Nuclear weapons

IRRC No. 316

The Advisory Opinion of the International Court of Justice on the legality of nuclear weapons and international humanitarian law.

Table of contents

  • A note from the Editor

    On 8 July 1996, the International Court of Justice issued an advisory opinion entitled " Legality of the threat or use of nuclear weapons " in reply to a question submitted to it by the General Assembly of the United Nations. The Review subsequently invited a number of international legal experts to discuss the implications of this opinion for international humanitarian law as a whole, and we are happy to be able to publish eight articles on the subject by as many authors. While they have expressed a variety of viewpoints about the Court's conclusions on the main issue, they all stress in one form or another the importance of the advisory opinion for international humanitarian law in general.

  • Foreword by Judge Géza Herczegh

    At the request of the United Nations General Assembly, the International Court of Justice delivered an Advisory Opinion on the legality of the threat or use of nuclear weapons. Some commentators have called this one of the most important decisions in the Court's history. It was taken after long debate, and section 2E of the decision was adopted only by the President's casting vote, seven members of the Court having voted in favour and seven against. Every member found it necessary to add to the Advisory Opinion either a declaration or a separate or dissenting opinion making clear his or her own position in relation to the question raised by the General Assembly.
    Géza Herczegh, Judge, International Court of Justice

  • Advisory Opinion of the International Court of Justice on the legality of the threat or use of nuclear weapons

    There are some questions which one would prefer not to raise. The legality of the use of nuclear weapons in war is surely a case in point. With the emergence and development of nuclear weapons mankind crossed a major threshold: for the first time, it had weaponry which threatened its very survival. The dropping of atomic bombs on Hiroshima and Nagasaki brought about a moral cataclysm and changed the whole face of warfare. The ICRC immediately saw the implications of those events. It shared its concern with all the National Red Cross and Red Crescent Societies in a circular letter that its President, Max Huber, sent out on 5 September 1945, less than one month after Hiroshima and Nagasaki.
    Yves Sandoz, Director for International Law and Policy at the International Committee of the Red Cross

  • Nuclear weapons: a weighty matter for the International Court of Justice

    It is easy to heap scorn on the Advisory Opinion handed down by the International Court of Justice on 8 July 1996 on the legality of the threat or use of nuclear weapons. No great cerebral effort is required; one need only choose any of the numerous and often harsh criticisms to be found in the declarations and the separate or dissenting opinions that all fourteen judges present took care to formulate, whether they agreed with the whole of the decision or voted against any of its paragraphs. Indeed, one may well feel bemused when reading the views expressed by the judges as to the merits of the question asked by the General Assembly, and when one tries to relate those views to the title - declaration, separate opinion or dissenting opinion â€" chosen by each judge for his or her document and to the way the voting went.
    Luigi Condorelli, Professor of International Law at the University of Geneva

  • The Opinion of the International Court of Justice on the legality of the use of nuclear weapons

    Of the 51 opinions handed down by the Court of the Hague (28 by the Permanent Court of International Justice and 23 by the International Court of Justice), there is little doubt that the two delivered on 8 July 1996 in response to requests submitted by the WHO World Health Assembly and the United Nations General Assembly will become landmarks in the history of the Court, if not in history itself. Never before had the Court been asked to address a legal problem that had lain so close to the heart of international relations over the preceding 50 years, one which in the words of Vice-President Schwebel represented " a titanic tension between State practice and legal principle " [2 ] Its task was both sensitive and thankless because, in considering the particular problem of the legality of the threat or use of nuclear weapons, the Court had to pronounce on the validity of conduct which, although it had remained hypothetical ever since Hiroshima and Nagasaki, was nonetheless the cornerstone of the defence policy of the world's major powers.
    Eric David, Professor at the Free University of Brussels, Belgium.

  • International humanitarian law and the Advisory Opinion of the International Court of Justice on the legality of the threat or use of nuclear weapons

    The Advisory Opinion of the International Court of Justice represents the first time that the Court's judges have been called upon to analyse in some detail rules of international humanitarian law. Other instances, for example, the Nicaragua case, involved nowhere near such an extensive analysis. The Advisory Opinion is therefore of particular interest in that it contains important findings on the customary nature of a number of humanitarian law rules and interesting pronouncements on the interpretation of these rules and their relationship with other rules. Most judges based their final decision on the legality of the threat or use of nuclear weapons on teleological interpretations of the law, choosing either the right of self-defence as being the most fundamental value, or the survival of civilization and the planet as a whole as paramount.
    Louise Doswald-Beck, LL.M. (London), is deputy head of the ICRC Legal Division.

  • The Advisory Opinion of the International Court of Justice on the legality of nuclear weapons

    The Advisory Opinion handed down by the International Court of Justice (ICJ) on 8 July 1996 concerning the legality of the threat or use of nuclear weapons contains many elements that are of fundamental interest from the standpoint of international humanitarian law. Indeed, humanitarian law, which has developed to a remarkable extent since the Second World War, has always lacked an express ruling on nuclear weapons.
    Hisakazu Fujita, Professor

  • The Advisory Opinion on nuclear weapons and the contribution of the International Court to international humanitarian law

    The request by the United Nations General Assembly, in resolution 49/75 K (1994), that the International Court give an advisory opinion on the question " Is the threat or use of nuclear weapons in any circumstance permitted under international law? " gave the Court an unusual opportunity to consider the principles of international humanitarian law. It is an opportunity which the Court might well have preferred to do without. The question was not well framed and the reasons for asking it were wholly unsatisfactory. In particular, the necessarily abstract nature of the question placed the Court in an exceptionally difficult position, because it could not possibly consider all the c ombinations of circumstances in which nuclear weapons might be used or their use threatened. Yet unless one takes the position that the use of nuclear weapons is always lawful (which is obvious nonsense), falls wholly outside the law (which no State suggested) or is always unlawful (a view which has had some supporters but which the majority of the Court quite rightly rejected), then the answer to the General Assembly's question would have to depend upon a careful examination of those circumstances.
    Christopher Greenwood, Professor of International Law at the London School of Economics

  • A non liquet on nuclear weapons - The ICJ avoids the application of general principles of international humanitarian law

    The Advisory Opinion delivered by the International Court of Justice (ICJ) on the Legality of the Threat or Use of Nuclear Weapons was a somewhat disappointing if not entirely unexpected decision [2 ] . After the final paragraph, which constitutes the dispositif, all fourteen judges appended either personal declarations, separate opinions or dissenting opinions to indicate the extent to which they agreed or disagreed with specific findings and particular aspects of the reasoning behind the Opinion.
    Dr Timothy L.H. McCormack, Professor of International Humanitarian Law, Faculty of Law, The University of Melbourne, Australia

  • Advisory Opinion of the International Court of Justice on the legality of the use of nuclear weapons under international law - A few thoughts on its strengths and weaknesses

    On 8 July 1996, the International Court of Justice finally rendered its Advisory Opinion on the legality of the threat or use of nuclear weapons. The procedure had been dragging on since the start of the public sittings on 30 October 1995. Several deadlines set by the Court for reaching a decision came and went, ultimately giving rise to the fear that there would be no decisive majority to affirm the basic unlawfulness of the use of nuclear weapons. This would have been a bitter setback for the initiators of the Advisory Opinion proceeding and for the development of international law
    Manfred Mohr , Doctor of Laws, is a professor of international law and a long-standing expert on international humanitarian law

  • The International Court of Justice Advisory Opinion in the Nuclear Weapons Cases - A first appraisal

    There were two requests for advisory opinions from the International Court of Justice â€" the first from the World Health Organization (WHO), and the second from the United Nations General Assembly. WHO asked: " In view of the health and environmental effects, would the use of nuclear weapons by a state in war or other armed conflict be a breach of its obligations under international law, including the WHO Constitution? " The Court held by eleven votes to three (Judges Shahabuddeen, Weeramantry and Koroma dissenting), that it was not able to give the advisory opinion requested by WHO. The Court's opinion was consistent with the position argued by the United States and other countries and, in our view, is correct. As the WHO opinion primarily con cerned jurisdictional issues, we will focus on the advice given in response to the request of the General Assembly.
    John H. McNeill, Senior Deputy General Counsel at the United States Department of Defense

  • ICRC statement to the United Nations General Assembly on the Advisory Opinion of the International Court of Justice on the legality of the threat or use of nuclear weapons

    The debate in the First Committee of the United Nations General Assembly (51st Session, 1996) on agenda items 71 and 75 (disarmament and the 1980 Conventional Weapons Convention) gave the ICRC the opportunity to make the following brief comment on the Advisory Opinion of the International Court of Justice relating to the legality of the threat or use of nuclear weapons: This was the first time that the International Court of Justice analysed at some length international humanitarian law governing the use of weapons. We were pleased to see the reaffirmation of certain rules which the Court defined as " intransgressible " , in particular the absolute prohibition of the use of weapons that are by their nature indiscriminate as well as the prohibition of the use of weapons that cause unnecessary suffering. We also welcome the Court's emphasis that humanitarian law applies to all weapons without exception, including new ones. In this context we would like to underline that there is no exception to the application of these rules, whatever the circumstances. International humanitarian law is itself the last barrier against the kind of barbarity and horror that can all too easily occur in wartime, and it applies equally to all parties to a conflict at all times.