Use of nuclear, biological or chemical weapons: current international law and policy statements
Information note to Red Cross and Red Crescent National Societies about the ICRC position
Use of nuclear weapons
Today there is no comprehensive and universal prohibition on the use of nuclear weapons in either customary or conventio nal international law.
Nonetheless, on 8 July 1996 the International Court of Justice, the principal judicial organ of the United Nations, gave an Advisory Opinion about the Legality of the threat or use of nuclear weapons. The 14 judges of the Court examined current treaty law, customary rules and State practice with regard to nuclear weapons and, based on their analysis, concluded unanimously that the principles and rules of international humanitarian law apply to the use of nuclear weapons. They added that the use of nuclear weapons would generally be contrary to the principles and rules of international humanitarian law.
Use of biological and chemical weapons
According to customary international humanitarian law which is binding on all States and on all parties to an armed conflict, the use of biological and chemical weapons is prohibited .
This norm is based on the ancient taboo against the use in war of " plague and poison " , which has been passed down for generations in diverse cultures. It was most recently codified in the 1925 Geneva Protocol and subsequently in the 1972 Biological Weapons Convention and in the 1993 Chemical Weapons Convention. The great majority of States are parties to these three treaties. The prohibitions based on these texts cover not only the use, but also the development, production and stockpiling of biological and chemical weapons.
It should be emphasized that in situations of armed conflict this absolute prohibition applies to all biological and chemical agents, whether labelled " lethal " or " non-lethal " . For example, even the use of riot control agents which is permitted for domestic riot control purposes is prohibited in situations of armed conflict.
In response to the development of nuclear, biological and chemical weapons, the Movement repeatedly expressed its concerns about such weapons in various resolutions adopted by several International Conferences of the Red Cross and Red Crescent.
The resolutions called for preventive action with regard to the threat to the civilian population and to humanity at large posed by nuclear, biological and chemical weapons. They urged Governments to agree, within the framework of general disarmament, on a plan for the international control of atomic energy that would ensure the prohibition of nuclear weapons. They also urged Governments to conclude as rapidly as possible an agreement banning the production and stockpiling of chemical and biological weapons to complement the ban on use in the 1925 Geneva Protocol.
Recent International Conferences of the Red Cross and Red Crescent have not focussed on the issue of nuclear, biological and chemical weapons in part due to the fact that the humanitarian problems caused by conventional weapons such as anti-personnel landmines, blinding laser weapons, the availability of small arms and explosive remnants of war, needed to be urgently addressed.
One year ago the ICRC reviewed its policy statement on nuclear weapons in particular to take account of the 1996 Advisory Opinion of the International Court of Justice (ICJ). While basing its legal opinion on the existing international law and the ICJ Advisory Opinion, the ICRC, as an humanitarian organisation, also takes a position based on broader ethical and humanitarian considerations. Its position is presented here:
- 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. The ICRC finds it difficult to envisage how the use of nuclear weapons could be compatible with the principles and rules of international humanitarian law.
- In view of the unique characteristics of nuclear weapons, the ICRC calls on States to ensure that these weapons are not used, irrespective of whether they consider them to be lawful or not. Nuclear weapons are characterized in particular by their destructive power, the unspeakable suffering caused by their use, the fact that it is extremely difficult to bring aid to victims, the fact that it is impossible to control their effects in space and time, the risk of escalation and proliferation which any use of nuclear weapons necessarily involves, and the dangers which such weapons entail for the environment, future generations and the survival of humanity.
- The ICRC furthermore calls on States to take every appropriate measure to limit the risk of the proliferation of nuclear weapons and to effectively combat any trade in substances or components liable to promote such proliferation.
- Finally, the ICRC calls on States to pursue negotiations 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.
Biological and Chemical Weapons
As early as February 1918, deeply concerned by the increasing use of chemical weapons in World War I, the ICRC issued an impassioned appeal International Bulletin of the Red Cross Societies , N° 194, April 1918, pp. 185-187 (in French only) or on ICRC's website. stating that if warfare by poison were accepted " we can only see ahead a struggle which will exceed in barbarity anything which history has known so far " . It protested " with all the force at [its ] command against such warfare, which can only be called criminal. " This appeal is still valid today.
Because of their potential to cause horrific forms of suffering and the difficulties of protecting civilian populations, the ICRC continues to consider the use of biological and chemical weapons to be abhorrent. The use of such weapons would contravene existing international treaties and many of the fundamental norms of international humanitarian law.
On 25 September 2002, the ICRC launched an Appeal on Biotechnology, Weapons and Humanity to promote consideration of the risks, rules and responsibilities related to advances in biotechnology which may lead to their hostile use to cause poisoning and deliberate disease. Th e ICRC appealed to all political and military authorities to strengthen their commitment to the international humanitarian law norms which prohibit the hostile uses of biological agents, and to work together to subject potentially dangerous biotechnology to effective controls. All States were urged to ensure faithful implementation of the relevant treaties related to biological and chemical weapons and to adopt stringent national legislation in order to ensure that the legal norms prohibiting biological and chemical warfare are known and respected.
The ICRC also called on the scientific and medical communities, industry and civil society in general to ensure that potentially dangerous biological knowledge and agents be subject to effective controls.
Finally the Appeal urges States to adopt in 2003 at a high political level an international Declaration on " Biotechnology, Weapons and Humanity " containing a renewed commitment to existing norms and specific commitments to future preventive action.
Geneva, March 2003
Ref. ICRC – DC/JUR/MINA-DLY