International humanitarian law and nuclear weapons: Irreconcilable differences

Abstract

In 1996, the International Court of Justice issued an opinion that the use of nuclear weapons is “scarcely reconcilable” with international humanitarian law and concluded that nations have an obligation to pursue good-faith negotiations leading to disarmament. The 2010 Nuclear Non-Proliferation Treaty Review Conference reaffirmed the need for all states to comply with international humanitarian law, which governs the use of nuclear as well as conventional weapons. When the rules of war are applied to nuclear weapons, it becomes clear that these weapons cannot comply with international law. The effects of nuclear weapons are inherently uncontrollable and do not meet international criteria for discrimination between military and civilian targets, for proportionality, and for necessity. Arguments made by the United States as to why some uses of nuclear weapons could be lawful do not stand up to scrutiny. Nuclear weapon states should make immediate changes to any missions, deployments, and targeting policies and practices that facilitate the use of nuclear weapons. Not only does international law preclude the use of nuclear weapons, but it also precludes threats to use nuclear weapons.