|II.||Substantive International Law - Second Part|
|10.||LAW OF ARMED CONFLICTS|
Legality of the Threat or Use
of Nuclear Weapons
Advisory Opinion of 8.7.1996
I.C.J. Reports 1996, p. 226
[pp. 239-240] 24. Some of the proponents of the illegality of the
use of nuclear weapons have argued that such use would violate the right to life
as guaranteed in Article 6 of the International Covenant on Civil and Political
Rights, as well as in certain regional instruments for the protection of human
rights. Article 6, paragraph 1, of the International Covenant provides as
follows: "Every human being has the inherent right to life. This right
shall be protected by law. No one shall be arbitrarily deprived of his life."
In reply, others contended that the International Covenant on Civil and Political Rights made no mention of war or weapons, and it had never been envisaged that the legality of nuclear weapons was regulated by that instrument. It was suggested that the Covenant was directed to the protection of human rights in peacetime, but that questions relating to unlawful loss of life in hostilities were governed by the law applicable in armed conflict.
25. The Court observes that the protection of the International Covenant of Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency. Respect for the right to life is not, however, such a provision. In principle, the right not arbitrarily to be deprived of one's life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of h Covenant itself.
[pp. 241-243] 27. In both their written and oral statements, some
States furthermore argued that any use of nuclear weapons would be unlawful by
reference to existing norms relating to the safeguarding and protection of the
environment, in view of their essential importance.
Specific references were made to various existing international treaties and instruments. These included Additional Protocol I of 1977 to the Geneva Conventions of 1949, Article 35, paragraph 3, of which prohibits the employment of "methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment"; and the Convention of 18 May 1977 on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, which prohibits the use of weapons which have "widespread, long-lasting or severe effects" on the environment (Art. 1). Also cited were Principle 21 of the Stockholm Declaration of 1972 and Principle 2 of the Rio Declaration of 1992 which express the common conviction of the States concerned that they have a duty
"to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction".
These instruments and other provisions relating to the protection and
safeguarding of the environment were said to apply at all times, in war as well
as in peace, and it was contended that they would be violated by the use of
nuclear weapons whose consequences would be widespread and would have
28. Other States questioned the binding legal quality of these precepts of environmental law; or, in the context of the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, denied that it was concerned at all with the use of nuclear weapons in hostilities; or, in the case of Additional Protocol 1, denied that they were generally bound by its terms, or recalled that they had reserved their position in respect of Article 35, paragraph 3, thereof.
It was also argued by some States that the principal purpose of
environmental treaties and norms was the protection of the environment in time
of peace. It was said that those treaties made no mention of nuclear weapons. It
was also pointed out that warfare in general, and nuclear warfare in particular,
were not mentioned in their texts and that it would be destabilizing to the rule
of law and to confidence in international negotiations if those treaties were
now interpreted in such a way as to prohibit the use of nuclear weapons.
29. The Court recognizes that the environment is under daily threat and that the use of nuclear weapons could constitute a catastrophe for the environment. The Court also recognizes that the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn. The existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment.
30. However, the Court is of the view that the issue is not whether the
treaties relating to the protection of the environment are or are not applicable
during an armed conflict, but rather whether the obligations stemming from these
treaties were intended to be obligations of total restraint during military
The Court does not consider that the treaties in question could have intended to deprive a State of the exercise of its right of self-defence under international law because of its obligations to protect the environment. Nonetheless, States must take environmental considerations into account when assessing what is necessary and proportionate in the pursuit of legitimate military objectives. Respect for the environment is one of the elements that go to assessing whether an action is in conformity with the principles of necessity and proportionality.
This approach is supported, indeed, by the terms of Principle 24 of the Rio Declaration, which provides that:
"Warfare 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, as necessary."
31. The Court notes furthermore that Articles 35, paragraph 3, and 55 of
Additional Protocol I provide additional protection for the environment. Taken
together, these provisions embody a general obligation to protect the natural
environment against widespread, long-term and severe environmental damage; the
prohibition of methods and means of warfare which are intended, or may be
expected, to cause such damage; and the prohibition of attacks against the
natural environment by way of reprisals.
These are powerful constraints for all the States having subscribed to these provisions.
32. General Assembly resolution 47/37 of 25 November 1992 on the "Protection
of the Environment in Times of Armed Conflict" is also of interest in this
context. It affirms the general view according to which environmental
considerations constitute one of the elements to be taken into account in the
implementation of the principles of the law applicable in armed conflict: it
states that "destruction of the environment, not justified by military
necessity and carried out wantonly, is clearly contrary to existing
international law". Addressing the reality that certain instruments are not
yet binding on all States, the General Assembly in this resolution "[a]ppeals
to all States that have not yet done so to consider becoming parties to the
relevant international conventions".
In its recent Order in the Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court's Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case, the Court stated that its conclusion was "without prejudice to the obligations of States to respect and protect the natural environment" (Order of 22 September 1995, I.C.J. Reports 1995, p. 306, para. 64). Although that statement was made in the context of nuclear testing, it naturally also applies to the actual use of nuclear weapons in armed conflict.
[p. 246] 46. Certain States asserted that the use of nuclear weapons in the conduct of reprisals would be lawful. The Court does not have to examine, in this context, the question of armed reprisals in time of peace, which are considered to be unlawful. Nor does it have to pronounce on the question of belligerent reprisals save to observe that in any case any right of recourse to such reprisals would, like self-defense, be governed inter alia he principle of proportionality.
[pp. 247-248] 52. The Court notes by way of introduction that international customary and treaty law does not contain any specific prescription authorizing the threat or use of nuclear weapons or any other weapon in general or in certain circumstances, in particular those of the exercise of legitimate self-defence. Nor, however, is there any principle or rule of international law which would make the legality of the threat or use of nuclear weapons or of any other weapons dependent on a specific authorization. State practice shows that the illegality of the use of certain weapons as such does not result from an absence of authorization but, on the contrary, is formulated in terms of prohibition.
53. The Court must therefore now examine whether there is any prohibition of
recourse to nuclear weapons as such; it will first ascertain whether there is a
conventional prescription to this effect.
54. In this regard, the argument has been advanced that nuclear weapons should be treated in the same way as poisoned weapons. In that case, they would be prohibited under:
(a) the Second Hague Declaration of 29 July 1899, which prohibits "the use of projectiles the object of which is the diffusion of asphyxiating or deleterious gases"; (b) Article 23 (a) of the Regulations respecting the laws and customs of war on land annexed to the Hague Convention IV of 18 October 1907, whereby "it is especially forbidden: ... to employ poison or poisoned weapons"; and (c) the Geneva Protocol of 17 June 1925 which prohibits "the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids, materials or devices".
55. The Court will observe that the Regulations annexed to the Hague
Convention IV do not define what is to be understood by "poison or poisoned
weapons" and that different interpretations exist on the issue. Nor does
the 1925 Protocol specify the meaning to be given to the term 11 analogous
materials or devices". The terms have been understood, in the practice of
States, in their ordinary sense as covering weapons whose prime, or even
exclusive, effect is to poison or asphyxiate. This practice is clear, and the
parties to those instruments have not treated them as referring to nuclear
56. In view of this, it does not seem to the Court that the use of nuclear weapons can be regarded as specifically prohibited on the basis of the above-mentioned provisions of the Second Hague Declaration of 1899, the Regulations annexed to the Hague Convention IV of 1907 or the 1925 Protocol (see paragraph 54 above).
57. The pattern until now has been for weapons of mass destruction to be declared illegal by specific instruments. The most recent such instruments are the Convention of 10 April 1972 on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction - which prohibits the possession of bacteriological and toxic weapons and reinforces the prohibition of their use - and the Convention of 13 January 1993 on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction - which prohibits all use of chemical weapons and requires the destruction of existing stocks. Each of these instruments has been negotiated and adopted in its own context and for its own reasons .The Court does not find any specific prohibition f recourse to nuclear weapons in treaties expressly prohibiting the use of certain weapons of mass destruction.
[pp. 252-255] 60. Those States that believe that recourse to nuclear
weapons is illegal stress that the conventions that include various rules
providing for the limitation or elimination of nuclear weapons in certain areas
(such as the Antarctic Treaty of 1959 which prohibits the deployment of nuclear
weapons in the Antarctic, or the Treaty of Tlatelolco of 1967 which creates a
nuclear-weapon-free zone in Latin America) or the conventions that apply certain
measures of control and limitation to the existence of nuclear weapons (such as
the 1963 Partial Test-Ban Treaty or the Treaty on the Non-Proliferation of
Nuclear Weapons) all set limits to the use of nuclear weapons. In their view,
these treaties bear witness, in their own way, to the emergence of a rule of
complete legal prohibition of all uses of nuclear weapons.
61. Those States who defend the position that recourse to nuclear weapons is legal in certain circumstances see a logical contradiction in reaching such a conclusion. According to them, those Treaties, such as the Treaty on the Non-Proliferation of Nuclear Weapons, as well as Security Council resolutions 255 (1968) and 984 (1995) which take note of the security assurances given by the nuclear-weapon States to the non-nuclear-weapon States in relation to any nuclear aggression against the latter, cannot be understood as prohibiting the use of nuclear weapons, and such a claim is contrary to the very text of those instruments. For those who support the legality in certain circumstances of recourse to nuclear weapons, there is no absolute prohibition against the use of such weapons. The very logic and construction of the Treaty on the Non-Proliferation of Nuclear Weapons, they assert, confirm this. This Treaty, whereby, they contend, the possession of nuclear weapons by the five nuclear-weapon States has been accepted, cannot be seen as a treaty banning their use by those States; to accept the fact that those States possess nuclear weapons is tantamount to recognizing that such weapons may be used in certain circumstances. Nor, they contend, could the security assurances given by the nuclear-weapon States in 1968, and more recently in connection with the Review and Extension Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons in 1995, have been conceived without its being supposed that there were circumstances in which nuclear weapons could be used in a lawful manner. For those who defend the legality of the use, in certain circumstances, of nuclear weapons, the acceptance of those instruments by the different non-nuclear-weapon States confirms and reinforces the evident logic upon which those instruments are based.
62. The Court notes that the treaties dealing exclusively with acquisition, manufacture, possession, deployment and testing of nuclear weapons, without specifically addressing their threat or use, certainly point to an increasing concern in the international community with these weapons; the Court concludes from this that these treaties could therefore be seen as foreshadowing a future general prohibition of the use of such weapons, but they do not constitute such a prohibition by themselves. As to the treaties of Tlatelolco and Rarotonga and their Protocols, and also the declarations made in connection with the indefinite extension of the Treaty on the Non-Proliferation of Nuclear Weapons, it emerges from these instruments that:
(a) a number of States have undertaken not to use nuclear weapons in specific zones (Latin America; the South Pacific) or against certain other States (non-nuclear-weapon States which are parties to the Treaty on the Non-Proliferation of Nuclear Weapons); (b) nevertheless, even within this framework, the nuclear-weapon States have reserved the right to use nuclear weapons in certain circumstances; and (c) these reservations met with no objection from the parties to the Tlatelolco or Rarotonga Treaties or from the Security Council.
63. These two treaties, the security assurances given in 1995 by the nuclear-weapon States and the fact that the Security Council took note of them with satisfaction, testify to a growing awareness of the need to liberate the community of States and the international public from the dangers resulting from the existence of nuclear weapons. The Court moreover notes the signing, even more recently, on 15 December 1995, at Bangkok, of a Treaty on the Southeast Asia Nuclear-Weapon-Free Zone, and on 11 April 1996, at Cairo, of a treaty on the creation of a nuclear-weapons-free zone in Africa. It does not, however, view these elements as amounting to a comprehensive and universal conventional prohibition e use, or the threat of use, of those weapons as such.
64. The Court will now turn to an examination of customary international law
to determine whether a prohibition of the threat or use of nuclear weapons as
such flows from that source of law. As the Court has stated, the substance of
that law must be "looked for primarily in the actual practice and opinio
juris of States" (Continental Shelf (Libyan Arab Jamahiriya/Malta),
Judgment, I.C.J. Reports 1985, p. 29, para.27).
65. States which hold the view that the use of nuclear weapons is illegal have endeavored to demonstrate the existence of a customary rule prohibiting this use. They refer to a consistent practice of non-utilization of nuclear weapons by States since 1945 and they would see in that practice the expression of an opinio juris on the part of those who possess such weapons.
66. Some other States, which assert the legality of the threat and use of nuclear weapons in certain circumstances, invoked the doctrine and practice of deterrence in support of their argument. They recall that they have always, in concert with certain other States, reserved the right to use those weapons in the exercise of the right to self-defense against an armed attack threatening their vital security interests. In their view, if nuclear weapons have not been used since 1945, it is not on account of an existing or nascent custom but merely because circumstances that might justify their use have fortunately not arisen.
67. The Court does not intend to pronounce here upon the practice known as the "policy of deterrence". It notes that it is a fact that a number of States adhered to that practice during the greater part of the Cold War and continue to adhere to it. Furthermore, the members of the international community are profoundly divided on the matter of whether non-recourse to nuclear weapons over the past 50 years constitutes the expression of an opinio juris. Under these circumstances the Court does not consider itself able to find that there is such an opinio juris.
68. According to certain States, the important series of General Assembly
resolutions, beginning with resolution 1653 (XVI) of 24 November 1961, that deal
with nuclear weapons and that affirm, with consistent regularity, the illegality
of nuclear weapons, signify the existence of a rule of international customary
law which prohibits recourse to those weapons. According to other States,
however, the resolutions in question have no binding character on their own
account and are not declaratory of any customary rule of prohibition of nuclear
weapons; some of these States have also pointed out that this series of
resolutions not only did not meet with the approval of all of the nuclear-weapon
States but of many other States as well.
69. States which consider that the use of nuclear weapons is illegal indicated that those resolutions did not claim to create any new rules, but were confined to a confirmation of customary law relating to the prohibition of means or methods of warfare which, by their use, overstepped the bounds of what is permissible in the conduct of hostilities. In their view, the resolutions in question did no more than apply to nuclear weapons the existing rules of international law applicable in armed conflict; they were no more than the "envelope" or instrumentum containing certain pre-existing customary rules of international law. For those States it is accordingly of little importance that the instrumentum should have occasioned negative votes, which cannot have the effect of obliterating those customary rules which have been confirmed by treaty law.
70. The Court notes that General Assembly resolutions, even if they are not binding, may sometimes have normative value. They can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinio juris. To establish whether this is true of a given General Assembly resolution, it is necessary to look at its content and the conditions of its adoption; it is also necessary to see whether an opinio juris exists as to its normative character. Or a series of resolutions may show the gradual evolution of the opinio juris required for the establishment of a new rule.
71. Examined in their totality, the General Assembly resolutions put before
the Court declare that the use of nuclear weapons would be "a direct
violation of the Charter of the United Nations"; and in certain
formulations that such use "should be prohibited". The focus of these
resolutions has sometimes shifted to diverse related matters; however, several
of the resolutions under consideration in the present case have been adopted
with substantial numbers of negative votes and abstentions; thus, although those
resolutions are a clear sign of deep concern regarding the problem of nuclear
weapons, they still fall short of establishing the existence of an opinio juris
on the illegality of the use of such weapons.
72. The Court further notes that the first of the resolutions of the General Assembly expressly proclaiming the illegality of the use of nuclear weapons, resolution 1653 (XVI) of 24 November 1961 (mentioned in subsequent resolutions), after referring to certain international declarations and binding agreements, from the Declaration of St. Petersburg of 1868 to the Geneva Protocol of 1925, proceeded to qualify the legal nature of nuclear weapons, determine their effects, and apply general rules of customary international law to nuclear weapons in particular. That application by the General Assembly of general rules of customary law to the particular case of nuclear weapons indicates that, in its view, there was no specific rule of customary law which prohibited the use of nuclear weapons; if such a rule had existed, the General Assembly could simply have referred to it and would not have needed to undertake such an exercise of legal qualification.
73. Having said this, the Court points out that the adoption each year by the General Assembly, by a large majority, of resolutions recalling the content of resolution 1653 (XVI), and requesting the member States to conclude a convention prohibiting the use of nuclear weapons in any circumstance, reveals the desire of a very large section of the international community to take, by a specific and express prohibition of the use of nuclear weapons, a significant step forward along the road to complete nuclear disarmament. The emergence, as lex lata, of a customary rule specifically prohibiting the use of nuclear weapons as such is hampered by the continuing tensions between the nascent opinio juris on the one hand, and the still strong adherence to the practice of deterrence on the other.
[pp. 256-260] 74. The Court not having found a conventional rule of
general scope, or nor a customary rule specifically proscribing the threat or
use of nuclear weapons per se, it will now deal with the question
whether recourse to nuclear weapons must be considered as illegal in the light
of the principles and rules of international humanitarian law applicable in
armed conflict and of the law of neutrality.
75. A large number of customary rules have been developed by t practice of States and are an integral part of the international law relevant to the question posed. The "laws and customs of war" - as they were traditionally called - were the subject of efforts at codification undertaken in The Hague (including the Conventions of 1899 and 1907), and were based partly upon the St. Petersburg Declaration of 1868 as well as the results of the Brussels Conference of 1874. This "Hague Law" and, more particularly, the Regulations Respecting the Laws and Customs of War on Land, fixed the rights and duties of belligerents in their conduct of operations and limited the choice of methods and means of injuring the enemy in an international armed conflict. One should add to this the "Geneva Law" (the Conventions of 1864, 1906, 1929 and 1949), which protects the victims of war and aims to provide safeguards for disabled armed forces personnel and persons not taking part in the hostilities. These two branches of the law applicable in armed conflict have become so closely interrelated that they are considered to have gradually formed one single complex system, known today as international humanitarian law. The provisions of the Additional Protocols of 1977 give expression and attest to the unity and complexity of that law.
76. Since the turn of the century, the appearance of new means of combat has - without calling into question the longstanding principles and rules of international law - rendered necessary some specific prohibitions of the use of certain weapons, such as explosive projectiles under 400 grammes, dum-dum bullets and asphyxiating gases. Chemical and bacteriological weapons were then prohibited by the 1925 Geneva Protocol. More recently, the use of weapons producing "non-detectable fragments", of other types of "mines, booby traps and other devices", and of "incendiary weapons", was either prohibited or limited, depending on the case, by the Convention of 10 October 1980 on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects. The provisions of the Convention on "mines, booby traps and other devices" have just been amended, on 3 May 1996, and now regulate in greater detail, for example, the use of anti-personnel land mines.
77. All this shows that the conduct of military operations is governed by a body of legal prescriptions. This is so because "the right of belligerents to adopt means of injuring the enemy is not unlimited" as stated in Article 22 of the 1907 Hague Regulations relating to the laws and customs of war on land. The St. Petersburg Declaration had already condemned the use of weapons "which uselessly aggravate the suffering disabled men or make their death inevitable". The aforementioned Regulations relating to the laws and customs of war on land, annexed to the Hague Convention IV of 1907, prohibit the use of "arms, projectiles, or material calculated to cause unnecessary suffering" (Art. 23).
78. The cardinal principles contained in the texts constituting the fabric
of humanitarian law are the following. The first is aimed at the protection of
the civilian population and civilian objects and establishes the distinction
between combatants and non-combatants; 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. According to the second
principle, it is prohibited to cause unnecessary suffering to combatants: it is
accordingly prohibited to use weapons causing them such harm or uselessly
aggravating their suffering. In application of that second principle, States do
not have unlimited freedom of choice of means in the weapons they use.
The Court would likewise refer, in relation to these principles, to the Martens Clause, which was first included in the Hague Convention 11 with Respect to the Laws and Customs of War on Land of 1899 and which has proved to be an effective means of addressing the rapid evolution of military technology. A modern version of that clause is to be found in Article 1, paragraph 2, of Additional Protocol I of 1977, which reads as follows:
"In cases not covered by this Protocol or by other 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."
In conformity with the aforementioned principles, humanitarian law, at a
very early stage, prohibited certain types of weapons either because of their
indiscriminate effect on combatants and civilians or because of the unnecessary
suffering caused to combatants, that is to say, a harm greater than that
unavoidable to achieve legitimate military objectives. If an envisaged use of
weapons would not meet the requirements of humanitarian law, a threat to engage
in such use would also be contrary to that law.
79. It is undoubtedly because a great many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and "elementary considerations of humanity" as the Court put it in its Judgment of 9 April 1949 in the Corfu Channel case (I.C.J. Reports 1949, p. 22), that the Hague and Geneva Conventions have enjoyed a broad accession. Further these fundamental rules are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law.
80. The Nuremberg International Military Tribunal had already found in 1945 that the humanitarian rules included in the Regulations annexed to the Hague Convention IV of 1907 "were recognized by all civilized nations and were regarded as being declaratory of the laws and customs of war" (Trial of the Major War Criminals, 14 November 1945 - 1 October 1946, Nuremberg, 1947, Vol. 1, p. 254).
81. The Report of the Secretary-General pursuant to paragraph 2 of Security Council resolution 808 (1993), with which he introduced the Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, and which was unanimously approved by the Security Council (resolution 827 (1993)), stated:
"In the view of the Secretary-General, the application of the principle nullum crimen sine lege requires that the international tribunal should apply rules of international humanitarian law which are beyond any doubt part of customary law ...
The part of conventional international humanitarian law which has beyond doubt become part of international customary law is the law applicable in armed conflict as embodied in: the Geneva Conventions of 12 August 1949 for the Protection of War Victims; the Hague Convention (IV) Respecting the Laws and Customs of War on Land and the Regulations annexed thereto of 18 October 1907; the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948; and the Charter of the International Military Tribunal of 8 August 1945."
82. The extensive codification of humanitarian law and the extent of the
accession to the resultant treaties, as well as the fact that the denunciation
clauses that existed in the codification instruments have never been used, have
provided the international community with a corpus of treaty rules the great
majority of which had already become customary and which reflected the most
universally recognized humanitarian principles. These rules indicate the normal
conduct and behaviour expected of States.
83. It has been maintained in these proceedings that these principles and rules of humanitarian law are part of jus cogens as defined in Article 53 of the Vienna Convention on the Law of Treaties of 23 May 1969. The question whether a norm is part of the jus cogens relates to the legal character of the norm. The request addressed to the Court by the General Assembly raises the question of the applicability of the principles and rules of humanitarian law in cases of recourse to nuclear weapons and the consequences of that applicability for the legality of recourse to these weapons. But it does not raise the question of the character of the humanitarian law which would apply to the use of nuclear weapons. There is, therefore, no need for the Court to pronounce on this matter.
84. Nor is there any need for the Court to elaborate on the question of the applicability of Additional Protocol I of 1977 to nuclear weapons. It need only observe that while, at the Diplomatic Conference of 1974-1977, there was no substantive debate on the nuclear issue and no specific solution concerning this question was put forward, Additional Protocol I in no way replaced the general customary rules applicable to all means and methods of combat including nuclear weapons. In particular, the Court recalls that all States are bound by those rules in Additional Protocol I which, when adopted, were merely the expression of the pre-existing customary law, such as the Martens Clause, reaffirmed in the first article of Additional Protocol 1. The fact that certain types of weapons were not specifically dealt with by the 1974-1977 Conference does not permit the drawing of any legal conclusions relating to the substantive issues which the use of such weapons would raise.
85. Turning now to the applicability of the principles and rules of
humanitarian law to a possible threat or use of nuclear weapons, the Court notes
that doubts in this respect have sometimes been voiced on the ground that these
principles and rules had evolved prior to the invention of nuclear weapons and
that the Conferences of Geneva of 1949 and 1974-1977 which respectively adopted
the four Geneva Conventions of 1949 and the two Additional Protocols thereto did
not deal with nuclear weapons specifically. Such views, however, are only held
by a small minority. In the view of the vast majority of States as well as
writers there can be no doubt as to the applicability of humanitarian law to
86. The Court shares that view. Indeed, nuclear weapons were invented after most of the principles and rules of humanitarian law applicable in armed conflict had already come into existence; the Conferences of 1949 and 1974-1977 left these weapons aside, and there is a qualitative as well as quantitative difference between nuclear weapons and all conventional arms. However, it cannot be concluded from this that the established principles and rules of humanitarian law applicable in armed conflict did not apply to nuclear weapons. Such a conclusion would be incompatible with the intrinsically humanitarian character of the legal principles in question which permeates the entire law of armed conflict and applies to all forms of warfare and to all kinds of weapons, those of the past, those of the present and those of the future. In this respect it seems significant that the thesis that the rules of humanitarian law do not apply to the new weaponry, because of the newness of the latter, has not been advocated in the present proceedings. On the contrary, the newness of nuclear weapons has been expressly rejected as an argument against the application to them of international humanitarian law:
"In general, international humanitarian law bears on the threat or use of nuclear weapons as it does of other weapons.
International humanitarian law has evolved to meet contemporary circumstances, and is not limited in its application to weaponry of an earlier time. The fundamentalprinciples of this law endure: to mitigate and circumscribe the cruelty of war for humanitarian reasons." (New Zealand, Written Statement, p. 15, paras. 63-64.)
None of the statements made before the Court in any way advocated a freedom to use nuclear weapons without regard to humanitarian constraints. Quite the reverse; it has beenexplicitly stated,
"Restrictions set by the rules applicable to armed conflicts in respect of means and methods of warfare definitely also extend to nuclear weapons" (Russian Federation, CR95/29, p. 52);
"So far as the customary law of war is concerned, the United Kingdom has always accepted that the use of nuclear weapons is subject to the generalprinciples of the jus in bello" (United Kingdom, CR95/34, p. 45);
"The United States has long shared the view that the law of armed conflict governs the use of nuclear weapons - just as it governs the use of conventional weapons" (United States of America, CR 95/34, p. 85).
87. Finally the Court points to the Martens Clause, whose continuing existence and applicability is not to be doubted, as an affirmation that the principles and rules of humanitarian law apply to nuclear weapons.
[pp. 261-263] 89. The Court finds that as in the case of the principles of humanitarian law applicable in armed conflict, international law leaves no doubt that the principle of neutrality, whatever its content, which is of a fundamental character similar to that of the humanitarian principles and rules, is applicable (subject to the relevant provisions of the United Nations Charter), to all international armed conflict, whatever type of weapons might be used.
90. Although the applicability of the principles and rules of humanitarian
law and of the principle of neutrality to nuclear weapons is hardly disputed,
the conclusions to be drawn from this applicability are, on the other hand,
91. According to one point of view, the fact that recourse to nuclear weapons is subject to and regulated by the law of armed conflict does not necessarily mean that such recourse is as such prohibited. As one State put it to the Court:
"Assuming that a State's use of nuclear weapons meets the requirements of self-defence, it must then be considered whether it conforms to the fundamental principles of the law of armed conflict regulating the conduct of hostilities" (United Kingdom, Written Statement, p. 40, para. 3.44);
"the legality of the use of nuclear weapons must therefore be assessed in the light of the applicable principles of international law regarding the use of force and the conduct of hostilities, as is the case with other methods and means of warfare" (ibid., p. 75, para. 4.2 (3));
"The reality ... is that nuclear weapons might be used in a wide variety of circumstances with very different results in terms of likely civilian casualties. In some cases, such as the use of a low yield nuclear weapon against warships on the High Seas or troops in sparsely populated areas, it is possible to envisage a nuclear attack which caused comparatively few civilian casualties., It is by no means the case that every use of nuclear weapons against a military objective would inevitably cause very great collateral civilian casualties." (Ibid., p. 53, para. 3.70; see also United States of America, CR95/ 34, pp. 89-90)
92. Another view holds that recourse to nuclear weapons could never
be compatible with the principles and rules of humanitarian law and is therefore
prohibited. In the event of their use, nuclear weapons would in all
circumstances be unable to draw any distinction between the civilian population
and combatants, or between civilian objects and military objectives, and their
effects, largely uncontrollable, could not be restricted, either in time or in
space, to lawful military targets. Such weapons would kill and destroy in a
necessarily indiscriminate manner, on account of the blast, heat and radiation
occasioned by the nuclear explosion and the effects induced; and the number of
casualties which would ensue would be enormous. The use of nuclear weapons would
therefore be prohibited in any circumstance. notwithstanding the absence of any
explicit conventional prohibition. That view lay at the basis of the assertions
by certain States before the Court that nuclear weapons are by their nature
illegal under customary international law, by virtue of the fundamental,
principle of humanity.
93. A similar view has been expressed with respect to the effects of the principle of neutrality. Like the principles and rules of humanitarian law, that principle has therefore been considered by some to rule out the use of a weapon the effects of which simply cannot be contained within the territories of the contending States.
94. The Court would observe that none of the States advocating the legality of the use of nuclear weapons under certain circumstances, including the "clean" use of smaller, low yield, tactical nuclear weapons, has indicated what, supposing such limited use were feasible, would be the precise circumstances justifying such use; nor whether such limited use would not tend to escalate into the all-out use of high, yield nuclear Weapons. This being so, the Court does not consider that it has a sufficient basis for a determination on the validity of this view.
95. Nor can the Court make a determination on the validity of the
view that the recourse to nuclear weapons would be illegal in any circumstance
owing to their inherent and total incompatibility with the law applicable in
armed conflict. Certainly, as the Court has already indicated, the principles
and rules of law applicable in armed conflict - at the heart of which is the
overriding consideration of humanity - make the conduct of armed hostilities
subject to a number of strict requirements. Thus. methods and means of warfare,
which would preclude any distinction between civilian and military targets, or
which would result in unnecessary suffering to combatants, are prohibited. In
view of the unique characteristics of nuclear weapons, to which the Court has
referred above, the, use of such weapons in fact seems scarcely reconcilable
with respect for such requirements. Nevertheless, the Court considers that it
does not have sufficient elements to enable it to conclude with certainty that
the use of nuclear weapons would necessarily be at variance with the principles
and rules of law applicable in armed conflict in any circumstance.
96. Furthermore, the Court cannot lose sight of the fundamental right of every State to survival, and thus its right to resort to self-defence, in accordance with Article 51 of the Charter, when its survival is at stake.
Nor can it ignore the practice referred to as ""policy of
deterrence", to which an appreciable section of the international community
adhered for many years. The Court also notes the reservations which certain
nuclear-weapon States have appended to the undertakings they have given, notably
under the Protocols to the Treaties of Tlatelolco and Rarotonga, and also under
the declarations made by them in connection with the extension of the Treaty on
the Non-Proliferation of Nuclear Weapons, not to resort to such weapons.
97. Accordingly, in view of the present state of international law viewed as a whole, as examined above by the Court, and of the elements of fact at its disposal, the Court is led to observe that it cannot reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of self-defense, in which its very survival would be at stake.
[pp. 269-270 Decl. Bedjaoui] 8. This very important question of nuclear weapons proved alas to be an area in which the Court had to acknowledge that there is no immediate and clear answer to the question put to it. It is to be hoped that the international community will give the Court credit for having carried out its mission - even if its reply may seem unsatisfactory - and will endeavour as quickly as possible to correct the imperfections of an international law which is ultimately no more than the creation of the States themselves. The Court will at least have had the merit of pointing out these imperfections and calling upon international society to correct them.
9. As its Advisory Opinion shows, at no time did the Court lose sight of the fact that nuclear weapons constitute a potential means of destruction of all mankind. Not for a moment did it fail to take into account this eminently crucial factor for the survival of mankind. The moral dilemma which confronted individual consciences finds many a reflection in this Opinion. But the Court could obviously not go beyond what the law says. It could not say what the law does not say.
10. Accordingly, at the end of its Opinion, the Court confined itself to stating the situation, finding itself unable to do any more than this. There are some who will inevitably interpret operative paragraph 2 E as contemplating the possibility of States using nuclear weapons in exceptional circumstances. For my part, and in the light of the foregoing, I feel obliged in all honesty to construe that paragraph differently, a fact which has enabled me to support the text. My reasons are set out below.
11. I cannot sufficiently emphasize that the Court's inability to go beyond this statement of the situation can in no way be interpreted to mean that it is leaving the door ajar to recognition of the legality of the threat or use of nuclear weapons.
[pp. 272-273 Decl. Bedjaoui] 19. International humanitarian
law is a particularly exacting corpus of rules, and these rules are meant to be
applied in all circumstances. The Court has fully recognized this fact.
20. Nuclear weapons can be expected - in the present state of scientific development at least - to cause indiscriminate victims among combatants and non-combatants alike, as well as unnecessary suffering among both categories. By its very nature the nuclear weapon, a blind weapon, therefore has a destabilizing effect on humanitarian law, the law of discrimination which regulates discernment in the use of weapons. Nuclear weapons, the ultimate evil, destabilize humanitarian law which is the law of the lesser evil. The existence of nuclear weapons is therefore a major challenge to the very existence of humanitarian law, not to mention their long-term harmful effects on the human environment, in respecting which the right to life may be exercised. Until scientists are able to develop a "clean" nuclear weapon which would distinguish between combatants and non-combatants, nuclear weapons will clearly have indiscriminate effects and constitute an absolute challenge to humanitarian law. Atomic warfare and humanitarian law therefore appear to be mutually exclusive, the existence of the one automatically implying the non-existence of the other.
21. I have no doubt that most of the principles and rules of humanitarian
law and, in any event, the two principles, one of which prohibits the use of
weapons with indiscriminate effects and the other the use of arms causing
unnecessary suffering, form part of jus cogens. The Court raised this
question in the present Opinion; but it nevertheless stated that it did not have
to make a finding on the point since the question of the nature of the
humanitarian law applicable to nuclear weapons did not fall within the framework
of the request addressed to it by the General Assembly of the United Nations.
Nonetheless, the Court expressly stated the view that these fundamental rules
constitute "intransgressible principles of international customary
22. A State's right to survival is also a fundamental law, similar in many respects to a "natural" law. However, self-defence - if exercised in extreme circumstances in which the very survival of a State is in question - cannot produce a situation in which a State would exonerate itself from compliance with the "intransgressible" norms of international humanitarian law. In certain circumstances, therefore, a relentless opposition can arise, a head-on collision of fundamental principles, neither one of which can be reduced to the other. The fact remains that the use of nuclear weapons by a State in circumstances in which its survival is at stake risks in its turn endangering the survival of all mankind, precisely because of the inextricable link between terror and escalation in the use of such weapons. It would thus be quite foolhardy unhesitatingly to set the survival of a State above all other considerations, in particular above survival of mankind itself.
[p. 275 Decl. Herczegh] In my view, however, in the present state of international law it would have been possible to formulate in the Advisory Opinion a more specific reply to the General Assembly's request, one less burdened with uncertainty and reticence. In the fields where certain acts are not totally and universally prohibited "as such", the application of the general principles of law makes it possible to regulate the behaviour of subjects of the international legal order, obliging or authorizing them, as the case may be, to act or refrain from acting in one way or another. The fundamental principles of international humanitarian law, rightly emphasized in the reasons of the Advisory Opinion, categorically and unequivocally prohibit the use of weapons of mass destruction, including nuclear weapons. International humanitarian law does not recognize any exceptions to these principles.
[p. 289 S.O. Guillaume] Customary humanitarian law thus contains
only one absolute prohibition: the prohibition of so-called "blind"
weapons which are incapable of distinguishing between civilian targets and
military targets. But nuclear weapons obviously do not necessarily fall into
Furthermore, this law implies comparisons. The collateral damage caused to civilian populations must not be "excessive" in relation to "the military advantage anticipated". The suffering caused to combatants must not be "unnecessary", i.e. it must not cause, in the words of the Court itself, "a harm greater than that unavoidable to achieve legitimate military objectives" (para. 78).
Hence nuclear weapons could not be regarded as illegal by the sole reason of
the suffering which they are likely to cause. Such suffering must still be
compared with the "military advantage anticipated" or with the "military
With regard to nuclear weapons of mass destruction, it is clear however that the damage which they are likely to cause is such that their use could not be envisaged except in extreme cases.
[pp. 294-295 S.O. Ranjeva] The illegality of the threat or use of
nuclear weapons will have been affirmed, for the first time, in the
international jurisprudence inaugurated by this Advisory Opinion requested by
the General Assembly of the United Nations. If the first clause of operative
paragraph 2 E had been worded differently, it would have kept alive the doubt
about the justification of this principle of positive law, for a superficial
comparison of the two declaratory paragraphs 2 A and 2 B could have led to
error. To have regarded the statements contained in these paragraphs as of equal
weight would presumably have excluded either an affirmative or a negative answer
to the question put in the resolution referring the matter to the Court. The
Court's true answer is given in paragraph 2 E, more accurately in the first
clause thereof, while paragraph 104 of the reasons provides the key to the
reading of the reasons and the operative part in the sense that this paragraph 2
E cannot be detached from paragraphs 2 A, 2 C, 2 D and 2 F. In my view, the
adverb "generally" means: in the majority of cases and in the
doctrine; its grammatical function is to determine with emphasis the statement
made in the main proposition. By using a determinative adverb the Opinion
dismisses any other interpretation which would have resulted from the use of a
dubitative adverb such as "apparently", "perhaps" or "no
doubt". Lastly, the conditional mood of the verb "to be" used in
making this statement expresses two ideas: on the one hand a probability, i.e. a
characteristic which can be more easily characterized than some other
characteristic; and on the other hand a supposition about the future which it is
hoped will never come about. These reasons, producing the conclusion of the
illegality of the threat or use of nuclear weapons, merely confirm, in my view,
the state of positive law.
The absence of a direct and specific reference to nuclear weapons cannot be used to justify the legality, even indirect, of the threat or use of nuclear weapons. The wording of the first clause of operative paragraph 2 E excludes any limitation to the general principle of illegality. On the assumption that the intention is to assign a dubitative value to the adverb "generally", no conclusion implying modification of the scope of the illegality could withstand legal analysis. When "generally" is taken as an adverb of quantity, the natural meaning of the word excludes any temptation to infer an idea of legality, which is contrary to the fundamental principle stated. The use of the adverb "generally" is due only to an indirect appeal by the Court for the consequences of the analyses contained in paragraphs 70, 71 and 72 of the reasons to be drawn by those to whom the Opinion is addressed. In other words, the current law, which the Opinion has stated, wants consolidation. The absence of a specific reference to nuclear weapons in fact has more to do with considerations of diplomatic, technical or political expediency than with juridical considerations. It would thus seem necessary to analyse the international practice in terms of law, in order to confirm this interpretation.
[pp. 301-302 S.O. Ranjeva] In my view, the second clause of
paragraph 2 E raises difficulties of interpretation by virtue of the problem of
its intrinsic coherence in relation to the rules of the law of armed conflict
themselves, although its positive aspect must be emphasized: the principle that
the exercise of selfdefence is subject to the rule of law.
Paragraph 2 E deals with the law of armed conflict and with humanitarian law, the second branch of law applicable to the threat or use of nuclear weapons (see para. 34). The law of armed conflict is a matter of written law, while the so-called Martens principle performs a residual function.
Two consequences flow from this: firstly, this law of armed conflict cannot be interpreted as containing lacunae of the sort likely to warrant reserve or at least doubt; secondly, nuclear weapons cannot be used outside the context of the law of armed conflict. Moreover, since no State supported the principle of a r6gime of non-law, the use of these weapons must be in conformity, from the standpoint of the law, with the rules governing such conflict. In these circumstances and on such an important question, there cannot be any doubt about the validity of the principle of illegality in the law of armed conflict.
With regard to the substance of the law of armed conflict, the second clause of operative paragraph 2 E introduces the possibility of an exception to the rules of the law of armed conflict by introducing a notion hitherto unknown in this branch of international law: the "extreme circumstance of self-defence, in which the very survival of a State would be at stake". Two criticisms must be offered. Firstly, the Court makes an amalgamation of the rules of the Charter of the United Nations on the one hand and the law of armed conflict and specifically the rules of humanitarian law on the other; whereas paragraph 2 E deals only with the law of armed conflict, and the right of self-defence belongs in paragraph 2 C. Rigorousness and clarity were necessary, failing a paragraph 2 E bis separate from paragraph 2 E and the attachment of the notion of "extreme circumstance of self-defence" to the more general problem of self-defence dealt with in paragraph 2 C. Paragraph 2 C covers all the cases of the right to use force by reference to the provisions of the Charter (Arts. 2 and 4 and Art. 51). A priori nothing prohibits an interpretation giving precedence to the rules of self-defence, including nuclear self-defence, over the rules of humanitarian law, a difficulty which leads consequentially to the second criticism. Secondly, the criticism is addressed to the acceptance of this concept of "extreme circumstance of self-defence, in which the very survival of a State would be at stake". There is no doubt that the meaning of this concept is expressed in the normal meaning of the words, but this observation is not sufficient for the purposes of legal qualification.
The principal difficulty of the interpretation of the second clause of paragraph 2 E lies in the true nature of the exception of "extreme circumstance of self-defence" to the application of humanitarian law and the law of armed conflict. Neither the case-law of the International Court or of any other court nor the doctrine offer any authority to confirm the existence of a distinction between the general case of application of the rules of the law of armed conflict and the exceptional case exempting a belligerent from fulfilling the obligations imposed by those rules.
If such a rule must exist, it can be deduced only from the intention of the States authors of and parties to these instruments. The fact that the case of nuclear weapons was deliberately not addressed during the negotiation and conclusion of the major conventions on the law of armed conflict has been repeatedly stressed. Accordingly, it is difficult to see how these plenipotentiaries could envisage exceptions of such importance to the principles governing the law of armed conflict. These principles were mended to be applied in all cases of conflict without any particular consideration of the status of the parties to the conflict - whether they ere victims or aggressors. If an exceptional authorization had been envisaged, the authors of these instruments could have referred to it, for example by incorporating limits or exceptions to their universal application.
[pp. 306-307 S.O. Fleischhauer] 3. As the Court rightly sees it, the answer to the question asked of it by the General Assembly does not lie alone in a finding that the threat or use of nuclear weapons would be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law. Through the use of the word "generally" in the first paragraph of point 2 E of the Conclusions and through the addition of the second paragraph to that point, the Court points to qualifications that apply or may apply to its findings regarding irreconcilability between the use of nuelcar weapons and humanitarian law. The word "generally" limits the finding as such; and according to the second paragraph,
"in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake".
To end the matter with the simple statement that recourse to nuclear weapons would be contrary to international law applicable in armed conflict, and in particular the principles and rules of humanitarian law, would have meant that the law applicable in armed conflict, and in particular the humanitarian law, was given precedence over the inherent right of individual or collective self-defence which every State possesses as a matter of sovereign equality and which is expressly preserved in Article 51 of the Charter. That would be so because if a State is the victim of an all-out attack by another State, which threatens the very existence of the victimized State, recourse to the threat or use of nuclear weapons in individual (if the victimized State is a nuclear-weapon State) or collective (if the victim is a non-nuclear-weapon State allied to a nuclear-weapon State) self-defence could be for the victimized State the last and only alternative to giving itself up and surrender. That situation would in particular exist if the attack is made by nuclear, bacteriological or chemical weapons. It is true that the right of self-defence as protected by Article 5l of the Charter is not weapon-specific (paragraph 39 of the considerations of the Opinion). Nevertheless, the denial of the recourse to the threat or use of nuclear weapons as a legal option in any circumstance could amount to a denial of self-defence itself if such recourse was the last available means by way of which the victimized State could exercise its right under Article 51 of the Charter.
A finding that amounted to such a denial therefore would not, in my view, have been a correct statement of the law; there is no rule in international law according to which one of the conflicting principles would prevail over the other. The fact that the attacking State itself would act in contravention of international law, would not alter the situation. Nor would recourse to the Security Council, as mandated by Article 51, guarantee by itself an immediate and effective relief.
[pp. 308-309 S.O. Fleischhauer] The principles and rules of the humanitarian law and the other principles f law applicable in armed conflict, such as the principle of neutrality on the one side and the inherent right of self-defence on the other, which are through the very existence of the nuclear weapon in sharp opposition to each other, are all principles and rules of law. None of these principles and rules is above the law, they are of equal rank in law and they can be altered by law. They are justifiable. Yet international law has so far not developed - neither in conventional nor in customary law - a norm on how these principles can be reconciled in the face of the nuclear weapon. As I stated above (paragraph 3 of this separate opinion), there is no rule giving prevalence of one over the other of these principles and rules. International politics has not yet produced a system of collective security of such perfection that it could take care of the dilemma, swiftly and efficiently.
In view of their equal ranking this means that, if the need arises, the smallest common denominator between the conflicting principles and rules has to be found. This means in turn that, although recourse to nuclear weapons is scarcely reconcilable with humanitarian law applicable in armed conflict as well as the principle of neutrality, recourse to such weapons could remain a justified legal option in an extreme situation of individual or collective self-defense in which the threat or use of nuclear weapons is the last resort against an attack with nuclear, chemical or bacteriological weapons or otherwise threatening the very existence of the victimized State. The same result is reached if, in the absence of a conventional or a customary rule for the conciliation of the conflicting legal principles and rules, it is accepted that the third category of law which the Court has to apply by virtue of Article 38 of its Statute, that is, the general principles of law recognized in all legal systems, contains a principle to the effect that no legal system is entitled to demand the self-abandonment, the suicide, of one of its subjects. Much can be said, in my view, in favour of the applicability of such a principle in all modern legal systems and consequently also in international law.
[pp. 321-322 D.O. Schwebel] For its part, the body of the Court's Opinion is cautious in treating problems of the application of the principles of international humanitarian law to concrete cases. It evidences a measure of uncertainty in a case in which the tension between State practice and legal principle is unparalleled. It concludes, in paragraph 2 E of the dispositif, that,
"It follows from the above-mentioned requirements that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of international humanitarian law."
That conclusion, while imprecise, is not unreasonable. The use of nuclear weapons is, for the reasons examined above, exceptionally difficult to reconcile with the rules of international law applicable in armed conflict, particularly the principles and rules of international humanitarian law. But that is by no means to say that the use of nuclear weapons, in any and all circumstances, would necessarily and invariably conflict with those rules of international law. On the contrary, as the dispositif in effect acknowledges, while they might "generally" do so, in specific cases they might not. It all depends upon the facts of the case.
[pp. 388-389 D.O. Shahabuddeen] It was said, no doubt correctly, that no case was known in which a belligerent State had been held responsible for collateral damage in neutral territory for lawful acts of war committed outside of that territory. It may be recalled, however, that the possibilities of damage by nuclear fall-out did not previously exist; because of technological limitations, damage on neutral territory, as a practical matter, could only be committed by incursion or bombardment, in which cases there would be acts of war committed on the neutral territory itself. To the extent that the Trail Smelter type of situation was likely to be a significant consequence of acts of war, the occurrence of concrete situations in the prenuclear period has not been shown to the Court. Thus, while no case may have occurred in which a belligerent State has been held responsible for collateral damage in neutral territory for lawful acts of war committed outside of that territory, that is decisive of the present case only if' it can be shown that there is no responsibility even where substantial physical effects of acts of war carried out elsewhere demonstrably extend to neutral territory. That cannot be persuasively shown; principle is against it. The causative act of war would have had the consequence of physically violating the territory of the neutral State. The 1907 Hague principle that the territory of a neutral State is inviolable would lose much of its meaning if in such a case it was not considered to be breached.
[pp. 398-399 D.O. Shahabuddeen] As seems to be recognized by the
Court, humanitarian considerations are admissible in the interpretation of the
law of armed conflict (see paragraphs, 86 and 92 of the Court's Advisory
Opinion). Drawing on those considerations, and taking an approach based on the
principle of effectiveness, it is reasonable to conclude that the criterion
implied by the principle in question is set by considering whether the use of
the particular weapon is acceptable to the sense of the international community;
it is difficult to see how there could be a right to choose a means of warfare
the use of which is repugnant to the sense of the international community.
In relation to some weapons, it may be difficult to establish, with evidential completeness, what is the sense of the international community. But the use of nuclear weapons falls, as it were, at the broad end of a range of possibilities, where difficulties of that kind evaporate. Unlike the case of conventional weapons, the use of nuclear weapons can result in the annihilation of mankind and of civilization. As it has been remarked, if all the explosive devices used throughout the world since: the invention of gunpowder were to detonate at the same time, they could not result in the destruction of civilization; this could happen if recourse were made to the use of nuclear weapons, and with many to spare. The principle limiting the right to choose means of warfare assumed that, whatever might be the means of warfare lawfully used, it would continue to be possible for war to be waged on a civilized basis in future. Thus, however free a State may be in its choice of means, that freedom encounters a limiting factor when the use, of a particular type of weapon could ensue in the destruction of civilization.
[pp. 402-403 D.O. Shahabuddeen] As restated in Article 35, paragraph 2, of the 1977 Additional Protocol to the 1949 Geneva Conventions, the principle reads:
"It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering."
The case of a weapon, such as the "dum-dum" bullet2 , which is
deliberately crafted so as to cause unnecessary suffering, does not exhaust the
interpretation and application of the prohibition. That may be regarded as a
particular instance of the working of a broader underlying idea that suffering
is superfluous or unnecessary if it is materially in excess of the degree of
suffering which is justified by the military advantage sought to be achieved. A
mechanical or absolute test is excluded: a balance has to be struck between the
degree of suffering inflicted and the military advantage in view. The greater
the military advantage, the greater will be the willingness to tolerate higher
levels of suffering. And, of course, the balance has to be struck by States. The
Court cannot usurp their judgment, but, in this case, it has a duty to find what
that judgment is. In appreciating what is the judgment of States as to where the
balance is to be struck, the Court may properly consider that, in striking the
balance, States themselves are guided by the public conscience. The Court has
correctly held that "the intrinsically humanitarian character of the legal
principles in question ... permeates the entire law of armed conflict and
applies to all forms of warfare and to all kinds of weapons ..." (Advisory
Opinion, para. 86). It is not possible to ascertain the humanitarian character
of those principles without taking account of the public conscience.
It was thus open to the Court to take the view that the public conscience could consider that no conceivable military advantage could justify the degree of suffering caused by a particular type of weapon.
[pp. 403-404 D.O. Shahabuddeen] On the material before it, the Court
could reasonably find that the public conscience considers that the use of
nuclear weapons causes suffering which is unacceptable whatever might be the
military advantage derivable from such use. On the basis of such a finding, the
Court would be entitled, in determining what in turn is the judgment of States
on the point, to proceed on the basis of a. presumption that the judgment of
States would not differ from that made by the public conscience.
The "unnecessary suffering", principle falls within the framework of principles designed for the protection of combatants. If the use of nuclear weapons would violate the principle in relation to them, that is sufficient to establish the illegality of such use. However, is it possible that the principle, when construed in the light of developing military technology and newer methods of waging war, has now come to be regarded as capable of providing protection for civilians also?
In the "expanding" bullet phase in which the principle made its appearance in the second half of the nineteenth century, it was no doubt visualized that "unnecessary suffering" would only be inflicted on soldiers in the battlefield; the effects of the use of weapons which could then cause such suffering would not extend to civilians. But the framework of military operations is now different: if nuclear weapons can cause unnecessary suffering to soldiers they can obviously have the same effect on civilians within their reach.
[p. 406 D.O. Shahabuddeen] In effect, the Martens Clause provided authority for treating the principles of humanity and the dictates of public conscience as principles of international law, leaving the precise content of the standard implied by these principles of international law to be ascertained in the light of changing conditions, inclusive of changes in the means and methods of warfare and the outlook and tolerance levels of the international community. The principles would remain constant, but their practical effect would vary from time to time: they could justify a method of warfare one age and prohibit it in another.
[pp. 418-419 D.O. Shahabuddeen] These difficulties suggest that it is necessary to distinguish between the inherent right of self-defence and the means by which the right is exercisable. A State using force in self-defence is acting legally under the jus ad bellum. But, whether a State is acting legally or illegally under the jus ad bellum, if it is in fact using force it must. always do so in the manner prescribed by the jus in bello. It is the jus in bello which lays down whether or not a particular means of warfare is permissible. Thus, where the use of a particular weapon is proscribed by the jus in bello, the denial of the use of that weapon is not a denial of the right of self-defence of the attacked State: the inherent right of self-defence spoken of in Article 51 of the Charter simply does not comprehend the use of the weapon in question. The legal answer to the possible plight of the victim State is given by the principle, as enunciated by the United States Military Tribunal at Nuremberg on 19 February 1948, that "the rules of international law must be followed even if it results in the loss of a battle or even a war. Expediency or necessity cannot warrant their violation ...".
[p. 424 D.O. Shahabuddeen] To sum up, putting at the highest all of the matters relied on by the proponents of legality, the Court could find that those matters do not suffice to cancel out the continuing assertion of the proponents of illegality that the threat or use of nuclear weapons is illegal. It would follow that the basic difficulties noticed above would remain. If, as I consider, a correct finding is that, on the law as it stood at the commencement of the nuclear age, a prohibitory rule then existed, that finding, as to what was the then law, cannot be contradicted by subsequent inconsistent State practice; the most that subsequent inconsistent State practice could do would be to generate a new rule rescinding, or modifying the old rule. But the position taken by most of the NNWS would make it impossible to establish that the necessary opinio juris emerged to support the creation of a new rule having the effect of reversing the old, and more particularly if the latter had the status of jus cogens. The prior prohibitory rule would thus continue to the present time.
[pp. 426-427 D.O. Shahabuddeen] Thus, however gross or excessive the suffering, the presence of the stated circumstances could create an exception to the application of humanitarian law, as indeed is visualized by the word "generally" in the first part of that subparagraph of the Court's holding. A law may, of course, provide for exceptions to its application. At the moment, however, there is nothing to suggest that humanitarian law Provides for an exception to accommodate the circumstances visualized by the Court. It seems to me that to take the position that humanitarian law can be set aside in the stated circumstances would sit oddly with the repeated and correct submissions on the part of both sides to the argument that the Court should apply the law and not make new law.
One further point. Despite variations in formulation and references to the concept of "vital security interests", an "extreme circumstance of self-defence, in which the very survival of a State would be at stake", as defined by the Court, is the main circumstance in which the proponents of legality advance a claim to a right to use nuclear weapons. This is so for the reason that, assuming that the use of nuclear weapons is lawful, the nature of the weapons, combined with the limitations imposed by the requirements of necessity and proportionality which condition the exercise of the right of self-defence, will serve to confine their lawful use to that "extreme circumstance". It follows that to hold that humanitarian law does not apply to the use of nuclear weapons in the main circumstance in which a claim to a right of use is advanced is to uphold the substance of the thesis that humanitarian law does not apply at all to the use of nuclear weapons. That view has long been discarded; as the Court itself recalls, the NWS themselves do not advocate it. I am not Persuaded that that disfavoured thesis can be brought back through an exception based on self-defence.
[p. 433 D.O. Weeramantry] My considered opinion is that the use or threat of use of nuclear weapons is illegal in any circumstances whatsoever. It violates the fundamental principles of international law, and represents the very negation of the humanitarian concerns which underlie the structure of humanitarian law. It offends conventional law and, in particular, the Geneva Gas Protocol of 1925, and Article 23 (a) of the Hague Regulations of 1907. It contradicts the fundamental principle of the dignity and worth of the human person on which all law depends. It endangers the human environment in a manner which threatens the entirety of life on the planet.
[pp. 435-436D.O. Weeramantry] The second paragraph of 2 E states that the current state of international law is such that the Court cannot conclude definitely whether the threat or use of the, weapon would or would not be lawful in extreme circumstances of self-defence. It seems self-evident to me that once nuclear weapons are resorted to, the laws of war (the jus in bello) take over, and that there are many principles of the laws of war, as recounted in this opinion, which totally forbid the use of such a weapon. The existing law is sufficiently clear on this matter to have enabled the Court to make a definite pronouncement without leaving this vital question, as though. sufficient principles are not already in existence to determine it. All the more should this uncertainty have been eliminated in view of the Court's very definite findings as set out earlier.
[pp. 493-494 D.O. Weeramantry] The general principles provide both nourishment for the development of the law and an anchorage to the mores of the community. If they are to be discarded in the manner contended for, international law would be cast adrift from its conceptual moorings. "The general principles of law recognized by civilized nations" remains law, even though indiscriminate mass slaughter through the nuclear weapon, irreversible damage to future generations through the nuclear weapon, environmental devastation through the nuclear weapon, and irreparable damage to neutral States through the nuclear weapon are not expressly prohibited in international treaties. If the italicized words are deleted from the previous sentence, no one could deny that the acts mentioned therein are prohibited by international law. It seems specious to argue that the principle of prohibition is defeated by the absence of particularization of the weapon.
The doctrine that the sovereign is free to do whatever statute does not expressly prohibit is a long-exploded doctrine. Such extreme positivism in legal doctrine has led humanity to some of its worst excesses. History has demonstrated that power,, unrestrained by principle, becomes power abused. Black-letter formulations have their value, but by no stretch of the imagination can they represent the totality of the law.
With specific reference to the laws of war, it would also set at nought the words of the Martens Clause, whose express terms are that, "Until a more complete code of the laws of war has been issued, the High Contracting Parties ... declare that, in cases not included in the Regulations adopted by them ... (emphasis added), the humanitarian principles it sets out would apply.
Thus, by express agreement, if that indeed were necessary, the wide range of principles of humanitarian law contained within customary international law would be applicable to govern this matter, for which no specific provision has yet been made by treaty.
[pp. 502-504 D.O. Weeramantry] Environmental law incorporates a number of principles which are violated by nuclear weapons. The principle of intergenerational equity and the common heritage principle have already been discussed. Other principles of environmental law, which this request enables the Court to recognize and use in reaching its conclusions, are the precautionary principle, the principle of trusteeship of earth resources, the principle that the burden of proving safety lies upon the author of the act complained of, and, the "polluter pays principle", placing on the author of environmental damage the burden of making adequate reparation to those affected3. There have been juristic efforts in recent times to formulate what have been described as "principles of ecological security" - a process of norm creation and codification of environmental law which has developed under the stress of the need to protect human civilization from the threat of self-destruction.
. . .
These principles of environmental law thus do not depend for their validity on treaty provisions. They are part of customary international They are part of the sine qua non for human survival.
[pp. 505-506 D.O. Weeramantry] The basic principle in this regard is spelt out by Article, 35 (3) of the 1977 Additional Protocol I to the Geneva Convention in terms prohibiting
"methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment".
Article 55 prohibits
"the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population".
The question is not whether nuclear weapons were or were not intended to be covered by these formulations. It is sufficient to read them as stating undisputed principles of customary international law. To consider that these general principles are not explicit enough to cover nuclear weapons, or that nuclear weapons were designedly left unmentioned and are therefore not covered, or even that there was a clear understanding that these provisions were not intended to cover nuclear weapons, is to emphasize the incongruity of prohibiting lesser weapons of environmental damage, while leaving intact the infinitely greater agency of causing the very damage which it was the rationale of the treaty to prevent.
If there are general duties arising under customary international law, it clearly matters not that the various environmental agreements do not specifically refer to damage by nuclear weapons. The same principles apply whether we deal with belching furnaces, leaking reactors or explosive weapons. The mere circumstance that coal furnaces or reactors are not specifically mentioned in environmental treaties cannot lead to the conclusion that they are exempt from the incontrovertible and well-established standards and principles laid down therein.
Another approach to the applicability of environmental law to the matter
before the Court is through the principle of good neighbourliness, which is both
impliedly and expressly written into the United Nations Charter. This principle
is one of the bases of modern international law, which has seen the demise of
the principle that sovereign States could pursue their own interests in splendid
isolation from each other. A world. order in which every sovereign State depends
on the same global environment generates a mutual interdependence which can only
be implemented by co-operation and good neighbourliness.
The United Nations Charter spells this out as "the general principle of good-neighbourliness, due account being taken of the interests and well-being of the rest of the world, in social, economic, and commercial matters" (Art. 74). A course of action that can destroy the global environment will take to its destruction not only the environment, but the social, economic and commercial interests that cannot exist apart from that environment. The Charter's express recognition of such a general duty of good neighbourliness makes this an essential part of international law.
This Court, from the very commencement of its jurisprudence, has supported this principle by spelling out the duty of every State not to allow knowingly its territory to be used for acts contrary to the rights of other States" (Corfu Channel, I.C.J. Reports 1949, p. 22).
[pp. 508-509 D.O. Weeramantry] Quite independently of the various general principles that have been invoked in the discussion thus far, there is a conventional basis on which it has been argued that nuclear weapons are illegal. It is for this reason that I have voted against paragraph 2 B of the dispositif which holds that there is not, in conventional international law, a comprehensive and universal prohibition of the threat or use of nuclear weapons as such. I refer, in particular, to the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases and of Bacteriological Methods of Warfare, 17 June 1925 (commonly referred to as the Geneva Gas Protocol). It is so comprehensive in its prohibition that, in my view, it clearly covers nuclear weapons, which thus become the subject of conventional prohibition. There is considerable scholarly opinion favouring this view. Moreover, if radiation is a poison, it is caught up also by the prohibition on poison weapons contained in Article 23 3 (a) of the Hague Regulations. The rule against poisonous weapons has indeed been described as "The most time-honoured special prohibition on the subject of weapons and instruments of war." It is a rule recognized from the remotest historical periods and in a wide spread of cultures.
[p. 513 D.O. Weeramantry] If a nation is attacked, it is clearly entitled under the United Nations Charter to the right of self-defence. Once a nation thus enters into the domain of the jus in bello, the principles of humanitarian law apply to the conduct of self-defence, just as they apply to the conduct of any other aspect of military operations. We must hence examine what principles of the jus in bello apply to the use of nuclear weapons in self-defence.
The first point to be noted is that the use of force in self-defence
(which is an undoubted right) is one thing and the use of nuclear weapons in
self-defence is another. The permission granted by international law for the
first does not embrace the second, which is subject to other governing
principles as well.
All of the seven principles of humanitarian law discussed in this opinion apply to the use of nuclear weapons in self-defence, just as they apply to their use in any aspect of war. Principles relating to unnecessary suffering, proportionality, discrimination, non-belligerent States, genocide, environmental damage and human rights would all be violated, no less in self-defence than in an open act of aggression. The jus in bello covers all use of force, whatever the reasons for resort to force. There can be no exceptions, without violating the essence of its principles.
[p. 527 D.O. Weeramantry] De facto inequalities always exist and will continue to exist so long as the world community is made up of sovereign States, which are necessarily unequal in size, strength, wealth and influence. But a great conceptual leap is involved in translating de facto inequality into inequality de jure. It is precisely such a leap that is made by those arguing, for example, that when the Protocols to the Geneva Conventions did not pronounce on the prohibition of the use of nuclear weapons, there was an implicit recognition of the legality of their use by the nuclear powers. Such silence meant an agreement not to deal with the question, not a consent to legality of use. The "understandings" stipulated by the United States and the United Kingdom that the rules established or newly introduced by the 1977 Additional Protocol to the four 1949 Geneva Conventions would not regulate or prohibit the use of nuclear weapons do not undermine the basic principles which antedated these formal agreements and received expression in them. They rest upon no conceptual or juristic reason that can make inroads upon those principles. It is conceptually impossible to treat the silence of these treaty provisions as overruling or overriding these principles.
[p. 541 D.O. Weeramantry] Deterrence is by definition the very opposite of a secretly harboured intention to use nuclear weapons. Deterrence is not deterrence if there is no communication, whether by words or implication, of the serious intention to use nuclear weapons. It is therefore nothing short of a threat to use. If an act is wrongful, the threat to commit it and, more particularly, a publicly announced threat, must also be wrongful.
[p. 544 D.O. Weeramantry] The sole justification, if any, for the doctrine of reprisals is that it is a means of securing legitimate warfare. With the manifest impossibility of that objective in relation to nuclear weapons, the sole reason for this alleged exception vanishes. Cessante ratione legis, cessat ipsa lex.
[p. 556 D.O. Koroma] It is my considered opinion based on the existing law and the available evidence that the use of nuclear weapons in any circumstance would be unlawful under international law. That use would at the very least result in the violation of the principles and rules of international humanitarian law, and would therefore be contrary to that law.
[pp. 562-563 D.O. Koroma] The question therefore is not whether a State is entitled to exercise its right of self-defence in an extreme circumstance in which the very survival of that State would be at stake, but rather whether the use of nuclear weapons would be lawful or unlawful under any circumstance in which its very survival was at stake - or, in other words, whether it is possible to conceive of consequences of the use of such weapons which do not entail an infringement of international law applicable in armed conflict, particularly international humanitarian law. As stated above, in terms of the law. the right of self-defence is restricted to the repulse of an armed attack and does not permit of retaliatory or punitive action. Nor is it an exception to the jus in bello (conduct of hostilities). Since, in the light of the law and the facts, it is inconceivable that the use of nuclear weapons would not entail an infringement of, at the very least, the law applicable in armed conflict, particularly humanitarian law, it follows that the use of such weapons would be unlawful. Nuclear weapons do not constitute an exception to humanitarian law.
[pp. 570-571 D.O. Koroma] The Court found that:
"in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake" (paragraph 2 E of the dispositif).
This finding that would appear to suggest that nuclear weapons when used in circumstances of a threat to "State survival" - a concept invented by the Court - would constitute an exception to the corpus of humanitarian law which applies in all armed conflicts and makes no exception for nuclear weapons. In my considered opinion, the unlawfulness of the use of nuclear weapons is not predicated on the circumstances in which the use takes place, but rather on the unique and established characteristics of those weapons which under any circumstance would violate international law by their use. It is therefore most inappropriate for the Court's finding to have turned on the question of State survival when what is in issue is the lawfulness of nuclear weapons. Such a misconception of the question deprives the Court's finding of any legal basis.
[pp. 574-575 D.O. Koroma] The Court also adopted the judicial policy of "non-pronouncement" on the question of belligerent reprisals - an issue most pertinent to the question before it "save to observe that in any case any right of recourse to such reprisals would, like self-defence, be governed inter alia by the principle of proportionality" (para. 46). It is to say the least strange that the Court should refrain from pronouncing on the lawfulness or otherwise of belligerent reprisals, particularly if it would involve the use of nuclear weapons. Under contemporary international. law, belligerent reprisals, if carried out with nuclear weapons, would grossly violate humanitarian law in any circumstance and international law in general. More specifically the Geneva Conventions prohibit such reprisals against a range of protected persons and. objects as reaffirmed in Additional Protocol I of 1977. According to the Protocol., all belligerent parties are prohibited from carrying out belligerent reprisals. If nuclear weapons were used and given the characteristics of those weapons, their inability to discriminate between civilians and combatants and between civilian and military objectives, together with the likelihood of violations of the prohibition of unnecessary suffering and superfluous injuries to belligerents, such reprisals would at a minimum be contrary to established humanitarian law and would therefore be unlawful. The Court's "judicial restraint" on an issue of such crucial importance to the question before it contributes neither to the clarification of the law, let alone to its observance.
[pp. 578-579 D.O. Koroma] The Advisory Opinion considered that the fact of nuclear weapons not having been used for 50 years cannot be regarded as an expression of an opinio juris. The legal basis for such a recognition was not elaborated; it was more in the nature of an assertion. However., the Court was unable to find that the conviction of the overwhelming majority of States that the fact that nuclear weapons have not been used for the last 50 years has established an opinio juris in favour of the prohibition of such use, was such as to have a bearing on its Opinion. In this connection, the Court should have given due consideration and weight to the statements of the overwhelming majority of States together with the resolutions adopted by various international organizations on the use of nuclear weapons, as evidence of the emergence of an opinio juris.
[p. 580 D.O. Koroma] However, I have voted against paragraph 2 B according to which the Court finds that there is in neither customary nor conventional international law any comprehensive and universal prohibition of the threat of nuclear weapons as such. Such a finding, in my view, is not in accordance with the law. At the very least, the use of nuclear weapons Would violate the prohibition of the use of poison weapons as embodied in Article 23 (a) of the Hague Convention of 1899 and 1907 as well as the Geneva Gas Protocol of 1925 which prohibits the use of poison gas and/or bacteriological weapons. Because of its universal adherence, the Protocol is considered binding on the international community as a whole. Furthermore, the prohibition of the use of poison gas is now regarded as a part of customary international law binding on all States, and, the finding by the Court in paragraph 2 B cannot be sustained in the face of the Geneva Conventions of 1949 and the 1977 Additional Protocols thereto either. With regard to the Conventions, they are as of today binding on at least 186 States and their universal acceptance is said to be even greater than that of the United Nations Charter. Accordingly, those treaties are now recognized as a part of customary international law binding on all States.
[p. 584 D.O. Higgins] 9. It is not sufficient, to answer the question put to it, for the Court merely briefly to state the requirements of the law of armed conflict (including humanitarian law) and then simply to move to the conclusion that the threat or use of nuclear weapons is generally unlawful by reference to these principles and norms. The Court limits itself to affirming that the principles and rules of humanitarian law apply to nuclear weapons. It finds in paragraph 95, by reference to "the unique characteristics of nuclear weapons" that their use is "scarcely reconcilable" with the requirements of humanitarian law and "would generally be contrary" to humanitarian law (dispositif, para. 2 E). At no point in its Opinion does the Court engage in the task that is surely at the heart of the question asked: the systematic application of the relevant law to the use or threat of nuclear weapons. It reaches its conclusions without the benefit of detailed analysis. An essential step in the judicial process - that of legal reasoning - has been omitted.
[p. 585-586 D.O. Higgins] 12. It is not permitted in the choice of weapons to cause unnecessary suffering to enemy combatants, nor to render their death inevitable, nor to aggravate their sufferings when disabled. Equally, the Report of the International Military Commission in St. Petersburg of 1868 made clear that harm to civilians as a means of securing victory over the enemy was not a legitimate right of war; and that even in seeking to disable the military not every method was lawful. There has been, in many of the written and oral submissions made to the Court, a conflation of these two elements. But the Court itself makes clear, in paragraph 78 of its Opinion, that the prohibitions against means of conflict that cause unnecessary suffering is directed towards the fulfilment of the second, progressive, limb - namely, that even in seeking to disable the military forces of the enemy, there is a limitation upon the means that may be employed. These provisions are not directed at the protection of civilians - other provisions serve that purpose. It is in any event absolutely prohibited to attack civilians, whether by nuclear or other weapons. Attack upon civilians does not depend for its illegality upon a prohibition against "superfluous injury" or aggravating the sufferings of men already disabled.
13. If then the "unnecessary suffering" provision does not operate as a generalized prohibition, but is rather directed at the protection of combatants, we must ask whether it still does not follow that the appalling primary effects of a nuclear weapon - blast waves, fires, radiation or radioactive fallout - cause extensive unnecessary suffering? These effects indeed cause horrendous suffering. But that is not necessarily "unnecessary suffering" as this term is to be understood within the context of the 1868 and 1907 law, which is directed at the limitation of means against a legitimate target, military personnel.
14. The background to Article 23 (a) of the Hague Regulations was the celebrated provision in Article 22 (which opens a Chapter on the means of injuring the enemy) that the means of injuring the enemy is not unlimited. A certain level of violence is necessarily permissible in the exercise of self-defence; humanitarian law attempts to contain that force (and illegal uses of force too), by providing a "balancing" set of norms. It is thus unlawful to cause suffering and devastation which is in excess of what is required to achieve these legitimate aims. Application of this proposition requires a balancing of necessity and humanity.
[p. 588 D.O. Higgins] 21. It must be that, in order to meet the legal requirement that a military target may not be attacked if collateral civilian casualties would be excessive in relation to the military advantage, the "military advantage" must indeed be one related to the very survival of a State or the avoidance of infliction (whether by nuclear or other weapons of mass destruction) of vast and severe suffering on its own population; and that no other method of eliminating this military target be available.
[p. 591 D.O. Higgins] 33. Perhaps the reference to "the current state of international law" is a reference to perceived tensions between the widespread acceptance of the possession of nuclear weapons (and thus., it may be presumed, of the legality of their use in certain circumstances) as mentioned by the Court in paragraphs 67 and 96 on the one hand, and the requirements of humanitarian law on the other. If so, I believe this to be a false dichotomy. The pursuit of deterrence, the shielding under the nuclear umbrella, the silent acceptance of reservations and declarations by the nuclear powers to treaties prohibiting the use of nuclear weapons in certain regions, the seeking of possible security assurances - all this points to a significant international practice which is surely relevant not only to the law of self-defence but also to humanitarian law. If a substantial number of States in the international community believe that the use of nuclear weapons might in extremis be compatible with their duties under the Charter (whether as nuclear powers or as beneficiaries of "the umbrella" or security assurances) they presumably also believe that they would not be violating their duties under humanitarian law.
34. Nothing in relevant statements made suggests that those States giving nuclear assurances or receiving them believed that they would be violating humanitarian law - but decided nonetheless to act in disregard of such violation. In sum,, such weight as may be given to the State practice just referred to has a relevance for our understanding of the complex provisions of humanitarian law as much as for the provisions of the Charter law of self-defence.
See paragraph 79 of the Advisory Opinion, which reads:
It is undoubtedly because a great many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and 'elementary considerations of humanity' as the Court put it in its Judgment of 9 April 1949 in the Corfu Channel case (I.C.J. Reports 1949, p. 22), that the Hague and Geneva Conventions have enjoyed a broad accession. Further these fundamental rules are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute in transgressible principles of international customary law." (Emphasis added.)
|2||"[T]he projectile known under the name of 'dum-dum' was made in the arsenal of that name near Calcutta." See The Proceedings of the Hague Peace Conferences, The Conference of 1899, 1920, p. 277, per General Sir John Ardagh.|
|3||See the references to these principles in my dissenting opinion in Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court's Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case, I.C.J. Reports 1995, pp. 339-347.|