Nuclear Weapons Are Illegal under International Humanitarian Law

March 27th, 2011 - by admin

Lawyers Committee on Nuclear Policy & The Simons Foundation – 2011-03-27 00:30:05

Vancouver Declaration Affirms the Incompatibility of
Nuclear Weapons with International Humanitarian Law

The Lawyers Committee on Nuclear Policy and The Simons Foundation

VANCOUVER (February 11, 2011) — Released today by The Simons Foundation and the International Association of Lawyers Against Nuclear Arms (IALANA) and signed by eminent experts in international law and diplomacy, the Vancouver Declaration affirms that nuclear weapons are incompatible with international humanitarian law, the law stating what is universally prohibited in warfare.

The declaration observes that with their uncontrollable blast, heat, and radiation effects, nuclear weapons are indeed weapons of mass destruction that by their nature cannot comply with fundamental rules forbidding the infliction of indiscriminate and disproportionate harm.

Entitled “Law’s Imperative for the Urgent Achievement of a Nuclear-Weapon-Free World,” the declaration concludes by calling on states to commence and conclude negotiations on the global prohibition and elimination of nuclear weapons as mandated by the legal obligation unanimously proclaimed by the International Court of Justice (ICJ) in 1996.

An annex to the declaration specifying the applicable law states: “It cannot be lawful to continue indefinitely to possess weapons which are unlawful to use or threaten to use, are already banned for most states, and are subject to an obligation of elimination.”

The many signatories include:
Christopher G. Weeramantry, former Vice President of the ICJ and current President of IALANA;
Mohammed Bedjaoui, who was ICJ President when it handed down its advisory opinion on nuclear weapons;

Louise Doswald-Beck, Professor of International Law, Graduate Institute of International and Development Studies, Geneva, and co-author of a major International Committee of the Red Cross study of international humanitarian law;

Ved Nanda, Evans University Professor, Nanda Center for International and Comparative Law, University of Denver Sturm College of Law;

Jayantha Dhanapala, former UN Under-Secretary-General for Disarmament Affairs; and

Gareth Evans, QC, former Foreign Minister of Australia who recently served as Co-Chair of the International Commission on Nuclear Non-proliferation and Disarmament.

The Simons Foundation and IALANA developed the declaration with the input of a conference convened by the two organizations in Vancouver, Canada, on February 10-11, 2011, that brought together some 30 experts in international law, diplomacy, and nuclear weapons.

Dr. Jennifer Simons, President of The Simons Foundation, said: “It is my hope, shared by IALANA, that in the debate about the road to zero, the Vancouver Declaration will serve to underline the essential element — the inhumanity and illegality of nuclear weapons — and hasten their elimination. The possession of nuclear weapons should be an international crime.”

Peter Weiss, IALANA Vice President, who has litigated international human rights cases in U.S. and other courts and advised governments on their submissions to the ICJ in the nuclear weapons case, commented: “Overwhelming problems, like ensuring the survival of the planet, cannot be resolved by law alone. But nor can they be dealt with by ignoring the law altogether. The drafters of the declaration, and those who have signed and will sign it, offer it to governments and civil society as a contribution to the debate. The horrific events occurring in Japan serve to accentuate the danger of continuing to live with the risk of exposing humanity to nuclear radiation, whether emanating from nuclear meltdown or nuclear bombs.”

Dr. John Burroughs, Executive Director of the New York-based Lawyers Committee on Nuclear Policy, the UN Office of IALANA, said: “President Obama and Prime Minister Singh last year jointly stated their support for ‘strengthening the six decade-old international norm of non-use of nuclear weapons.’ The Vancouver Declaration demonstrates that the non-use of nuclear weapons is not only wise policy; it is required by law.”

The declaration [Read it Below] and a list of initial signatories are online at

The Simons Foundation is a private charitable foundation committed to advancing positive change through education in peace, disarmament, international law and human security. Based in Vancouver, the Simons Foundation initiates and participates in major worldwide peace projects, convenes global leaders for high-level strategic and policy dialogues, sponsors important academic research through fellowships and chairs, acts as a major convenor of academic and public events and partners on policy-driven publications. For more information, visit

The International Association of Lawyers Against Nuclear Arms works to prevent nuclear war, abolish nuclear weapons, strengthen international law and encourage the peaceful resolution of international conflicts. For more information, visit and

John Burroughs, Executive Director
Lawyers Committee on Nuclear Policy
866 UN Plaza, Suite 4050
New York, NY 10017-1830 USA
tel 212 818 1861; fax 212 818 1857;

Vancouver Declaration, February 11, 2011*
Law’s Imperative for the Urgent Achievement of a Nuclear-Weapon-Free World

Nuclear weapons are incompatible with elementary considerations of humanity.

Human security today is jeopardized not only by the prospect of states’ deliberate use of nuclear weapons, but also by the risks and harms arising from their production, storage, transport, and deployment. They include environmental degradation and damage to health; diversion of resources; risks of accidental or unauthorized detonation caused by the deployment of nuclear forces ready for quick launch and inadequate command/control and warning systems; and risks of acquisition and use by non-state actors caused by inadequate securing of fissile materials and warheads.

Despite New START there are more than enough nuclear weapons to destroy the world. They must be abolished and the law has a pivotal role to play in their elimination. In 1996 the International Court of Justice (ICJ) spoke of “the nascent opinio juris” of “a customary rule specifically prohibiting the use of nuclear weapons.”

Fifteen years later, following the establishment of the International Criminal Court, the entry into force of the Chemical Weapons Convention and the achievement of treaty bans on landmines and cluster munitions, the legal imperative for non-use and elimination of nuclear weapons is more evident than ever.

Reasons advanced for the continuing existence of nuclear weapons, including military necessity and case-by-case analysis, were once used to justify other inhumane weapons. But elementary considerations of humanity persuaded the world community that such arguments were outweighed by the need to eliminate them. This principle must now be applied to nuclear weapons, which pose an infinitely greater risk to humanity.

We cannot forget that hundreds of population centers in several countries continue to be included in the targeting plans for nuclear weapons possessing many times the yield of the bombs dropped on Hiroshima and Nagasaki. The hibakusha — survivors of those bombings — have told us plainly, “No one else should ever suffer as we did.” The conventions banning chemical and biological weapons refer to them as “weapons of mass destruction.”

WMD are, by definition, contrary to the fundamental rules of international humanitarian law forbidding the infliction of indiscriminate harm and unnecessary suffering. As set out in the Annex to this Declaration, that label is best deserved by nuclear weapons with their uncontrollable blast, heat and radiation effects.

The ICJ’s declaration that nuclear weapons are subject to international humanitarian law was affirmed by the 2010 Nuclear Non-Proliferation Treaty (NPT) Review Conference. In its Final Document approved by all participating states, including the nuclear-weapon states, the Conference “expresses its deep concern at the catastrophic humanitarian consequences of any use of nuclear weapons, and reaffirms the need for all states at all times to comply with applicable international law, including international humanitarian law.”

It is unconscionable that nuclear-weapon states acknowledge their obligation to achieve the elimination of nuclear weapons but at the same time refuse to commence and then “bring to a conclusion,” as the ICJ unanimously mandated, “negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.”

In statements made during the 2010 NPT Review Conference, one hundred and thirty countries called for a convention prohibiting and eliminating nuclear weapons globally. And the Conference collectively affirmed in its Final Document “that all states need to make special efforts to establish the necessary framework to achieve and maintain a world without nuclear weapons,” and noted the “five-point proposal for nuclear disarmament of the Secretary-General of the United Nations, which proposes, inter alia, consideration of negotiations on a nuclear weapons convention or agreement on a framework of separate mutually reinforcing instruments, backed by a strong system of verification.”

An “absolute evil,” as the President of the ICJ called nuclear weapons, requires an absolute prohibition.

* Developed with the input of a conference convened February 10-11, 2011, in Vancouver, Canada, by The Simons Foundation and the International Association of Lawyers Against Nuclear Arms, entitled “Humanitarian Law, Human Security: The Emerging Framework for the Non-Use and Elimination of Nuclear Weapons,” in acknowledgement of the Simons Chairs in International Law and Human Security at Simon Fraser University.

Annex: The Law of Nuclear Weapons
Well-established and universally accepted rules of humanitarian law are rooted in both treaty and custom; are founded, as the ICJ said, on “elementary considerations of humanity”; and bind all states. They are set forth in armed service manuals on the law of armed conflict, and guide conventional military operations. They include:

•The prohibition of use of methods or means of attack of a nature to strike military objectives and civilians or civilian objects without distinction. As put by the ICJ, “states must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets.”

•The prohibition of use of methods or means of warfare of a nature to cause superfluous injury or unnecessary suffering.

• The Martens clause, which provides that in cases not covered by international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.

Nuclear weapons cannot be employed in compliance with those rules because their blast, heat, and radiation effects, especially the latter, are uncontrollable in space and time. The ICJ found that “radiation released by a nuclear explosion would affect health, agriculture, natural resources and demography over a very wide area” and that it “has the potential to damage the future environment, food and marine ecosystem, and to cause genetic defects and illness in future generations.”

Moreover, as the International Committee of the Red Cross has observed, the suffering caused by the use of nuclear weapons in an urban area “is increased exponentially by devastation of the emergency and medical assistance infrastructure.” Use of nuclear weapons in response to a prior nuclear attack cannot be justified as a reprisal.

The immunity of non-combatants to attack in all circumstances is codified in widely ratified Geneva treaty law and in the Rome Statute of the International Criminal Court, which provides inter alia that an attack directed against a civilian population is a crime against humanity.

The uncontrollability of effects additionally means that states cannot ensure that the force applied in an attack is no more than is necessary to achieve a military objective and that its effects on civilians, civilian objects, and the environment are not excessive in relation to the concrete and direct military advantage anticipated.

Other established rules of the law of armed conflict excluding use of nuclear weapons are the protection of neutral states from damage caused by warfare and the prohibition of use of methods or means of warfare that are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.

Recent studies have demonstrated that the detonation of a small fraction of the global nuclear stockpile (e.g., 100 warheads) in cities and the ensuing fire storms would generate smoke causing a plunge in average global temperatures lasting years. Agricultural production would plummet, resulting in extensive famine.

That nuclear weapons have not been detonated in war since World War II contributes to the formation of a customary prohibition on use. Further to this end, in 2010 the United States declared that “it is in the US interest and that of all other nations that the nearly 65-year record of nuclear non-use be extended forever,” and President Obama and Prime Minister Singh jointly stated their support for “strengthening the six decade-old international norm of non-use of nuclear weapons.”

Threat as well as use of nuclear weapons is barred by law. As the ICJ made clear, it is unlawful to threaten an attack if the attack itself would be unlawful.

This rule renders unlawful two types of threat: specific signals of intent to use nuclear weapons if demands, whether lawful or not, are not met; and general policies (“deterrence”) declaring a readiness to resort to nuclear weapons when vital interests are at stake. The two types come together in standing doctrines and capabilities of nuclear attack, preemptive or responsive, in rapid reaction to an imminent or actual nuclear attack.

The unlawfulness of threat and use of nuclear weapons reinforces the norm of non-possession. The NPT prohibits acquisition of nuclear weapons by the vast majority of states, and there is a universal obligation, declared by the ICJ and based in the NPT and other law, of achieving their elimination through good-faith negotiation.

It cannot be lawful to continue indefinitely to possess weapons which are unlawful to use or threaten to use, are already banned for most states, and are subject to an obligation of elimination.

Ongoing possession by a few countries of weapons whose threat or use is contrary to humanitarian law undermines that law, which is essential to limiting the effects of armed conflicts, large and small, around the world.

Together with the two-tier systems of the NPT and the UN Security Council, such a discriminatory approach erodes international law more generally; its rules should apply equally to all states. And reliance on “deterrence” as an international security mechanism is far removed from the world envisaged by the UN Charter in which threat or use of force is the exception, not the rule.