The Humanitarian Movement to Ban Nuclear Weapons

There has been a lot of effort expended lately on, and a lot of attention given to, a movement in international civil society to bring about a clearer understanding and appreciation of the humanitarian consequences of the potential use of nuclear weapons, as a vehicle for promoting nuclear disarmament. Here’s an article about Rebecca Johnson, someone whom I very much like and respect, talking about this idea.

I think this humanitarian movement is a fine idea, and that it could indeed bring welcome attention to the fact that many strategic policies of states for the use of nuclear weapons, i.e. those that contemplate the use of nuclear weapons as against civilian population centers or mixed military-civilian targets, contemplate actions that would be clearly unlawful under the law of armed conflict – violating the very strong principles of proportionality and discrimination under those sources of law.

The International Court of Justice in its 1996 advisory opinion essentially agreed on this point, when it said that “the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of international humanitarian law.”

The critique that I would offer of the humanitarian movement is the same critique that that ICJ eventually had to face, which is that humanitarian principles unfortunately cannot answer the whole question of the lawfulness of the use of nuclear weapons, and therefore can’t carry the full burden that many of its proponents would like it to carry, i.e. the legal requirement of global nuclear disarmament.

The problem the Court faced is that there were those among the nuclear weapon states who argued, it must be admitted correctly, that nuclear weapons are not one size fits all, and that in modern nuclear weapons doctrine various uses/purposes are contemplated for nuclear weapons during armed conflict, not all of which would run afoul of the principles of humanitarian law.

The standard hypothetical examples include an enemy submarine or warship, alone or in a convoy, far out to sea, and the potential use of a small-yield nuclear warhead against them. Similarly, an enemy military base or group of enemy soldiers, or a deeply buried enemy military facility, isolated in a desert, and the use of a nuclear tipped cruise missile or nuclear bunker-buster bomb against such a target. In both of these cases, it is likely that the use of nuclear weapons would not violate either the principle of proportionality or the principle of discrimination.

So again, what I’m saying is that the humanitarian movement is a fine thing and will, I would hope, influence military planners in shaping their considerations of the instances in which the use of nuclear weapons would be lawful during armed conflict. There should indeed never be another Hiroshima or Nagasaki. Under the modern law of armed conflict, these uses of nuclear weapons against civilian centers, even with some military advantage involved, would be clearly illegal.

Nevertheless I, as others, would still signal the cautionary note that the expectations of what the humanitarian movement can achieve on the nuclear disarmament front should not be overestimated. To put it simply, not all uses of nuclear weapons in armed conflict would be illegal. And as long as that is true, possession of nuclear weapons is still lawful for those states that have not undertaken positive legal obligations to the contrary, and furthermore in some contexts it is quite rational.

I was reading recently an article over at armscontrol.org by Gaukhar Mukhatzhanova that made the following observation about one of the leaders of the humanitarian movement:

Juan Gómez Robledo, Mexican undersecretary for multilateral affairs and human rights and chair of the Nayarit conference, stated in his summary that “the path to achiev[ing] a world without nuclear weapons” is to outlaw them and identified the 70th anniversary of the Hiroshima and Nagasaki bombings as the “appropriate milestone” for achieving this goal. The summary, presenting the view of the chair rather than an agreed outcome, seems to have overstated the readiness of most states to launch negotiations on an instrument banning nuclear weapons. It has served, however, to further aggravate concerns among states that had suspected that the goal of the humanitarian initiative is to start a process parallel to and in competition with the NPT. The third humanitarian-impact conference, scheduled to take place in Austria later this year, is expected to identify next steps for the initiative, which would help clarify implications for the 2015 NPT Review Conference and beyond.

This mention of a process “parallel to and in competition with the NPT” caught my eye. There has indeed been talk within the humanitarian movement – as there has been in other contexts for many years, but simply renewed now in this context – about pushing for a nuclear weapons ban treaty. One vein of this idea is to have a group of willing states – however many there are and almost certainly not including any state actually possessing nuclear weapons – sign on to such a treaty banning nuclear weapons possession, and essentially begin the process of global nuclear disarmament by then proselyting the treaty to nuclear weapons states, and hopefully, eventually, getting them to sign on too.

I think this is a fine idea, as far as it goes, and I have previously supported the idea of abandoning the NPT for some new replacement treaty regulating nuclear energy and nuclear weapons.

I suppose the advice I would give to those who are actively promoting this idea, is the very point that I made in the post I just linked to, which is that the only way a replacement treaty for the NPT will ever even remotely possibly achieve meaningful levels of membership, is if there is an accompanying coordinated withdrawal from membership in the NPT by those state signing the new treaty.

I do not think a new treaty establishing a universal prohibition on nuclear weapons, and the NPT, can exist in parallel within a state’s treaty membership profile.

If there is to be any chance of putting serious pressure on nuclear weapons possessing countries to accept that the NPT regime is indeed a thing of the past, and that the way forward is the new treaty establishing a universal ban, the NPT must be well and truly killed off through states withdrawing from it in a massive, coordinated, and very deliberate way as they sign onto the new treaty. Only then will the issue of the new regime be forced upon holdout nuclear weapons possessing states, and they will be put in the spotlight of explaining over and over why they will not join the new treaty.