My attitude was clear throughout. For more than a century, imperialists had frequently bullied, humiliated and oppressed China. To put an end to this situation, we had to develop sophisticated weapons such as the guided missile and the atomic bomb, so that we would have the minimum means of reprisal if attacked by the imperialist with nuclear weapons.
- Marshall Nie Rongzhen, Memoirs INTRODUCTION
The last decade has seen fewer war deaths than any decade in the past one hundred years.1 As Richard K. Betts, director of the Institute of War and Peace Studies at the School of International and Public Affairs at Columbia University, said, “There is less danger [today] of complete annihilation, but more danger of mass destruction.”2 Nevertheless, since 1990, there have been at least thirteen instances of States threatening other States with nuclear weapons.3 Throughout this period, the legality of nuclear weapons remained and still, to some degree, remains uncertain. Even though the International Court of Justice (“ICJ”) pronounced the general unlawfulness of nuclear weapons in its Advisory Opinion, Legality of the Threat or Use of Nuclear Weapons in Armed Conflict (“Legality”), it simultaneously left in place an ambiguity by hedging the issue, as this Note will later explain. Much has been written about the legal status of nuclear weapons after Legality, but few have addressed the issue of nuclear reprisals. This Note will take up that substantial task.
Towards this end, then, this Note will assume nuclear weapons to be unlawful, which gives rise to the question of whether a nuclear reprisal to an adversary’s use of WMDs – whether chemical, biological, or nuclear – could ever be lawful. Because the US is a signatory to both the chemical and biological weapons conventions, an in kind retaliation against chemical or biological weapons would be violative of Article 1.4 A nuclear reprisal, thus, provides the only possibility of a non-conventional response to a chemical or biological attack.
Part I of this Note will provide a synopsis of the Court’s decision in Legality as well as the background law on reprisals. Because the International Committee of the Red Cross (“ICRC”) is considered to be the primary institution for international humanitarian law (“IHL”), Part II will apply the conditions set forth in Part I by the ICRC for lawful reprisals to nuclear weapons used in reprisal. This analysis will convincingly demonstrate the unlawfulness of nuclear reprisals. Part III concludes by restating that nuclear weapons are simply too uncontrollable, indiscriminate, and powerful to satisfy the Laws of Armed Conflict (“LOAC”), and specifically the requirements of IHL.
I. BACKGROUND LAW
This section will provide an overview of the relevant international law addressing the legal status of nuclear weapons and reprisals, respectively. First, this Note will discuss the ICJ Legality decision, which is the only semi-authoritative pronouncement on the issue, even though it was only an Advisory Opinion. Thereafter, customary and conventional international law vis-à-vis nuclear weapons will be surveyed to see if any conventions or treaties came to be after Legality that assist in clarifying their legal status. Finally, the legality of reprisals will be discussed at length, with a specific intention of showing that, despite the international community’s general disapproval of them, reprisals are lawful in certain, “reasonable” instances.
THE LEGAL STATUS OF NUCLEAR WEAPONS ICJ ADVISORY OPINION ON NUCLEAR WEAPONS
In a split decision, the ICJ in Legality ruled that the use of nuclear weapons would generally be unlawful, as contrary to LOAC, and in particular the principles of IHL. The Court, however, noted that because of the current state of international law and the facts at its disposal, it could not reach a definitive conclusion whether use of nuclear weapons would be lawful in “an extreme circumstance of self-defense, in which the very survival of a State would be at stake.”5 The Court, nevertheless, reached two basic conclusions. First, the Court observed that there is no per se rule in customary or conventional international law prohibiting the use of nuclear weapons. Even though various conventions exist prohibiting the use of asphyxiating gases, poison, or poisoned weapons, like Article 23(a) of the Regulations annexed to the Hague Convention IV of 1907 or the 1925 Geneva Protocol, the Court found that none applied to nuclear weapons. Second, nuclear weapons fall under the scope of IHL. The Court highlighted three of these principles particularly relevant to assessing the legality of nuclear weapons:
(a) The principle of distinction between combatants and non-
combatants, which aims at protecting the civilian population and discriminating between civilian and military targets;
(c) the Martens clause, according to which civilians and combatants, in cases not covered by ad hoc rules of conventional law, remain under the protection and authority of the principles of international law derived from established customs, from the principles of humanity, and from dictates of public conscience.
While the Court did recognize the inherent difficulty of reconciling these fundamental principles of international law with the use of nuclear weapons, the Court nonetheless stated that it was unable to conclude that "the use of nuclear weapons would necessarily be at variance with the principles and rules of law applicable in armed conflict.”6 As such, the Court concluded 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 humanitarian law."7 It was in this context that the Court pronounced its ambiguous conclusion, declining to rule on whether the use of nuclear weapons would be lawful in an “extreme circumstance of self-defense.”8