The Legal Issues of Nuclear Weapons

          Rule one of Customary International Humanitarian Law (March 2005) quotes: “The parties to conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants.”  A few rules down, rule twelve, declares that indiscriminate attacks are intolerable: prohibited.  Because most international law is the product of treaties, naturally cavities remain.  These cavities create dangerous ambiguity in how entities engage one another during armed conflict.  To curb this, customary international humanitarian law is in place as a set of 161 rules, implied and accepted as law by all recognized nations-states.  The rules as demonstrated above, predominantly focus on the protection of civilians and combatants during international and non-international armed conflict.

As we all should recognize, nuclear weapons cannot distinguish between personnel; they cannot be controlled after firing. This was/is the primary reason for conventions against the use of chemical weapons and cluster munitions.  The importance of customary international law is its potential to deter and mitigate the catastrophic implications that nuclear weapons present. If they cannot be effective in nuclear disarmament, then customary international law has failed its purpose.  However, when we open up the newspaper and flip to a page that discusses nuclear contentions, there is hardly if any serious discourse on the legal ramifications that nuclear weapons present.

           To briefly continue, no reasonable argument can be presented that the use of nuclear weapons during armed conflict is appropriate in time of war; clearly, using such destructible means of warfare is unfair in the “rules of war” scenario.  Nonetheless, countries such as the U.S. and Russia continue to develop and maintain its nuclear power-constantly at the negotiation table discussing and setting new limits on each’s nuclear missiles, making sure that one is checking the other.  Subsequently, other countries, such as a rogue Iran, attempt to follow suit in developing their own nuclear niche - although claiming its uranium enrichment program is solely for peaceful measures.  If influential nations are incapable and/or unwilling to lead the rest of the global arena in dismantling their nuclear build-up, how could these same nations expect other countries to do just that?

What we need is true legal accountability.  Leaders such as the U.S, Russia, the UK (a member of the International Criminal Court), France, and China need to be the voices of international law.  In law school, students are taught that law is only what society makes it: taken as seriously or as lightly as we decide.  If treaties and rules are to be followed, then states/individuals need incentive to follow them.  Hence, breaking a law has a mirrored penalty-measured in degrees, depending on the offense committed.  Not enough legal action is being initiated to counter nuclear weapon development.  International law makes it clear that parties must be able to distinguish between individual civilian or combatant status when using weapons.  Hypothetically, if two states engage in conflict, and one state uses a weapon that does not comport with international laws governing war, ideally, that party will be held legally accountable after the fact: crime then punishment.  However, this isn’t so simple when discussing the serious threat that the use of nuclear weapons poses.  If a nuclear weapon is used there is no need for punishment after the fact because the obliterating outcome of such an exploit would disrupt and destroy society itself.  Thus, legal deterrence needs to emerge as one of the focal points of the nuclear non-proliferation effort and the only way this will be actualized is if all nations and international organizations come together and hold each other legally accountable to International Law.