.
111
See for a detailed discussion in this regard his analysis in Nystuen et al. 2014, pp. 205-210.
112
Ibid., pp. 128-147.
113
Ibid., p. 205.
114
Ibid. See for a more o r less detailed discussion of the use of nuclear weapons as prohibited means and methods of
warfare, Ibid., pp. 206-210.
contains relevant albeit brief argumentation in this regard.
27.4.4 Inte rnational human rights law
It would be contrary to logic to maintain that nuclear weapons use has implications only for use of
force- or armed conflict-regulating legal regimes (jus ad bellum, jus in bello) and/or is exclusively
linked to the commission of and responsibility for international crimes (ICL). There is no doubt that
international human rights law (or IHRL) 115 is clearly relevant for nuclear weapons and their use. 116 It
is rightly argued that the existence of international human rights enforcement mechanisms means that
the adverse effects of these weapons are directly justiciable ; it is impossible to consider nuclear
weapons without analysing their possible effects in the light of IHRL. 117
IHRL may be defined as a branch of public international law which sets forth the international legal
norms, rules and principles for the protection of human rights and fundamental freedoms of every
individual human being. 118 These norms, rules and principles establish the legally a cceptable and,
ideally, enforceable minimum standards of governmental conduct to protect the inherent human
dignity of human beings. 119
The relevance of this branch, so defined, to the present issue can be seen by referring to the fact that
IHRL applies, or continues to apply, during both peacetime and the time of armed conflict. 120
Although ICJ in its Advisory Opinion stated that essentially only IHL counts as concerns the use of
certain weapons 121 , it then appears to have reversed its conclusion in another case where it said that
both branches, i.e., IHRL and IHL (as lex specialis) will have to be taken into consideration. 122 What is
also important, in particular in terms of enforcing human rights violated in the case of nuclear attacks,
is that human rights treaty bodies have sometimes made a reference to IHL – as a means to assist in the
interpretation of human rights provisions, but this has alwa ys been done to reinforce human rights
protection, not to restrict it. 123 IHRL applies at all times and is therefore relevant to any use of nuclear
weapons as correctly concluded by Doswald-Beck. 124
As for the most relevant human rights and freedoms which will be affected by any nuclear attack or
any use of nuclear weapons, those include the following ones: the right to life, prohibition of inhuman
treatment, the right to a healthy environment, and the right to the highest attainable standard of
health. 125
The UN Human Rights Committee has made it c lear that “the designing, testing, manufacture,
115
See Chapter 21 for a description of IHRL within this volu me.
116
117
Ibid.
118
Condé 2004, p. 133.
119
Ibid., p. 134.
120
Ibid., p. 436; Doswald-Beck 2011, pp. 6-9. This is affirmed by the terms of hu man rights law treaties (with war and
states of emergency direct ly mentioned in them) as well as by the mult itude of various UN resolutions. Nystuen et al. 2014,
p. 436.
121
122
ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory , Advisory Opinion of 9
July 2004, para. 106.
123
Nystuen et al. 2014, p. 438; for mo re detail see Doswald-Beck 2011, pp. 109-117.
124
125
For a more co mp rehensive and detailed analysis of these rights as affected by nuclear weapons use, see Ibid., pp. 444-
456.
possession and deployment of nuclear weapons are among the greatest threats to the right to life which
confront mankind today.”126 While worthy of being lauded in general, this statement raises questions
with respect to some aspects, for example, the manufacturing, possession and testing of nuclear
weapons would not always or necessarily amount to a loss of life or even damage to health (if no
radioactivity is released, for example). 127 The Committee’s statement goes in line with the logic of the
Dissenting Opinion of ICJ Judge Weeramantry who, in quite a solemn manner, concludes that “[n]o
weapons ever invented in the long history of man’s inhumanity to man has so negatived the dignity
and worth of the human person as has the nuclear bomb”. 128 Earlier he makes a parallel between
dignity and life: “when a weapon has the potential to kill between one million and one billion people,
as the WHO has told the Court, human life becomes reduced to a level of worthlessness that totally
bellies human dignity as understood in any culture” [emphasis added]. 129
Concerning the prohibition of inhuman treatment, nuclear weapons’ effects on survivors (of initial
blast(-s)) are significant. As is well known, they cause especially extreme suffering for their victims.
As described by Doswald-Beck, such effects may include blindness for the people from seeing the first
blast, horrific burns – for those not killed instantly, and/or terribly painful effects of radiation
poisoning, damage to the thyroid gland, later development of cancers and other serious long-term
effects. 130 Inhuman treatment is defined as that which causes severe suffering, mental or physical,
which is unjustifiable, in the particular situation, and which attains a minimum level of severity. 131 The
assessment will depend on the circumstances of the case such as the duration of the treatment and the
victim’s situation. 132 The effects of nuclear weapons use are so monstrous, much worse than those of
conventional weapons, that it would be difficult to imagine any human rights treaty body which
considers that their use was sufficiently justified to prevent a finding of inhuman treatment. 133
With respect to the right to a healthy environment, the ICJ very clearly and succinctly emphasized the
effects of nuclear weapons on the environment: “they have the potential to destroy ... the entire
ecosystem of the planet. ...”134 According to Doswald-Beck, this right is perfectly justiciable; human
rights bodies specify that economic, social and cultural rights create at least two directly relevant
obligations on states: the first is the duty to respect rights (i.e., not to take measures depriving people
of their resources) and the second is to protect rights, by adopting measures to protect persons from
deprivation of their resources. 135 Thus, a detonation of a nuclear weapon by a state would definitely
amount to a violation of these two duties. 136
Finally, as concerns the last human right, the right to the highest attainable standard of health, it must
be noted that what is of relevance here is the damage afflicted upon the natural environment by the
radiation which then negatively affects human health in the long-term. The actual use of nuclear
126
HRCte, General Co mment 14 on art. 6 ICCPR, 9 November 1984, para. 4. The Co mmittee concluded that the
deployment and use of nuclear weapons must be prohibited and recognized as crimes against humanity. Ibid., para. 6.
127
128
Nuclear Weapons Advisory Opinion, Dissenting Opinion of Judge Weeramantry, Section III.10.(f).
129
Ibid.
130
131
Ibid., para. 453, citing relevant case-law of the European Co mmission on Hu man Rights and European Court of Hu man
Rights.
132
It is also worthy of note that inhuman treatment here is not limited only to the persons in detention. Ibid.
133
Ibid., p. 454.
134
135
Those human rights bodies include in particu lar the UN Hu man Rights Co mmittee. Nystuen et al. 2014, pp. 454-455,
referring to the pertaining co mmentary.
136
Ibid., p. 455.
weapons would result in the release of substances evidently harmful to human health; the disruption of
medical services will be much worse than in the case of conventional weapons use; emergency
response capacities and any aid whatsoever will become much more difficult to provide, with more
destruction, death and harm within those services themselves. 137 Under such circumstances, it would
be hardly possible to maintain that the right to the high/highest attainable standard of health is not
breached by nuclear weapons attack.
27.5 Conclusion
The foregoing brief overview has demonstrated that the issue of nuclear weapons, the effects of their
use as well as the related legal aspects are too broad and complex to be comprehensively tackled in
one short chapter. Correspondingly, the chapter focused on the most relevant points and principles the
author deemed suitable for the textbook of this format. In order to provide as clear initial picture as
possible those points encompassed the description of not only the most pertinent or authoritative treaty
regimes and case- law but also of applicable rules and/or principles of international law which
constitute important integral parts of ICSL.
Despite the absence of a universal and unequivocal prohibition of the use of nuclear weapons in
international law, it becomes clear that there are at least several well-established legal principles that
will be called upon when deciding on the legality or compatibility of such use with the law. While they
cannot be considered as outlawing a nuclear attack they at least will carry out a restraining function
limiting for the potential attacker a space in which that use may be justified as lawful. This first of all
concerns the principles of distinction and proportionality in IHL. Moreover, it is hoped that existing
types of legal responsibility under international law, both individual and state, would serve as deterrent
for potential abusers. At least, there do exist possibilities for international adjudication of nuclear
attacks which may fall under the category of crimes under international law – provided that their actus
reus and mens rea satisfy all the necessary preconditions or elements of crimes (e.g., crimes against
humanity and war crimes), as well as judicial enforcement of different rights violated by the use of
nuclear weapons.
However, the existing applicable legal rules in no way can protect or act as safeguards against a
unilateral use of force involving nuclear weapons. The absence of holistic prohibition of such use
remains, unfortunately, a long-standing legal gap in modern international law. The general
pronouncements in the ICJ’s Advisory Opinion do not fill in this gap – even if it (i.e., the Opinion) is
widely regarded as important and authoritative.
Moreover, there are still arguments – both legal and non- legal, against a universal prohibition of nukes
coming from various actors, first of all, states whic h oppose a total legal prohibition and are
themselves in possession of nuclear weapons. Such arguments include the following ones: a
prohibition of nuclear weapons, in and of itself, will not improve international security; a nuclear ban
would be ineffective but can negatively impact or limit the NATO-members nuclear weapons-related
policies; the process to ban nuclear weapons is divisive and it is not based on genuine consensus; a
legal prohibition of nuclear weapons is no substitute for actual weapons red uction; the pursuit of a
nuclear weapons ban undermines the Nuclear Non-Proliferation Treaty (NPT), and, finally, a
“progressive and pragmatic” approach to nuclear disarmament is better than efforts to impose a
comprehensive ban. 138
137
Ibid., p. 456.
138
Cesar Jaramillo, “Six deceptive arguments against a nuclear weapons ban”, 31 March 2017, availab le at
All these arguments are relatively easy to dispel with; they do not withstand a careful and close
scrutiny. For example, there is never a perfect time to seek nuclear disarmament, or, for that matter,
world peace, end of hunger, etc; no one is advocating or would advocate for the ban in isolation from
global concerns including security. 139 In fact, the whole purpose of promoting the abolition IS to
ensure international peace and security. Or, contrary to what is said above about NPT, the negotiations
on the total ban represent the ultimate actual implementation of the treaty, in logic with the leading
case-law on the subject. 140 Indeed, it was the ICJ which highlighted the fact that the NPT requires
states not only to engage in good faith negotiations for nuclear disarmament but also to conclude them
(the so-called twofold obligation). 141
But perhaps even more importantly than that, there are considerations which if thought through
profoundly and taken really seriously demonstrate that the task of complete abolition is crucial. The
first one is “humanitarian case”: the universal abolition and elimination of nuclear weapons is an
urgent humanitarian necessity as it is the only one hundred percent guarantee against the catastrophic
consequences of their use, and suffering and death they entail as well as the impossibility of any
effective humanitarian response. 142 The second is the “security case” already partly delineated above.
Nuclear weapons pose a direct and constant threat to people everywhere; while it is clear that they
only cause national and global insecurity some nations still cling to the misguided idea of “nuclear
deterrence”. 143 The third one is the “environmental case”. According to it, nuclear weapons are the
only devices invented so far which have the capability to destroy all complex forms of life on Earth; it
would take only less than 0.1% of the explosive yield of the current global nuclear arsenal to bring
about devastating agricultural collapse and widespread famine. 144 Finally, there is the “economic case”
which is also very simple: nuclear weapons programmes (often consuming tens of billions of dollars)
divert public funds from health care, education, disaster relief and other vital services. 145
As noted in the introduction to this chapter, the use of nuclear weapons raises several critical
questions. The third category of those questions is philosophical in nature as reader recalls. To
conclude this chapter, it appears appropriate to remember this philosophical aspect once again and ask
ourselves a question: can we as collectivity of human beings, i.e., humankind, continue claiming that
we represent the most developed and complex life form on Earth, with unique ability to reason, if we
know only one natural way of procreation but invented myriads of means and methods to end life,
often in the most gruesome and inhumane manner?.. And the danger of actual use of nuclear weapons,
so far the most destructive type out of those means, has not diminished despite the end of the Cold
War, but remains as topical as before. What does it all say about us?
That is why, out of sheer necessity, the four considerations described above must all incessantly drive
the process of total uncompromising prohibition and abolition of nuclear weapons everywhere on the
planet if the mankind is to survive as species on our Pale Blue Dot.
https://www.opencanada.org/features/six-deceptive-argu ments-against-nuclear-weapons-ban/ Accessed 30 April 2019.

139
Ibid., p. 3.
140
Ibid., p. 5.
141
Nuclear Weapons Advisory Opinion, paras. 99-100.
142
ICAN, “Argu ments for nuclear abolit ion”, available at http://www.icanw.org/why-a-ban/arguments-for-a-ban/ Accessed
30 April 2019.
143
Ibid.
144
Ibid.
145
Ibid.
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Nuclear Weapons

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Chapter 27

27.2 What is a nuclear weapon?

27.3 Existing international legal frame work

27.3.1 Use of nuclear weapons

27.3.2 Non-proliferation of nuclear weapons

Universal regime (not limited to a particular area or geographical region)

Treaty on the Non-Proliferation of Nuclear Weapons (Nuclear Non-Proliferation Treaty, or NPT),

Regional nuclear weapon free zones

Treaty on a Nuclear-Weapon-Free Zone in Central Asia (CANWFZ), signed at Semipalatinsk,

27.3.3 Advisory Opinion of the Inte rnational Court of Justice

27.4.1 Jus ad bellum

27.4.2 Jus in bello

Concerning the principle of proportionality, it may be defined as follows: in attacking military

27.4.3 Inte rnational criminal law

27.4.4 Inte rnational human rights law

https://www.opencanada.org/features/six-deceptive-argu ments-against-nuclear-weapons-ban/ Accessed 30 April 2019.

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