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The ICRC and the nuclear weapon: the story of an uncomfortable paradox

18-03-2003 No Article by Kim Gordon-Bates

On the 16th of July 1945 at 5:29:45 am exactly, the " Nuclear Age " mushroomed upon the world. That was when the world's first nuclear device was detonated marking the successful outcome of the epochal Manhattan Project. Three weeks later, following the destruction of Hiroshima and Nagasaki, war and peace had been transformed beyond recognition. Indeed, peace could no longer be a tranquil, threat-free, condition; henceforth the failure of peace could mean the total destruction of Humanity. Something, a radical something, had to be done and it had to be quickly done... Yet, since, what has been done has not been far from radical, also it took its time coming. The " bomb " was allowed to grow in destructive power; it was also allowed to multiply. Now connected to ever-improved delivery systems (in terms of range and radar evasion capabilities), the " bomb " has been introduced in the arsenals of an increasing number of States and not only is there the continued danger of nuclear war between States there is also a credible threat from non-State actors (notably through the use of so-called " dirty bombs " ).

The " bomb's " almost unlimited destructive potential earned it the reputation of being the ultimate deterrent. In the aftermath of Hiroshima and Nagasaki, it thus became a political weapon, never to be used for the consequences were known to be too horrific to contemplate. Thus the " bomb " stood guard over decades of rivalry between two powerful blocks and consequently was viewed as a guardian of peace. Because of this dual military and political nature, the nuclear weapon was slotted in a category of its own and thus slipped from the clutches of disarmament efforts, leavi ng Humanity to quake in its shadow.

Also, because of its extreme nature, the " bomb " warped the humanitarian debate. One of the ICRC's core activities is to monitor the application of International Humanitarian Law (IHL). Part of the institution's job is to make sure that belligerents know the limits of the destructive powers at their disposal. Notably that belligerents should know that the right to adopt means to injure the enemy is not unlimited, that civilians cannot be targeted, that military might cannot be employed indiscriminately, that the environment cannot be damaged in a manner that would prejudice the health and survival of populations living there... the ICRC's work has been ceaselessly to seek the containment of violence within universally accepted limits. The institution's awareness of the destructive potential of the nuclear weapon is heightened by the fact that the ICRC, together with the Japanese Red Cross, is the only humanitarian organisation to have had anything approaching the experience of nuclear war: its delegates were among the first to arrive in what was left of Hiroshima and they reported in no uncertain terms the horror they there saw (see the   telegram sent from Hiroshima by Bilfingerfourth convention , an ICRC delegate, on 30 August 1945). Shaken by the experience and the suffering encountered during WWII, in a post-war world made of awareness, hope and awe, the ICRC set itself to task to establish the legal basis that would forestall a recurrence of the worst. The outcome of this intense humanitarian activity was a modernisation and up grading of the existing Geneva Conventions (notably through the introduction of a f ourth convention protecting civilian persons at times of war. This work was finalised on the 12th of August 1949, less than a month after the USSR test-exploded its first nuclear weapon; an event that shed a new emphasis on the burgeoning arms'race. Yet despite this trend, or perhaps because of it, the international community could not bring itself to bolt down the nuclear weapon the same way as it had combat-gases (and biological weapons) the prohibition of which having been restored in 1925 (Geneva Protocol) following their use on WWI battlefields. After a few close calls - the Korean War and the Suez Canal crisis notably - the risk of a fully blown nuclear war could no longer be ignored. In the mid-fifties, the ICRC initiated a process that would have substantially improved existing IHL by introducing, in treaty format, a clear stipulation whereby weapons of mass destruction were to be viewed as illegal per se. The ICRC submitted to the States a draft convention for " the limitation of the dangers incurred by the civilian population in times of war " which would have led to the banning of weapons with direct radioactive effect. Regrettably, by 1957 that process had been scuttled principally because of the widening East-West divide and the inescapable politicisation of the nuclear weapons'issue (cf. 6 September 1945 and 5 April 1950Additional Protocols to the Geneva Conventions ICRC appeals). Though chastened by this particular failure, the ICRC returned to the work table a decade later to draft and propose what became the purpose of which was to further spell out the limits applicable to modern warfare with respect to civilian populations. Thus the prevailing mixture of interests, affiliations and sentiments had led to a par adox: the community of States was ready to ratify an important agreement to protect Humanity in situations of conflict yet could not agree to protect it against the most obvious and most destructive threat on the horizon and so, a number of States categorically and formally excluded nuclear weapons from the purview of Additional Protocol I. At the risk of ending up with nothing when the need was great, the ICRC forced itself to accept the awkward postulate whereby a State may legitimately possess nuclear weapons although their use would generally constitute a grave violation of IHL. The only arena left where nuclear weapons could be dealt with were the various disarmament negotiations that were convened according to the ups and downs of international relations.

The ambiguity of this state of affairs on the question of nuclear weapons is made more problematic with the deployment of so-called tactical war-heads that may, theoretically, be used against specific localised military targets, such as caves, underground bunkers, ships and submarines... For the ICRC, the calibre of a nuclear device is irrelevant to the problem posed since the use of even a " small bomb " would breach the moral prohibition that, since the end of WWII, has prevented the use of any nuclear weapon. Such a breach would undoubtedly open the door to an increased tolerance to the use of nuclear weapons sui generis. Furthermore, the form of retaliation such an attack would provoke would clearly lead to an outright and uncontrolled escalation.

Meanwhile, few people were satisfied with the established postulate. In 1993, the World Health Organisation approached the International Court of Justice (ICJ) asking it to deliver an Advisory Opinion  on the matter. This was rendered on the 8th of July 1996. In substance, the ICJ endorsed the status quo to the effect that wh ile " neither international customary law nor international conventional law authorise the threat or the use of nuclear weapons " neither do they " ban completely and universally the threat or the use " of such weapons. The ICJ judges, however, unanimously stated that the threat or use of nuclear weapons had to nonetheless be compatible with the requirements of existing international law of armed conflicts and specifically of IHL. Thus, legally speaking, the world was taken back to square one; disarmament conferences have been and gone with, at best, partial results.

Today, both the " massive " threat and the " tactical " challenge to the norm remain and the ICRC is left to manage the continued nuclear danger as best it can, that is according to the legal tools at its disposal. Whenever a risk of war emerges, basing itself on the ICJ's Advisory Opinion, the ICRC reminds opposing parties of their obligations under IHL with a direct and statutory reference to the dangers considered to be inherent in the use of nuclear weapons: " the principles and rules of international humanitarian law, and in particular the principles of distinction and proportionality and the prohibition on causing superfluous injury or unnecessary suffering, apply to the use of nuclear weapons. As stated by the International Court of Justice in its Advisory Opinion of 8 July 1996, the use of nuclear weapons would generally be contrary to the principles and rules of international humanitarian law".  

Yet there is an ethical dimension that goes well beyond legal readings of legal documents and here the ICRC is adament. The ICRC emphatically calls upon all States to refrain from the use of any form of nuclear weapon in any circumstance; furthermore, the ICRC calls upon all States to resist the catastro phic trend towards nuclear weapon proliferation. Thus, the ICRC calls on States to pursue negociations with a view to achieving a complete prohibition on nuclear weapons as well as the elimination of such weapons, as they have undertaken to do... Future disarmament conferences must crack the nuclear nut once and for all and relegate the nuclear weapon to the pages of a frightful but concluded history.

ICRC, 18.03.2003