|I.||Substantive International Law - First Part|
|7.||LAW OF TREATIES|
|7.9.6.||Convention on the Prevention and Punishment|
of the Crime of Genocide of 1948
Legality of the Threat or Use
of Nuclear Weapons
Advisory Opinion of 8 July 1996
I.C.J. Reports 1996, p. 226
[p. 240] 26. Some States also contended that the prohibition against genocide, contained in the Convention of 9 December 1948 on the Prevention and Punishment of the Crime of Genocide, is a relevant rule of customary international law which the Court must apply. The Court recalls that in Article 11 of the Convention genocide is defined as
"any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group."
It was maintained before the Court that the number of deaths occasioned by
the use of nuclear weapons would be enormous; that the victims could, in certain
cases, include persons of a particular national, ethnic, racial or religious
group; and that the intention to destroy such groups could be inferred from the
fact that the user of the nuclear weapon would have omitted to take account of
the well-known effects of the use of such weapons.
The Court would point out in that regard that the prohibition of genocide would be pertinent in this case if the recourse to nuclear weapons did indeed entail the element of intent, towards a group as such, required by the provision quoted above. In the view of the Court, it would only be possible to arrive at such a conclusion after having taken due account of the circumstances specific to each case.
[p. 502 D.O. Weeramantry] When a nuclear weapon is used, those using it must know that it will have the effect of causing deaths on a scale so massive as to wipe out entire populations. Genocide, as defined in the Genocide Convention (Art. 11), means any act committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such. Acts included in the definition are killing members of the group, causing serious bodily or mental harm to members of the group, and deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.
In discussions on the definition, of genocide in the Genocide Convention, much play is made upon the words "as such". The argument offered is that there must be an intention to target a particular national, ethnical, racial or religious group qua such group, and not incidentally to some other act. However, having regard to the ability of nuclear weapons to wipe out blocks of population ranging from hundreds of thousands to millions, there can be no doubt that the weapon targets, in whole or in part, the national group of the State at which it is directed.
Nuremberg held that the extermination of the civilian population in whole or in part is a crime against humanity. This is precisely what a nuclear weapon achieves.