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The human costs and legal consequences of nuclear weapons under international humanitarian law

Published online by Cambridge University Press:  07 July 2016

Louis Maresca  and
Eleanor Mitchell
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Abstract

The potential use of nuclear weapons has long been a global concern. This article highlights the principal rules of international humanitarian law (IHL) governing the conduct of hostilities applicable to nuclear weapons, and the issues and concerns that would arise were such weapons ever to be used again, in particular the severe and extensive consequences for civilians, civilian objects, combatants and the environment.

In recent years, increased attention has been paid to the humanitarian consequences of nuclear weapons. Based on what has been learned from extensive research on the humanitarian and environmental effects of nuclear weapons since they were first used in 1945, and the accompanying implications for IHL, it seems appropriate to conclude that the use of nuclear weapons in or near a populated area would amount to an indiscriminate attack and that there should also be a presumption of illegality with regard to the use of nuclear weapons outside such areas.

Keywords

nuclear weaponsinternational humanitarian lawdeterrencedisarmamenthumanitarian consequences
Type
Nuclear weapons: Law and policy considerations
Information
International Review of the Red Cross , Volume 97 , Issue 899: The human cost of nuclear weapons , September 2015 , pp. 621 - 645
Copyright
Copyright © icrc 2016 

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References

1 2010 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, Final Document, Vol. 1, UN Doc. NPT/CONF.2010/50, 2010, p. 19.

2 Peter Maurer, “Nuclear Weapons: Ending a Threat to Humanity”, speech to the Geneva Diplomatic Corps, 15 February 2015, available in the “Reports and Documents” section of this issue of the Review.

3 These include expanding bullets, exploding bullets weighing less than 400 grams, chemical and biological weapons, munitions that have fragments not detectable by X-ray, blinding laser weapons, anti-personnel mines and cluster munitions.

4 ICJ, The Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 8 July 1996 (Nuclear Weapons Advisory Opinion).

5 Ibid., para. 35.

6 Ibid.

7 Ibid., para. 105(2E).

8 Ibid.

9 See, for example, articles contained in the thematic issue of the International Review of the Red Cross on “Nuclear Weapons: The Advisory Opinion of the International Court of Justice on the Legality of Nuclear Weapons under International Humanitarian Law”, Vol. 79, No. 823, 1997Google Scholar; Daniel Thurer, “The Legality of the Threat or Use of Nuclear Weapons: The ICJ Advisory Opinion Reconsidered”, in Volkerrecht und die Dynamik der Menschenrechte: Liber Amicorum Wolfram Karl, Wien, 2012; Rosenne, Shabtai, “The Nuclear Weapons Advisory Opinion of 8 July 1996”, Israel Yearbook on Human Rights, Vol. 27, 1997Google Scholar.

10 United Nations (UN) Department of Disarmament Affairs, Comprehensive Study on Nuclear Weapons, Report of the Secretary General, UN Doc. A/45/373, 1991, pp. 71–73.

11 Ibid., pp. 76–80; British Medical Association, The Medical Effects of Nuclear War, John Wiley and Sons, Chichester, 1983, pp. 45–56 (looking at estimations of casualties of a nuclear attack on the United Kingdom); Frederic Solomon and Robert Q. Martson (eds), The Medical Implications of Nuclear War, National Academy Press, Washington D.C. 1986.

12 UN Department of Disarmament Affairs, above note 10, p. 82.

13 Ibid., pp. 82–84.

14 The extent of radiation illness from fallout will depend on a variety of factors. These include where the detonation occurred (high in the air or close to the ground), the yield of the weapon, local wind patterns and weather conditions, and whether individuals in the area of fallout are able to remain sheltered, especially during the initial days following the explosion, when radioactivity would be most intense.

15 ICRC and Japanese Red Cross Society, “Long-Term Health Consequences of Nuclear Weapons: 70 Years On, Red Cross Hospitals Still Treat Thousands of Atomic Bomb Survivors”, Information Note No. 5, July 2015.

16 Ibid.

17 Gregor Malich, then Head of ICRC NRBC Operational Response Unit, “Challenges in Responding to the Use of Nuclear Weapons”, presentation made to the Conference on the Humanitarian Impact of Nuclear Weapons, Oslo, 4–5 March 2013, available at: www.regjeringen.no/globalassets/upload/ud/vedlegg/hum/hum_malich.pdf (all internet references were accessed in December 2015). See also Coupland, Robin and Loye, Dominique, “Who Will Assist the Victims of Use of Nuclear, Radiological, Biological or Chemical Weapons – and How?”, International Review of the Red Cross, Vol. 89, No. 866, 2007, pp. 329–344Google Scholar; Coupland, Robin and Loye, Dominique, “International Assistance for Victims of Use of Nuclear, Radiological, Biological or Chemical Weapons: Time for a Reality Check?”, International Review of the Red Cross, Vol. 91, No. 874, 2009, pp. 329–340CrossRefGoogle Scholar; Gregor Malich, Robin Coupland and Johnny Nehme, “Chemical, Biological, Radiological or Nuclear Events: The Humanitarian Response Framework of the International Committee of the Red Cross”, in this issue of the Review.

18 G. Malich, above note 17.

19 R. Coupland and D. Loye, “Who Will Assist the Victims …?”, above note 17, p. 335. Depending on the levels of radiation, protective measures may have to be implemented which could include maintaining safe distances from contaminated areas, limiting the number of aid workers and time spent in such areas, and avoiding direct contact with contaminated matter.

20 John Borrie and Tim Caughley, An Illusion of Safety: Challenges of Nuclear Weapon Detonations for the United Nations Humanitarian Coordination and Response, UN, Geneva, 2014.

21 See Mark A. Harwell and Thomas C. Hutchinson, Environmental Consequences of Nuclear War, Vol. 2: Ecological and Agricultural Effects, 2nd ed., Wiley, New York, 1989; Owen B. Toon, Alan Robock and Richard Turco, “Environmental Consequences of Nuclear War”, Physics Today, December 2008; Committee on the Atmospheric Effects of Nuclear Explosions, The Effects on the Atmosphere of a Major Nuclear Exchange, National Academy Press, Washington, DC, 1985.

22 Ira Helfand, Nuclear Famine: A Billion People at Risk, Physicians for the Prevention of Nuclear War and Physicians for Social Responsibility, International Press, Somerville, MA, 2012.

23 Select conclusions drawn from the Chair's Summaries of each conference. See Conference on the Humanitarian Impact of Nuclear Weapons, Oslo, 3–5 March 2013, Chair's Summary, available at: www.regjeringen.no/en/aktuelt/nuclear_summary/id716343/; Second Conference on the Humanitarian Impact of Nuclear Weapons, Nayarit, 13–14 February 2014, Chair's Summary, available at: www.reachingcriticalwill.org/images/documents/Disarmament-fora/nayarit-2014/chairs-summary.pdf; Vienna Conference on the Humanitarian Impact of Nuclear Weapons, Vienna, 8–9 December 2014, Report and Summary Findings of the Conference, available at: http://www.reachingcriticalwill.org/images/documents/Disarmament-fora/vienna-2014/ChairSummary.pdf. See also Alexander Kmentt, “The Development of the International Initiative on the Humanitarian Impact of Nuclear Weapons and Its Effect on the Nuclear Weapons Debate”, in this issue of the Review.

24 See also Eric Schlosser, Command and Control: Nuclear Weapons, the Damascus Accident and the Illusion of Safety, Penguin Press, New York, 2013; Patricia Lewis, Heather Williams, Benoit Pelopidas and Sasan Aghlani, Too Close for Comfort: Cases of Near Nuclear Use and Options for Policy, Chatham House, London, 2014.

25 In this regard, the use of nuclear weapons can also raise issues under the law of neutrality, the customary rules of which would be applicable. See Nuclear Weapons Advisory Opinion, above note 4, paras 88–90.

26 Protocol Additional (I) to the Geneva Conventions of 12 August 1949 and relating to the Victims of International Armed Conflicts, 1125 UNTS 3, 8 June 1977 (entered into force 7 December 1978) (AP I).

27 These include Belgium, Canada, Germany, Italy, the Netherlands and Spain. The declarations of these countries can be found on the ICRC's IHL database, available at: www.icrc.org/applic/ihl/ihl.nsf/vwTreatiesByCountry.xsp.

28 See, for example, the written statements of the Netherlands, the Solomon Islands, the United Kingdom and the United States.

29 Nuclear Weapons Advisory Opinion, above note 4, para. 84; Stefan Oeter, “Means and Methods of Combat”, in Dieter Fleck (ed.), The Handbook of Humanitarian Law in Armed Conflicts, 3rd ed. Oxford University Press, Oxford, 2013, pp. 158–160; Yves Sandoz, Christophe Swinarski and Bruno Zimmerman (eds), Commentary on the Additional Protocols, ICRC, Geneva, 1987 (ICRC Commentary), para. 1852.

30 US Secretary of Defence, Nuclear Employment Strategy of the United States specified in Section 491 of 10 USC, June 2013, pp. 4–5.

31 UK Ministry of Defence, Joint Service Manual of the Law of Armed Conflict, Joint Service Publication No. 383, 2004, p. 117 n. 82, which directs the reader to Chapter 5 of the Manual on the conduct of hostilities.

32 Ibid., Chapter 5.

33 Ibid. See for example, Chapter 5.23, p. 68, and Section D on precautions in attack, p. 81.

34 Ibid., Chapter 5.29.3, p. 76.

35 See Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005 (ICRC Customary Law Study).

36 In particular, the rules for the protection of the civilian population. For a discussion on the customary status of the rules for the protection of the natural environment, whose customary status has been objected to by some States, see below.

37 Nuclear Weapons Advisory Opinion, above note 4, para. 78.

38 ICRC Customary Law Study, above note 35, Rule 1, p. 3, and Rule 7, p. 25; AP I, above note 26, Art. 48.

39 ICRC Customary Law Study, above note 35, Rule 3, p. 11; AP I, above note 26, Art. 43.

40 ICRC Customary Law Study, above note 35, Rule 9, p. 29; AP I, above note 26, Art. 52(1).

41 See ICRC Customary Law Study, above note 35, Rule 16, p. 55; AP I, above note 26, Art. 57(2)(a)(i).

42 Scott Shane, “1950's U.S. Nuclear Target List Offers Chilling Insight”, The New York Times, 22 December 2015. The full archive of declassified US Cold War target lists can be accessed at: https://nsarchive.gwu.edu/nukevault/ebb538-Cold-War-Nuclear-Target-List-Declassified-First-Ever/.

43 Jonah Friedman, “Countervalue v. Counterforce”, Center for Strategic and International Studies blog, 2 June 2011, on file with authors; Thérèse Delpech, Nuclear Deterrence in the 21st Century: Lessons from the Cold War for a New Era of Strategic Piracy, Rand Corporation, Santa Monica, CA, 2012, pp. 35–37; Farah Zhara, “Pakistan's Road to a Minimum Nuclear Deterrent”, Arms Control Today, 1 July 1999, available at: www.armscontrol.org/print/516.

44 See also S. Oeter, above note 29, p. 146: “On an abstract level one can only state that a strategy of ‘massive retaliation’ – at least in the form of a threat of first strike or of escalation – is probably not compatible with the general principles of distinction and the prohibition of indiscriminate warfare. A retaliatory operation against a population centre would only be permissible if it constituted a preemptive strike qualifying as a military reprisal.”

45 ICRC Customary Law Study, above note 35, Rule 12, pp. 40–41; AP I, above note 26, Art. 51(4).

46 ICRC Customary Law Study, above note 35, Rule 12, pp. 40–41; AP I, above note 26, Art. 51(4).

47 ICRC Commentary, above note 29, para. 1952, p. 620.

48 ICRC Customary Law Study, above note 35, Rule 71, p. 247. See also Stuart Casey-Maslen, “The Use of Nuclear Weapons under Rules Governing the Conduct of Hostilities”, in Gro Nystuen, Stuart Casey-Maslen and Annie Golden Bersagel (eds), Nuclear Weapons under International Law, Cambridge University Press, Cambridge, 2014, pp. 97–103.

49 Letter dated 20 June 1995 from the Acting Legal Adviser to the Department of State, together with the Written Statement of the Government of the United States of America, p. 23, available at: www.icj-cij.org/docket/files/95/8700.pdf; letter dated 16 June 1995 from the Legal Adviser to the Foreign and Commonwealth Office of the United Kingdom of Great Britain and Northern Ireland, together with Written Comments of the United Kingdom, p. 52, available at: www.icj-cij.org/docket/files/95/8802.pdf. In its written statement, the United States argued that “[s]ince nuclear weapons can be directed at a military objective, they can be used in a discriminate manner and are not inherently indiscriminate”: letter dated 20 June 1995, Ibid., p. 23. The United Kingdom similarly asserted that “[m]odern nuclear weapons are capable of far more precise targeting and can therefore be directed against specific military objectives”. Letter dated 16 June 1995, Ibid., p. 52.

50 See, e.g., Chatham, Robert, “Tactical Nuclear Weapons”, The Reporter, Vol. 37, No. 2, 2010, p. 44Google Scholar (noting that “[n]uclear weapons, particularly battlefield tactical devices, can be directed at specifically military targets”); S. Casey-Maslen, above note 48, p. 111 (describing this proposition as “relatively uncontroversial” in light of the accuracy of modern delivery mechanisms).

51 US Department of the Air Force, International Law: The Conduct of Armed Conflict and Air Operations, US Air Force Pamphlet No. 110-31, 1976, ss. 6-3(c) (although this pamphlet indicates that it does not necessarily reflect official US government policy).

52 South Africa National Defence Force, Revised Civic Education Manual, 2004, Chapter 4, ss. 56(f).

53 Nuclear Weapons Advisory Opinion, above note 4, para. 35: “[The Court] also notes that nuclear weapons are explosive devices whose energy results from the fusion or fission of the atom. By its very nature, that process, in nuclear weapons as they exist today, releases not only immense quantities of heat and energy, but also powerful and prolonged radiation. According to the material before the Court, the first two causes of damage are vastly more powerful than the damage caused by other weapons, while the phenomenon of radiation is said to be peculiar to nuclear weapons. These characteristics render the nuclear weapon potentially catastrophic. The destructive power of nuclear weapons cannot be contained in either space or time. They have the potential to destroy all civilization and the entire ecosystem of the planet.”

54 The ICRC Customary Law Study, above note 35, cites States as identifying the following weapons as being potentially indiscriminate: chemical, biological and nuclear weapons; anti-personnel landmines; mines; poison; explosives discharged from balloons; V-1 and V-2 rockets; cluster bombs; booby traps; Scud missiles and Katyusha rockets; incendiary weapons; and environmental modification techniques.

55 This includes the respect and protection outlined in the rule of distinction as well as the general principle outlined in AP I, Art. 51(1), that “[t]he civilian population and individual civilians shall enjoy general protection against dangers arising from military operations.”

56 Nuclear Weapons Advisory Opinion, above note 4, para. 35.

57 Matthew McKinzie, Erwin Polriech, Dèlia Arnold, Christian Maurer and Gerhard Wotawa, “Calculating the Effects of a Nuclear Explosion at a European Military Base”, presentation made to the Vienna Conference on the Humanitarian Impact of Nuclear Weapons, 8 December 2014, available at: www.bmeia.gv.at/fileadmin/user_upload/Zentrale/Aussenpolitik/Abruestung/HINW14/Presentations/HINW14_S1_Presentation_NRDC_ZAMG.pdf. Also see the article by Hans M. Kristensen and Matthew McKinzie in this issue of the Review.

58 National Research Council Committee on the Effects of Nuclear Earth-Penetrator and Other Weapons, Effects of Nuclear Earth-Penetrator and Other Weapons, National Academies Press, Washington, DC, 2005, pp. 75–80. See also Victor W. Sidel, H. Jack Geiger, Herbert L. Abrams, Robert W. Nelson and John Loretz, The Threat of Low-Yield Earth-Penetrating Nuclear Weapons to Civilian Populations: Nuclear “Bunker Busters” and Their Medical Consequences, International Physicians for the Prevention of Nuclear War, 2003; Nelson, Robert W., “Low-Yield Earth Penetrating Nuclear Weapons”, Science and Global Security, Vol. 10, 2002CrossRefGoogle Scholar (citing examples of very low-yield (>1kt) bunker-busting bombs spreading fatal doses of radiation to tens of thousands of people if detonated in or near a populated area).

59 ICRC Customary Law Study, above note 35, Rule 14, p. 46; AP I, above note 26, Art. 51(5)(b).

60 ICRC Commentary, above note 29, para. 2209.

61 See, e.g., Droege, Cordula, “Get Off My Cloud: Cyber Warfare, International Humanitarian Law and the Protection of Civilians”, International Review of the Red Cross, Vol. 94, No. 886, 2012, pp. 572–573CrossRefGoogle Scholar (describing it as “largely undisputed” that reverberating effects must be taken into account and that “it is reasonable to argue that foreseeable damages, even if they are long-term, second- and third-tier damages, must be taken into account”); Schmitt, Michael and Widmar, Eric, “On Target: Precision and Balance in the Contemporary Law of Targeting”, Journal of National Security Law and Policy, Vol. 7, No. 379, 2014, p. 405Google Scholar.

62 See, e.g., C. Droege, above note 61, p. 572; Marco Sassòli and Lindsey Cameron, “The Protection of Civilian Objects: Current State of the Law and Issues de Lege Ferenda”, in Natalino Rozitti and Gabriella Venturini (eds), The Law of Air Warfare: Contemporary Issues, Eleven International Publishing, The Hague, 2006, p. 65; Geiss, Robin, “The Conduct of Hostilities in Asymmetric Conflicts”, Journal of International Law of Peace and Armed Conflict, Vol. 23, No. 3, 2010, p. 122Google Scholar.

63 Elin Enger and Thomas Vik, Norwegian Defence Research Establishment, “Scenario of a Nuclear Detonation”, presentation to the Conference on the Humanitarian Impact of Nuclear Weapons, Oslo, 4 March 2013, available at: www.regjeringen.no/globalassets/upload/ud/vedlegg/hum/hum_enge.pdf.

64 By comparison, the atomic bomb dropped on Hiroshima was estimated to have a yield of 16 kilotons and the radius of destruction from the blast forces was estimated at 1.6 kilometres, with an additional 11 square kilometres destroyed by subsequent fires and firestorms. Some 70,000–80,000 people, including some 20,000 soldiers, were killed during this time. See, Committee for the Compilation of Materials on Damage Caused by the Atomic Bombs in Hiroshima and Nagasaki, Hiroshima and Nagasaki – the Physical, Medical and Social Effects of the Atomic Bombings, Basic Books, New York, 1981, pp. 55–56.

65 Ibid. In Hiroshima it is estimated that buildings and infrastructure across some 12 square kilometres of the city were destroyed.

66 Ibid., pp. 55–56.

67 See the discussion on the humanitarian consequences of nuclear weapons above.

68 ICRC Customary Law Study, above note 35, Rule 13, p. 43; AP I, above note 26, Art. 51(5)(a).

69 ICRC Commentary, above note 29, para. 1975.

70 But see Doswald-Beck, Louise, “International Humanitarian Law and the Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons”, International Review of the Red Cross, Vol. 79, No. 823, 1997Google Scholar; S. Casey-Maslen, above note 48, pp. 107–108.

71 ICRC Customary Law Study, above note 35, Rule 15, p. 51; AP I, above note 26, Art. 57(1).

72 ICRC Customary Law Study, above note 35, Rule 16, p. 55; AP I, above note 26, Art. 57(2)(i).

73 ICRC Customary Law Study, above note 35, Rule 16, pp. 56–60; AP I, above note 26, Art. 57(2)(ii).

74 Quéguiner, Jean Francois, “Precautions under the Law Governing the Conduct of Hostilities”, International Review of the Red Cross, Vol. 88, No. 864, 2006, pp. 809–810CrossRefGoogle Scholar.

75 Ibid.

76 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices, as amended on 3 May 1996, Art. 3(10); Protocol on Explosive Remnants of War, 28 November 2003, Art. 5(1).

77 See, e.g., UK Ministry of Defence, above note 31, p. 83, discussing the factors to be considered in selecting the means and methods of attack under this rule.

78 See J. F. Quéguiner, above note 74, pp. 802–803, arguing that this rule would require the use of precision-guided weapons over other munitions when they are in a State's arsenal and it is practically possible. See also Michael N. Schmitt and Eric Widmar, “The Law of Targeting”, in Paul Alphons Ducheine, Michael N. Schmitt and Frans P. B. Osinga (eds), Targeting: The Challenges of Modern Warfare, Asser Press, The Hague, 2016, p. 138.

79 See Rudesill, Dakota, “Regulating Tactical Nuclear Weapons”, Georgetown Law Journal, Vol. 102, No. 99, 2013, p. 159Google Scholar, concluding that, as conventional weapons can now be effectively used for most of the military missions for which “tactical” nuclear weapons would previously have been designated, “[t]he battlefield role for [tactical nuclear weapons] is over”. See also Moxley, Charles, Burroughs, John and Granoff, Jonathan, “Nuclear Weapons and Compliance with International Humanitarian Law and the Nuclear Non-Proliferation Treaty”, Fordham International Law Journal, Vol. 34, No. 595, 2011, p. 660Google Scholar.

80 ICRC Customary Law Study, above note 35, Rule 70, pp. 237–244; AP I, above note 26, Art. 35(2). For an overview of the history of this rule, see ICRC Commentary, above note 29, pp. 401–403.

81 ICRC Commentary, above note 29. Reference to the rule is specifically made in the Preamble of the 1997 Anti-personnel Mine Ban Convention.

82 ICRC Customary Law Study, above note 35, p. 240.

83 See, e.g., Cowling, M. G., “The Relationship between Military Necessity and the Principle of Superfluous Injury and Unnecessary Suffering in the Law of Armed Conflict”, South African Yearbook of International Law, Vol. 25, No. 131, 2000, p. 142Google Scholar; C. Moxley, J. Burroughs and J. Granoff, above note 79, pp. 618–619. And see ICRC Customary Law Study, above note 35, Rule 70, pp. 240–241, which also cites the ICJ, in its Nuclear Weapons Advisory Opinion, para. 78, defining this as “harm greater than that unavoidable to achieve legitimate military objectives”.

84 ICRC Commentary, above note 29, pp. 409–410. See also Simon O'Connor, “Nuclear Weapons and the Unnecessary Suffering Rule”, in G. Nystuen, S. Casey-Maslen and A. Golden Bersagel, above note 48, pp. 129–147.

85 ICRC Customary Law Study, above note 35, Rule 70, p. 240.

86 Ibid., p. 241.

87 Nuclear Weapons Advisory Opinion, above note 4, para. 78.

88 See S. O'Connor, above note 84, p. 129.

89 ICRC Customary Law Study, above note 35, Rule 70 n. 55, p. 244.

90 Helen Durham, ICRC Director of International Law and Policy, “The Use of Nuclear Weapons and International Humanitarian Law”, statement to the Vienna Conference on the Humanitarian Impact of Nuclear Weapons, available at: www.bmeia.gv.at/fileadmin/user_upload/Zentrale/Aussenpolitik/Abruestung/HINW14/Presentations/HINW14_S4_Presentation_Helen_Durham.pdf.

91 Letter dated 20 June 1995, above note 49, pp. 28–29. See also C. Moxley, J. Burroughs and J. Granoff, above note 79, p. 651.

92 1907 Hague Convention IV Respecting the Laws and Customs of War on Land, 18 October 1907 (entered into force 26 January 1910), Art. 23(e).

93 Adam Roberts and Richard Guelff, Documents on the Laws of War, 3rd ed., Oxford University Press, Oxford, 2000, p. 77 n. 3.

94 S. O'Connor, above note 84, p. 132.

95 Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, 17 July 1998 (entered into force 1 July 2002), Art. 8(2)(b)(xx); ICRC Customary Law Study, above note 35, Rule 70, p. 237.

96 ICRC Commentary, above note 29, para. 2126, p. 662.

97 ICRC Customary Law Study, above note 35, Rules 43, 44, pp. 143–151.

98 Ibid., Rule 43, pp. 144–145.

99 Ibid., Rule 44, p. 149.

100 ICRC Customary Law Study, above note 35, Rule 45, p. 151; AP I, above note 26, Art. 35(3). This rule is also reinforced in Art. 55(1) of AP I.

101 Specifically, Articles 35(3) and 55 of AP I, above note 26; see ICRC Customary Law Study, above note 35, pp. 154–155. For more views on this subject, see Erik Koppe, “Use of Nuclear Weapons and Protection of the Environment during International Armed Conflict” in G. Nystuen, S. Casey-Maslen and A. Golden Bersagel, above note 48, p. 259 n. 45. For a detailed critique, see Marsh, Jeremy, “Lex Lata or Lex Ferenda? Rule 45 of the ICRC Study on Customary International Humanitarian Law”, Military Law Review, Vol. 198, No. 116, 2008Google Scholar; Henckaerts, Jean-Marie, “Customary International Law: A Response to the US Comments”, International Review of the Red Cross, Vol. 89, No. 866, 2007, p. 482CrossRefGoogle Scholar.

102 S. Oeter, above note 29, p. 126; see also German Federal Ministry of Defence, Humanitarian Law in Armed Conflicts: Manual, Joint Service Regulation (ZDv) 15/2, DSK AV230100262, May 2013, p. 61.

103 ICRC Commentary, above note 29, p. 417. These terms are used in the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD Convention), and although they only apply in that context, “widespread” is understood to encompass an area of several hundred square kilometres and “severe” to involve “serious or significant disruption or harm to human life, natural and economic resources or other assets”. UN Environmental Protection Programme, Protection of the Environment during Armed Conflict: An Inventory and Analysis of International Law, 2009, p. 5. Under the ENMOD Convention, however, the terms are not a cumulative standard as is the case in AP I.

104 See the references cited at note 21.

105 I. Helfand, above note 22; British Medical Association, above note 11, pp. 92–100.

106 Ibid.

107 See S. Oeter, above note 29, p. 205. More generally, see Fritz Kalshoven, Belligerent Reprisals, 2nd ed., Brill Academic Publishers, Leiden, 2005.

108 S. Oeter, above note 29, p. 204.

109 ICRC Customary Law Study, above note 35, Rule 145, p. 513.

110 Ibid., pp. 520–523.

111 ICRC Customary Law Study, above note 35, Rule 145, pp. 515–518; S. Casey-Maslen, above note 48, pp. 178–179; C. Moxley, J. Burroughs and J. Granoff, above note 79, p. 661.

112 Greenwood, Christopher, “The Twilight of the Law of Belligerent Reprisals”, Netherlands Yearbook of International Law, Vol. 20, 1989, pp. 40–43CrossRefGoogle Scholar; Stuart Casey-Maslen, “The Use of Nuclear Weapons as Reprisals”, in G. Nystuen, S. Casey-Maslen and A. Golden Bersagel, above note 48, p. 184.

113 Ibid., p. 186.

114 A point also noted by F. Kalshoven, above note 107, p. 340. See also Hampson, Francoise, “Belligerent Reprisals and the 1977 Protocols to the Geneva Conventions of 1949”, International and Comparative Law Quarterly, Vol. 37, 1988, p. 823CrossRefGoogle Scholar.

115 See US Office of the General Counsel, Department of Defense Law of War Manual, June 2015, Chapter 18.18.4, p. 1099, highlighting many of the practical consequences to consider in the use of reprisals; C. Moxley, J. Burroughs and J. Granoff, above note 79, p. 664; ICRC Customary Law Study, above note 35, p. 522.

116 See Resolution 1 adopted by the Council of Delegates of the Red Cross and Red Crescent Movement, December 2011.

117 Statement of the Government of the United Kingdom to the ICJ, The Legality of the Threat or Use of Nuclear Weapons, June 1995, para. 370; Nuclear Weapons Advisory Opinion, above note 4, Dissenting Opinion of Judge Schwebel, pp. 320–321.

118 Nuclear Weapons Advisory Opinion, above note 4, para. 93.