The Humanitarian Pledge, Nuclear Weapons, and the Laws of War

Dear Readers of ACW: I have posted the perspectives of others in this space on whether the explosive use of nuclear weapons can be reconciled with the laws of war. This discussion is useful, in my view, because it clarifies that the continued abundance of nuclear weapons held by the United States and the Russian Federation is indefensible except on the most abstract and arcane basis of nuclear deterrence. This discussion is especially timely with the anniversary of the atomic bombing of Hiroshima and Nagasaki just around the corner. Missing from this debate until now has been a perspective from the Humanitarian Initiative. I am grateful to Ira Helfand, Co-President of the International Physicians for the Prevention of Nuclear War, for rectifying this omission. Ira’s piece, below, is titled “The ‘Legal Gap’ is a Yawning Chasm.”

Dan Joyner’s piece on this blog several months ago argues that while there is a gap in international law concerning nuclear weapons, the gap isn’t that big. That is a defensible claim if we are talking about international law on the explosive use of nuclear weapons, where the World Court has ruled that such use is illegal in almost all cases. The Court, however, chose not to rule on the “extreme” case where the survival of a state is in question, and no other international agreement, including the NPT, explicitly prohibits nuclear weapons because of their inherently unacceptable consequences.

As a result, the legal gap regarding everything other than the explosive use of nuclear weapons is more than large enough for the nuclear-armed states to maintain the full range of practices related to possession, modernization, and operational readiness. The gap in international law concerning the possession of nuclear weapons is actually a yawning chasm. There is simply no legal prohibition on the states that currently possess these weapons, and the usual security-based arguments that have framed the nuclear disarmament debate until recently leave no room for prohibition as an option. The Humanitarian Pledge seeks to address this massive gap, and a Nuclear Ban Treaty will close it.

It is critically important that we focus on the question of possession from a medical/humanitarian point of view. The undisputed evidence about the consequences of nuclear weapons makes it clear that they are simply too dangerous for us to permit their existence.

Defenders of the continued possession of nuclear weapons usually base their arguments on deterrence and the apparently faith-based belief that deterrence will not fail. In fact, deterrence has failed already on numerous occasions. During the Cuban Missile Crisis, neither side wanted a nuclear war, but both stumbled in the dark for days, planning to use nuclear weapons if the other side crossed red lines which they could not possibly know existed. On several occasions, both Moscow and Washington prepared to launch nuclear war in the mistaken belief that it was already under nuclear attack. On each of these occasions, dumb luck, rather than wise nuclear policy, kept us from destroying human civilization.

In reality, nuclear-armed states do not maintain their arsenals purely to deter nuclear attack from their enemies. We use the term “explosive use” of nuclear weapons to emphasize an important point. No nuclear-armed state has detonated a nuclear weapon over an enemy state since the US atomic bombing of Nagasaki, but possessor states use them all the time to project national power and to bully the rest of the world.

The United States, for example, threatened to use nuclear weapons against a non-nuclear China during the Korean War, during the Vietnam War, and during the Iranian Revolution in 1978. Most recently, the US refused to take the “nuclear option” off the table during the invasion of Iraq in 2003. Russia has introduced the possibility of nuclear weapons use during the crisis in Ukraine; the French president has suggested he might use them in response to a terrorist attack; and India and Pakistan talk openly about their nuclear weapons while engaging in all-too-frequent armed conflicts. This history certainly supports Dan’s assertion that many situations look like nails to the hammer-holding nuclear-armed states, which are clearly willing to use their arsenals and do not appear to understand the consequences that will follow.

The Humanitarian Initiative disrupts the status quo and the rationale behind it in three specific ways.

First, it reframes the discussion by insisting that the inherent nature of nuclear weapons and their consequences become the focal point for the nuclear disarmament process. Medical, environmental, and humanitarian evidence about consequences has led to prohibiting and eliminating entire classes of weapons that are far less devastating in their effects than nuclear weapons. In the course of negotiating the treaties banning chemical and biological weapons, antipersonnel landmines, and cluster munitions, the security-based arguments for keeping them or delaying their elimination were raised and rejected.

Second, the Humanitarian Initiative gives equal weight to everyone’s security, and exposes the fact that nuclear weapons in the hands of some states endanger all states, whether or not they have the weapons themselves or are participants in the conflict in which they are used. Data developed over the last decade, and discussed at length at the Humanitarian Impact conferences, show that even a very limited use of nuclear weapons will cause catastrophic climate disruption. A war employing less than 0.5% of the world’s current nuclear arsenal would drop temperatures across the globe 1.30 to 20 C and cause catastrophic declines in food production, triggering a global famine that would put two billion people at risk and threaten to end modern civilization. Truly these weapons need to be seen as suicide bombs and those who possess them as suicide bombers. The Humanitarian Initiative leaves no other way to look at them.

Third, the Humanitarian Initiative adds a much-needed element of urgency. The nuclear-armed states have stalled and backtracked and explained away their failure to comply with their disarmament obligations for decades. As Patricia Lewis explained persuasively to the Open-Ended Working Group when it met in Geneva in May, when the consequences are so extreme that our ability to recover is in doubt, the risk of incurring those consequences must be brought to zero or near-zero as quickly as possible.

The non-nuclear-weapons states increasingly understand this reality. One hundred thirty-nine of them have either formally joined the Humanitarian Pledge or voted to support it at the UN. In growing numbers they are working for a Ban Treaty as the next step towards the complete elimination of these weapons, and the General Assembly will almost certainly establish a forum to negotiate such a treaty this fall. The proponents—including a clear majority of states, civil society campaigners working with ICAN, and international organizations including the leading global associations of doctors, nurses, and public health professionals—believe the treaty will pressure the nuclear-armed states to move in this direction.

Whether they can overcome the dangerous determination of the nuclear-armed states to retain their arsenals is not clear. But the effort to ban nuclear weapons is the most hopeful development since the end of the Cold War and those of us who work in the US need to figure out how best to support it.