Humanization of Arms Control: Paving the Way for a World free of Nuclear Weapons (Routledge Research in the Law of Armed Conflict) by Daniel Rietiker

Author:Daniel Rietiker [Rietiker, Daniel]
Language: eng
Format: epub
ISBN: 9781315399683
Publisher: Taylor and Francis
Published: 2017-07-05T21:00:00+00:00

3. A legal update: Toward a presumption of unlawfulness of nuclear weapons under international humanitarian law

In the present subdivision, the author proposes some personal conclusions on the question of the legality of use of nuclear weapons under humanitarian law in light of the recent developments, detailed so far.

Even though the humanitarian approach is not new, as shown above, it has received a new impulse from the numerous voices that have expressed their concern about the potential use of nuclear weapons and, in particular, about the protection of the human being and future generations. To mention only two examples, it can be recalled that the NPT Review Conference, a forum that had traditionally been concerned more with aspects of international security than with humanitarian ideas, voiced in 2010 “its deep concern at the catastrophic humanitarian consequences of any use of nuclear weapons,” and that, in 2011, the Council of Delegates of the International Red Cross and Red Crescent Movement found “it difficult to envisage how any use of nuclear weapons could be compatible with the rules of international humanitarian law.” Moreover, the outcome of the three conferences in Oslo, Nayarit, and Vienna shows that the humanitarian impact of the use of nuclear weapons has been underestimated. Recent and very concrete studies demonstrate the destructive power of nuclear weapons explosions, in particular in large cities and densely populated regions. A legal assessment cannot remain unaffected by these findings.

Accordingly, the present author suggests that new evidence and information gathered since 1996 confirm that nuclear weapons cannot be used without violating basic rules of international humanitarian law.151 In light of their particularities, especially the uncontrollability of their impact, these weapons cannot be used without causing considerable collateral damage to civilians and civilian objects. Burroughs argues that the inability to comply with the requirement of discrimination due to the uncontrollability of effects is the most powerful argument in favor of the unlawfulness of the use of nuclear weapons under international humanitarian law.152 This point of view is shared here without reservations. If cluster munitions directed at the town of Zagreb have been considered to be indiscriminate weapons by the ICTY in the case of Milan Martić1, as explained in Part I of this volume,153 it is hard to imagine a situation where the use of nuclear weapons would respect the requirement of distinction in attack. Moreover, the uncontrollability of effects also has a temporal aspect in the same way as anti-personnel mines or ERW. The latter linger and kill and maim civilians, in particular children and women, often years after the cessation of hostilities. The harmful impact of nuclear weapons on future generations will be addressed in more detail in the next section, dealing with human rights.

Essentially the same can be claimed regarding the rule prohibiting unnecessary suffering. The long-term effects of nuclear weapons include a significantly increased risk of cancer mortality throughout the life of the survivors.154 In light of demonstrable consequences of the use of nuclear weapons, it is not possible, from the

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