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International humanitarian law and the Advisory Opinion of the International Court of Justice on the legality of the threat or use of nuclear weapons

Published online by Cambridge University Press:  13 January 2010

Louise Doswald-Beck
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Extract

The Advisory Opinion of the International Court of Justice represents the first time that the Court's judges have been called upon to analyse in some detail rules of international humanitarian law. Other instances, for example, the Nicaragua case, involved nowhere near such an extensive analysis. The Advisory Opinion is therefore of particular interest in that it contains important findings on the customary nature of a number of humanitarian law rules and interesting pronouncements on the interpretation of these rules and their relationship with other rules. Most judges based their final decision on the legality of the threat or use of nuclear weapons on teleological interpretations of the law, choosing either the right of self-defence as being the most fundamental value, or the survival of civilization and the planet as a whole as paramount. Unfortunately, space does not permit a comment on these highly important analyses of the underpinnings of humanitarian law and its purpose in the international order. Therefore, rather than focusing primarily on the Court's conclusion as to the legality of the threat or use of nuclear weapons, this short comment will concentrate on the various pronouncements made on humanitarian law rules. Reference to the Court's finding on the legality of the use of nuclear weapons will only be made from the point of view of how it has contributed to the interpretation of those rules. For this purpose, reference will be made not only to the Advisory Opinion as such (hereafter referred to as the “Opinion”), but also to the various Separate and Dissenting Opinions.

Type
Research Article
Information
International Review of the Red Cross (1961 - 1997) , Volume 37 , Special Issue 316: The Advisory Opinion of the International Court of Justice on the legality of nuclear weapons and international humanitarian law , February 1997 , pp. 35 - 55
Copyright
Copyright © International Committee of the Red Cross 1997

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References

1 The most extensive analysis of this nature was made in: International Court of Justice, Legality of the threat or use of nuclear weapons, Advisory Opinion of 8 07 1996 Google Scholar, Dissenting Opinion of Judge Weeramantry.

2 Opinion, para. 75.

3 Ibid., para. 81.

4 Ibid., para. 82.

5 Ibid., para. 84.

6 Ibid., para. 78.

7 Ibid.

8 The only case in which attacks by nuclear weapons were analysed by a court in the light of international law was the Shimoda Case (Tokyo District Court 1964, reprinted in International Law Reports, vol. 32, 1966, p. 626)Google Scholar. The judgement is summarized and analysed by Falk, R., “The Shimoda Case: a legal appraisal of the atomic attacks upon Hiroshima and Nagasaki”, AJIL, vol. 59, 1965, p. 759 Google Scholar. The District Court did not analyse the meaning of an indiscriminate weapon as such, but did look at the lawfulness of indiscriminate bombing as a method of warfare. However, it referred to the law applicable at the time and this involved the outdated distinction between bombing defended and undefended cities — a concept only really relevant in the context of open cities.

9 Declaration of Judge Bedjaoui, President, para. 21.

10 Separate Opinion of Judge Guillaume, para. 5.

11 Opinion, para. 78.

12 Dissenting Opinion of Judge Higgins, para. 24.

13 Ibid.

14 Separate Opinion of Judge Guillaume, para. 5 (ICRC translation. French original: “… le droit coutumier comporte une seule interdiction absolue: celle des armes dites “aveugles” qui sont dans l'incapacité de distinguer entre cibles civiles et cibles militaires. Mais à l'évidence les armes nucléaires n'entrent pas nécessairement dans cette categorie”.)

15 Dissenting Opinion of Vice-President Schwebel.

16 This is quite different from a bullet or missile which misses its intended target or the side effects of conventional bombs. This definition of an “indiscriminate weapon” would clearly cover bacteriological weapons and, in general, poison gas.

17 Opinion, para. 35.

18 Ibid., para. 95. The “requirements” referred to in this sentence were the prohibition of “methods and means of warfare which would preclude any distinction between civilian and military targets or which result in unnecessary suffering to combatants”.

19 Separate Opinion of Judge Fleischhauer, para. 2.

20 Declaration of Mr Bedjaoui, President, para. 20 (ICRC translation. French original: “Les armes nucléaires paraissent bien — du moins dans l'état actuel de la science — de nature à faire des victimes indiscriminées, confondant combattants et non-combattants… L'arme nucléaire, arme aveugle, déstabilise done par nature le droit hwnanitaire, droit du discernement dans l'utilisation des armes”).

21 Declaration by Judge Herczegh, page 1, second paragraph (ICRC translation. French original: “Les principes fondamentaux du droit international humanitaire, correctement mis en valeur dans les motifs de l'avis consultatif, interdisent d'une manière categorique et sans équivoque l'emploi des armes de destruction massive et, parmi celles-ci, des armes nucléaires”).

22 It is arguable that anti-personnel landmines are indiscriminate in nature on the basis of both tests: first, because they cannot actually be targeted at military objectives for they are placed in advance on the assumption that combatants may pass in that direction; secondly, because they frequently have unforeseen effects, especially when they move from their original emplacement by the effects of the weather.

23 Dissenting Opinion of Judge Higgins, para. 21.

24 Dissenting Opinion of Vice-President Schwebel, paras. 23 and 24.

25 Ibid., para. 25.

26 See, for example, the Dissenting Opinion of Judge Weeramantry, page 84, para. (xi).

27 See for example, Doswald-Beck, Louise, “New Protocol on Blinding Laser Weapons”, IRRC, No. 313, 05–06 1996, p. 272.Google Scholar

28 Opinion, para. 78.

29 The difficulty is that the unnecessary suffering rule means that the weapon is prohibited without the need for a treaty. This deters States, especially those which had developed the weapon, from declaring such unlawfulness, but they may be willing to ban a weapon arguing that such a ban is purely treaty-based. There can be no doubt, however, that the motivation for agreeing to a ban stems from an assessment that the normal military utility does not justify the weapon's adverse effects.

30 Dissenting Opinion of Judge Higgins, para. 12.

31 Opinion, para. 95. See footnote 18 above.

32 Separate Opinion of Judge Fleischhauer, para. 2.

33 Declaration of Mr Bedjaoui, President, para. 20 (ICRC translation. French original: “causent des souffrances inutiles”).

34 See footnote 21 above.

35 Dissenting Opinion of Judge Shahabuddeen, paras. 19–21.

36 Dissenting Opinion of Judge Koroma, p. 11. The Tokyo District Court in the Shimoda Case found atomic bombs to be a violation of this rule on the same reasoning, see Falk, , op. cit. footnote 8 above, p. 775.Google Scholar

37 Dissenting Opinion of Judge Weeramantry, p. 48.

38 Dissenting Opinion of Judge Weeramantry, pp. 56–58.

39 Dissenting Opinion of Judge Koroma, p. 11.

40 See, for example, a debate on the influence of the Martens Clause by a group of experts during discussions on whether blinding laser weapons should be considered illegal or in any event should be banned: Blinding Weapons: Reports of the Meetings of Experts convened by the International Committee of the Red Cross on Battlefield Laser Weapons, 1989–1991, ICRC, 1993 pp. 340–341 and 344–346.Google Scholar

41 Opinion, para. 87

42 Ibid., para. 78.

43 Ibid., para. 86.

44 Dissenting Opinion of Judge Shahabuddeen, pp. 22–23.

45 Dissenting Opinion of Judge Weeramantry, pp. 41–43.

46 Although not actually brought up in the Opinion, a number of judges did discuss the relevance of the Lotus Case (PCIJ, 1927 Google Scholar; a case concerning criminal jurisdiction as a result of a collision at sea). Judge Guillaume cited this case favourably in order to make his point that in humanitarian law, States choose to prohibit weapons by treaty, and if not so prohibited, they are lawful (para. 10 of his Separate Opinion). However, President Bedjaoui, in his Declaration, stressed that he voted with the Opinion only on the understanding that what was not prohibited was not necessarily allowed; international society had changed dramatically since 1927, being now far more closely knit (paras. 10–15). This view was supported by Judge Shahabuddeen (pp. 13–14), and Judge Weeramantry added that the PCIJ would never have imagined such a use for its statement, especially in the light of the Martens Clause (pp. 45–46).

47 Opinion, para. 78

48 Additional Protocol I of 1977, Art. 51, para. 2.

49 Ibid., Art. 40.

50 Opinion, para. 25.

51 In a case before the Inter-American Commission of Human Rights, relating to the bombardment of a hospital in an armed conflict, the plaintiffs asked the Commission to interpret the “right to life” in the light of humanitarian law rules. See D. Weissbrodt and B. Andrus “The Right to Life during Armed Conflict: Disabled People's International v. United States, 29 Harvard Int. L.J., 1988, p. 59 Google Scholar. A similar request was made before the same Commission in case number 10.573.

52 See, for example, the case of Cyprus v. Turkey (Council of Europe, European Commission of Human Rights, Decisions and Reports, vol. 72, p. 5), in which the Commission found a violation of Article 5 of the European Convention on Human Rights (right to liberty and security of person) in the case of persons missing during and after an armed conflict, and did not interpret this Article in the light of relevant provisions of the Geneva Conventions. Similarly, Loizidou v. Turkey (judgement of the Court, 18 December 1996) relating to northern Cyprus, in which the Court found a violation of the right to property and did not consider equivalent provisions in the Fourth Geneva Convention although it based the responsibility of Turkey under the European Convention on its military occupation of northern Cyprus (paras. 52 and 54 of the judgement).

53 Opinion, para. 29.

54 Ibid., para. 30. In this context, the Court cited approvingly Principle 24 of the Rio Declaration, which provides that “[w]ar is inherently destructive of sustainable development. States shall therefore respect international law providing protection for the environment in times of armed conflict and cooperate in its further development”.

55 See, for example, ICRC Guidelines for Military Manuals and Instructions on the Protection of the Environment in Times of Armed Conflicts, 1994, submitted pursuant to UN General Assembly Resolution A/RES/48/30 of 9 December 1993, see IRRC, No. 311, 03–04 1996, pp. 230–237 Google Scholar; also paragraph 13 (c) of the San Remo Manual on International Law Applicable to Armed Conflicts at Sea, published by Cambridge University Press together with a commentary entitled “Explanation”, IIHL, 1995 (ed. L. Doswald-Beck), p. 87. See also other provisions relating to the environment: paras. 11, 34 and 44 and commentary on them on pp. 82–83, 108–109 and 119–121 respectively of the Explanation.

56 Opinion, para. 32

57 Ibid., para. 31

58 San Remo Manual, 1994, Section II paras. 3–6. Some of this argument is reflected in the travaux préparatories in Bochumer Schriften, No. 24, pp. 133–206.Google Scholar

59 Op cit., footnote 52, pp.75–78.Google Scholar

60 Opinion, paras. 41 and 42; text in italic in para. 42

61 Opinion, para. 105, sub-para. 2E.

62 Of the seven judges who voted in favour of this finding, four stated in their Separate Opinions that the use of nuclear weapons was clearly illegal, applying the rules of humanitarian law (Judges Bedjaoui, Ranjeva, Herczegh and Fleischhauer), and a fifth found them to be illegal in customary law (Judge Ferrari Bravo). Of the seven who voted against, three thought that their use might be legal within humanitarian law in certain extreme circumstances (Judges Schwebel, Guillaume and Higgins), three considered their use to be always illegal under humanitarian law (Judges Shahabuddeen, Weeramantry and Koroma) and the seventh (Judge Oda) thought that the Court should not have given an Advisory Opinion.

63 A fact pointed out by Judge Weeramantry, Dissenting Opinion, pp. 81–82. It is also worth mentioning that Judge Weeramantry was the only judge to analyse whether a use of nuclear weapons in such extreme circumstances would realistically protect the State acting in self-defence and concluded on the basis of impressive authority that it probably would not (pp. 59–61).