Executive Summary This paper starts from the premise that international humanitarian law can be applied to the issue of nuclear weapons. Few issues are more appropriate subjects of humanitarian concern and international humanitarian law than the choice, possession, use and misuse of weapons generally. Disarmament is at heart a humanitarian issue. Indeed, the Chemical and Biological Weapons Conventions have as their raison d'être to reinforce prohibitions on the use of such weapons contained in international humanitarian law. International humanitarian law, and the social norms and values on which it is based, are the tools by which humanity has protected itself from misuse of its technical capacities for destruction and demonstrated its capacity for wisdom.
A body of International Humanitarian Law and Disarmament Treaty Law has been built up to control and prohibit a range of conventional weapons. This approach has lead to regulations and prohibitions on a variety of conventional weapons, including the Mine Ban Convention and the Convention on Cluster Munitions. It was humanitarian considerations that drove the push for the constraints, and eventual prohibition, on nuclear testing.
The 1996 International Court of Justice Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons concluded unanimously that the principles and rules of international humanitarian law apply to the use of nuclear weapons. The Blix WMD Commission moreover clearly called for nuclear weapons to be outlawed.
Historically, in the case of chemical and biological weapons, the emphasis at first was on the prohibition of use but was expanded later to cover possession of such weapons. The same progression should be applied to nuclear weapons. The process should start with a prohibition on first use. Only China, India and North Korea are publicly committed to no-first use. NATO strategy sees nuclear weapons as being ‘of last resort’. But the situation relating to the remaining NPT NWS remains uncertain. In the context of renewed engagement on nuclear disarmament, however, the role of a no first use pledge would take on a new meaning.
There seems to be an erroneous distinction between nuclear weapons for use and nuclear weapons for deterrence. Nuclear weapons deterrence is premised on the belief that they will be used—or there is at least a significant chance of their use. However, recent studies are challenging the efficacy of nuclear weapons in their ability to deter. But if there is indeed a risk they will be used, that is precisely why outlawing them, reducing their numbers and alert status, and eventually eliminating them, is vital.
The process of moving from outlawing use to outlawing possession would need to include steep reductions in nuclear arsenals and reiterations of assurances of non-use to non nuclear weapons states and reassurances of no use between the nuclear armed states as a way to build trust in the process.
Recent successes in disarmament through the merging of international humanitarian law and disarmament treaty law should be emulated, particularly given the paralysis of the UN’s primary arms control negotiating body, the Conference on Disarmament. The land mine and cluster weapons conventions and UN Programme of Action on small arms provide useful models.
One important thing which will need to be accepted is that not everyone will be on board—perhaps not even the so-called “important countries” at the beginning.
Learning the lessons from recent success in international humanitarian law, the following steps would need to be part of any progress towards nuclear disarmament:
1. A core group of states, NGOS and international organizations need to establish themselves on a self-selecting basis.
2. A variety of strategies are required for such a complex problem with such high stakes. It cannot be left to one process, or for each step to depend on a previous one to succeed.
3. Ambition, such as a Nuclear Weapons Convention that will lead to the outlawing of nuclear weapons and their elimination, is the framework that will attract most public attention and passion. Small steps on the way—however necessary—will only attract the experts and minutiae-loving arms controllers that are already engaged and frankly not succeeding in moving things along.
4. Engagement of the public is a critical factor. A sustained, media campaign using electronic networks, such as facebook, twitter, myspace, youtube and other similar tools, in addition to the more traditional formats, are additive, not substitutional.
5. This will all cost money.
6. A multilayered approach to the issues is required and different types of players and negotiations are required for different types of measures.
An overarching approach such as the draft nuclear weapons convention currently on the table is one that the ICNND could strongly espouse. The draft convention is intended as a way forward to stimulate thinking, and the ICNND may well wish to add more into the over-arching package, emphasizing, for example, the declaration of No Use.
With the key focus being on human security and humanitarian perspectives, the ICNND should be making proposals that will make a difference in reality. Thanks to major political changes taking place and the crisis in the financial system, the ICNND has an opportunity to push for a radical, practical approach to nuclear disarmament, putting people and human frailty at the centre of the debate and being focused on achieving a safer world, free from nuclear weapons.
1. Weapons of Horror
The first use of chlorine gas in World War I was on 22 April 1915, at the start of the Second Battle of Ypres. That morning Germany had bombarded the vicinity of Ypres. By the afternoon, the attacks had stopped and all was quiet. At about 5 pm, the bombardment began again—however, in this attack, the shells were releasing a noxious yellow-green cloud that drifted slowly, deliberately towards the French line.
In a few seconds, those soldiers standing ready on the front line inhaled chlorine gas, they began to choke and their respiratory organs were thus destroyed.
But someone still was yelling out and stumbling
And flound’ring like a man in fire or lime . . .
Dim, through the misty panes and thick green light,
As under a green sea, I saw him drowning.
In all my dreams, before my helpless sight,
He plunges at me, guttering, choking, drowning1.
The use of chlorine gas by Germany led to strong condemnation. Its effects were terrifying, often fatal or inflicting life-long debilitating trauma. It was thought militarily effective, however, and the use of poison gas escalated with retaliation and reply-in-kind for the remainder of the war. In addition to the use of chlorine gas, phosgene with its delayed effects, the “white star” mixture of phosgene and chlorine, and blistering Mustard Gas were all used with abandon and impunity.
By 1918 the use of use of poison gases had become widespread, particularly on the Western Front. If the war had continued into 1919 both sides had planned on inserting poison gases into 30%–50% of manufactured shells. A total of some 100,000 tons of gas was used by the end of the war resulting in well over a million casualties from the use of gas in World War I, some 100,000 deaths, with survivors left severely disabled for the rest of their lives.
As a consequence of this human carnage and outrage at the horrific effects of chemical weapons, the 1919 Treaty of Versailles addressed the issue by stating: “The use of asphyxiating, poisonous or other gases and all analogous liquids, materials or devices being prohibited, their manufacture and importation are strictly forbidden in Germany2.” Later, in 1925, the Geneva Protocol3, prohibiting the use in war of asphyxiating, poisonous or other gases, was agreed at the conference for the supervision of the international trade in arms and ammunition, at the League of Nations4.
2. Use, Misuse and Humanitarianism5
Few issues are more appropriate subjects of humanitarian concern and international humanitarian law than the choice, possession, use and misuse of weapons. Indeed, concern over arms, their development, their possession, their use and their misuse goes right back to the roots of the foundation of the Red Cross and Red Crescent Movement.
In 1862, in his Memory of Solferino, the founder of the Red Cross Movement, Henri Dunant said “If the new and frightful weapons of destruction which are now at the disposal of the nations, seem destined to abridge the duration of future wars, it appears likely … that future battle will become more and more murderous”. So the link to weapons control and humanitarian action was obvious to Dunant and formed part of the basis of the Red Cross and Red Crescent movement. Indeed the thread of the use, misuse, control and prohibition of weapons is woven throughout the history of international humanitarian law6.
Even at the height of the Cold War, when political sensitivity was at its highest, the humanitarian community was tackling weapons of mass destruction. In 1954, for example, the Board of Governors of the Red Cross pleaded with all the powers to “work unceasingly for general disarmament and to prohibit the use—absolutely and effectively—of all nuclear weapons as well as chemical and biological weapons”. Despite the 1956 rejection of the ICRC draft rules for the limitation of the dangers incurred by the civilian population in time of war, the 21st International Conference, in Istanbul in 1969 requested the UN to pursue efforts towards the adoption of a special agreement on the prohibition of weapons of mass destruction and the ICRC to continue to devote great attention to this question and take every step it deems possible. At the same meeting a resolution was passed that appealed for a comprehensive, adequately verified nuclear test ban treaty.
Disarmament is at heart a humanitarian issue. We have to keep remembering that we are interested in arms control and disarmament because of the effects of these terrible weapons on people. Ordinary people, mothers, fathers, sisters, brothers, daughters and sons whose limbs are ripped apart, who slowly bleed to death, who develop cancer, pass on malformations to the next generation, whose livelihoods are lost and who starve as a result. These are the people for whom we are working to rid the world of the weapons that would otherwise destroy them.
The “soul of arms control” is its humanitarian mission and it is—or at least it should be—entirely rooted in the already existing norms that have been established by international humanitarian law.
Indeed, two of the landmark global arms control agreements of the last decades—the Chemical and Biological Weapons Conventions—have as their raison d’être to reinforce prohibitions on the use of such weapons contained in international humanitarian law. It was this humanitarian basis that provided the common ground for much of what followed that we have come to think of as “traditional” arms control.
In more recent years, the 1997 Mine Ban Convention, the 2001 UN Programme of Action on the Illicit Trade in Small Arms and Light Weapons, and the 2008 Convention on Cluster Munitions have all brought together the technical, political arms control community with the humanitarian and development communities to produce three of the most far-reaching and effective international agreements/action plans ever negotiated.
The convergence of an array of humanitarian concerns, rooted in international humanitarian law and harnessed to address urgent arms issues now have an impressive “track record”. International humanitarian law, and the social norms and values on which it is based, are the tools by which humanity has protected itself from misuse of its technical capacities for destruction and demonstrated its capacity for wisdom.
3. Humanitarianism and nuclear weapons
“From 1945 to 1980, over 500 weapons tests were conducted in the atmosphere at a number of locations around the world. These tests resulted in the release of substantial quantities of radioactive debris to the environment. Local, intermediate, and global fallout deposition densities downwind from test sites depended on the heights of bursts, the yields, and the half-lives and volatilities of the particular fission or activation products, as well as on the meteorological conditions. The impact of weapons fallout will continue to be felt for years to come since a contaminant baseline has been imposed on the ambient radiation environment that will be an important factor in the assessment of past and future releases of radioactive materials into the biosphere”7.
“I lived on the island of Likiep in the northern Marshalls for the entire 12 years of the US atomic and thermonuclear testing program in my country. I witnessed most of the detonations, and was just 9-years old when I experienced the most horrific of these explosions, the infamous BRAVO shot that terrorized our community and traumatized our society to an extent that few people in the world can imagine. While BRAVO was by far the most dramatic test, all 67 of the shots detonated in the Marshall Islands contributed one way or another to the nuclear legacy that haunts us to this day. As one of our legal advisors has described it, if one were to take the total yield of the nuclear weapons tested in the Marshall Islands and spread them out over time, we would have the equivalent of 1.6 Hiroshima shots, every day for twelve years.
Although the testing of the atomic and thermonuclear weapons ended 48 years ago, we still have entire populations living in social disarray. The people of Rongelap Atoll, the inhabited island closest to the ground zero locations, remain in exile in their own country … the people of Kwajalein have been removed from their homelands, crowded into unbearable living squalor on a 56-acre island with 18,000 residents called Ebeye. This is the equivalent of taking everyone here in Manhattan and forcing them to live on the ground floor—can you imagine the density of Manhattan if there were no skyscrapers?
“When we talk about the importance of non-proliferation of weapons we also must include in our discourse the essential non-proliferation of illness, forced relocation, and social and cultural ills in the indigenous communities that pay disproportionately for the adverse consequences resulting from the process, deployment, and storage of weapons. A relatively few number of world leaders and decision-makers do not have the right to destroy the well-being and livelihood of any society, whether large or small, in the name of global security. Security for indigenous people means healthy land, resources and body—not the presence of weapons and the dangers they engender. Global leaders do not have, nor should they be allowed to assume the right, to take my security away so that they may feel more secure themselves.”8
It was the realization of the impact on peoples’ health and devastating social and environmental effects of testing nuclear weapons in the atmosphere and the growing fears of where the nuclear arms race would end up that created the conditions for the 1963 Partial Test Ban. In other words it was humanitarian considerations that drove the push for the constraints, and eventual prohibition on nuclear testing. This Treaty—which originally started out as a negotiation for a comprehensive test ban treaty—that prohibited nuclear weapons tests in the atmosphere, underwater or in outer space, was followed by bilateral and unilateral restraints on nuclear weapons testing, leading eventually to the negotiation of the Comprehensive Test Ban Treaty (CTBT) in 1996.
International Humanitarian Law has developed an approach to the use of weapons in combat. Combatants are prohibited to use weapons which are inherently indiscriminate or which are of a nature to inflict suffering greater than that required to take combatants “out of action”. Weapons which violate the “dictates of the public conscience” may also be prohibited on that basis alone. The use of weapons which cause widespread, long-term and severe damage to the natural environment is prohibited9.
A body of International Humanitarian Law and Disarmament Treaty Law has been built up to control and prohibit a range of conventional weapons. This approach has lead to regulations and prohibitions on a variety of conventional weapons, including the Mine Ban Convention and the Convention on Cluster Munitions.
In 1996, the fourteen judges of the International Court of Justice issued an Advisory Opinion about the Legality of the Threat or Use of Nuclear Weapons. They examined current treaty law, customary rules and state practice with regard to nuclear weapons and concluded unanimously that the principles and rules of international humanitarian law apply to the use of nuclear weapons. They added that the use of nuclear weapons would generally be contrary to the principles and rules of international humanitarian law.
In response to the ICJ’s Advisory Opinion, the ICRC made a statement to the 51 session of the United Nations General Assembly:
“We were pleased to see the reaffirmation of certain rules which the Court defined as “intransgressible”, in particular the absolute prohibition of the use of weapons that are by their nature indiscriminate as well as the prohibition of the use of weapons that cause unnecessary suffering. We also welcome the Court’s emphasis that humanitarian law applies to all weapons without exception, including new ones. In this context we would like to underline that there is no exception to the application of these rules, whatever the circumstancesst . International humanitarian law is itself the last barrier against the kind of barbarity and horror that can all too easily occur in wartime, and it applies equally to all parties to a conflict at all times.
“Turning now to the nature of nuclear weapons, we note that, on the basis of the scientific evidence submitted, the Court found that ‘...The destructive power of nuclear weapons cannot be contained in either space or time...the radiation released by a nuclear explosion would affect health, agriculture, natural resources and demography over a very wide area. Further, the use of nuclear weapons would be a serious danger to future generations...’ In the light of this, the ICRC finds it difficult to envisage how a use of nuclear weapons could be compatible with the rules of international humanitarian law.
“We are convinced that because of their devastating effects no one ever wants to see these weapons used. It is the ICRC’s earnest hope that the opinion of the Court will give fresh impetus to the international community’s efforts to rid humanity of this terrible threat”.
That there is a case for approaching nuclear disarmament from the perspective of international humanitarian law is well made. What this would mean in practice is an opportunity to explore nuclear disarmament from new perspectives and practices.
As the Weapons of Mass Destruction Commission, chaired by Dr Hans Blix put it:
“Nuclear, biological and chemical arms are the most inhumane of all weapons. Designed to terrify as well as destroy, they can, in the hands of either states or non-state actors, cause destruction on a vastly greater scale than any conventional weapons, and their impact is far more indiscriminate and long-lasting.
“Nuclear weapons must never again be used—by states or by terrorists—and the only way to be sure of that is to get rid of them before someone, somewhere is tempted to use them. Today, we are in a dangerous situation. There has been a third wave of nuclear proliferation. Proliferation has not been halted and serious steps to outlaw nuclear weapons have not been taken. Nuclear weapons are remnants of the Cold War. It is time to outlaw them10.”
This paper will start from the premise that international humanitarian law can be applied to the issue of nuclear weapons. I will take that to mean that at the heart of the approach is the issue of human security, the protection of civilians, the application of the laws of war. Weapons that are inherently indiscriminate or that are of a nature to inflict unnecessary suffering that violate the sense of decency (“dictates of the public conscience”) and that cause widespread, long-term and severe damage to the natural environment are indeed nuclear weapons. I shall also include aspects of human rights law in that people who use weapons to abuse, to terrify, are violating the very basics of human rights.
Disarmament treaty law is rooted in the already existing norms that have been established by international humanitarian and human rights law. They share their DNA. When progress in disarmament has been achieved, it is because the devastating impact of the weapons on people has been understood.
4. From the prohibition of use to the prohibition of possession of NW:
In the case of chemical and biological weapons, the emphasis at first was on the prohibition of use. Following the acceptance of prohibition of use, in the form of the 1925 Geneva Protocol, the 1972 Biological Weapons Convention and the 1993 Chemical Weapons Convention have outlawed possession of these types of weapons by additionally prohibiting development, production and stockpiling, and providing for the destruction of the weapons. This makes perfect sense from the perspective of human security, international humanitarian law and human rights law. In the first place protect, prevent the onslaught and massacre and effects of the weapon. In the second place, remove the source of the problem—leading us to the outlawing of nuclear weapons (through for example, an extension of the NPT to all states or through a Nuclear Weapons Convention), eventual nuclear disarmament and the prevention of violent conflict—conflict prevention mechanisms, confidence-building measures and war prevention and so on.
4.1 Prohibition on first use
Throughout the Cold War, NATO’s nuclear policy was premised on the belief that the Soviet Union could launch an all out conventional attack on Western Europe with overwhelming conventional weapons superiority. The only way, it was believed in military circles, to prevent this happening in the event of war, was to threaten the early, and first, use of nuclear weapons. In so doing, NATO believed that the Soviet Union would thus be deterred from such folly and the peace would be kept in Europe, thus preventing World War III and nuclear Armageddon. In 1982, the USSR announced its long-term policy of No-First Use of nuclear weapons, but it was dismissed through the cold war as propaganda and gesture politics, appealing to the western peace movement’s naïve demands for nuclear disarmament. China has held a no first use policy since 1964, India since 1998 and North Korea has announced the same in October 2006.
Following the end of the cold war, NATO announced political and military strategy review to reflect “a reduced reliance on nuclear weapons” and lead to the adoption of “a new NATO strategy making nuclear forces truly weapons of last resort.” 11 However, in 1993, the Russian federation dropped the No First Use policy and there has been little progress on the issue in any concerted way since.
Recent erosion of such assurances and pledges has occurred with statements from NWS leaders on the possibility of use in response to chemical and biological weapons use or in the event, for example, of a US non-nuclear attack over Taiwan.
It is worth noting however, that all of the five nuclear weapons states in the NPT have declared Negative Security Assurances (Security Council Resolution 984, 1995) which are in effect, no-nuclear-use-at-all (no use) pledges for the non-nuclear weapon states (although for some their participation in nuclear alliances negates the pledges).
In the context of renewed engagement on nuclear disarmament, however, the role of a no first use pledge would take on a new meaning. Putting the humanitarian and human security focus at the centre of efforts would require a radical rethink of the role of nuclear weapons. If nuclear disarmament is the goal, if the nuclear weapons states will at least venture to the Vantage Point, the path could then be cleared for the climb to the nuclear disarmament summit12.
How to achieve a declaration of no-first use (and subsequent steps) is dealt with below.