By Katherine Youssouf
Restricting the Means & Methods of Warfare
In 1863, Russian military authorities developed an explosive rifle bullet that detonated upon contact. These bullets, originally developed to destroy ammunition wagons, caused wounds far greater than those needed to overcome an enemy. As a result, Russian Emperor Alexander II convened a conference to prohibit the projectile. The outcome was the Saint Petersburg Declaration, the first formal international covenant to prohibit the use of a particular weapon during armed conflict. The Declaration asserts that attacks must be limited to weakening, not annihilating the forces of the enemy and that the necessities of armed conflict must yield, within specified technical limits, to the requirements of humanity. The employment of “arms which uselessly aggravate the sufferings of disabled [combatants], or render their death inevitable” goes beyond the legitimate object of weakening the military forces of the enemy. The Declaration is the first prohibition on the means or methods of warfare that cause superfluous injury or unnecessary suffering, known as the SIrUS rule—a general principle of international law codified in Article 35(2) of 1977 Additional Protocol I and Rule 70 of the ICRC Study on customary international humanitarian law. Unsurprisingly, the SIrUS rule has been tethered to means of warfare that extend beyond explosive bullets, including the use of expanding bullets, chemical weapons, and biological warfare. Alarmingly, however, the SIrUS rule has historically failed to compel the prohibition of world’s most dangerous class of weapons: nuclear weapons.
U.S. Nuclear Arsenal
The U.S. is one of nine nations with nuclear weapons in its arsenal, but it is the only nation to have ever used them in warfare. On August 6, 1945, the United States detonated “Little Boy,” an atom bomb consisting of highly enriched uranium approximately 1,900 feet above Hiroshima, Japan. Between 60,000-80,000 persons were killed immediately with the final death toll ultimately claiming the lives of and approximately 135,000 persons [in the immediate aftermath of the bombing]. Three days later, on August 9, 1945 the U.S. detonated its second atom bomb, “Fat Man,” over Nagasaki killing 40,000-70,000 [possibly as high as 100,000] people. Despite these catastrophes, the U.S. continues to maintain nuclear forces for two fundamental reasons. First, international security remains unpredictable, and thus more dangerous, especially with the threat of violent extremists and hostile nations procuring weapons of mass destruction (WMD). Second, the Department of Defense affirms that maintaining a nuclear arsenal is an indispensable part of the U.S.’s national security strategy of deterrence. Because of their immense destructive power, nuclear weapons are capable of deterring acts of aggression in a way that cannot be duplicated by other weapons.
Consequences of Nuclear Weapons
But such a national security strategy comes with irreversible costs. International lawyers and scientific experts alike argue that nuclear proliferation in the name of national security occurs at the expense of humanity. Specifically, experts at the U.N. claim that nuclear warfare would constitute several crimes of international law—including war crimes, genocide, and violations of human rights—but would also irreparably damage the environment. Scientific studies predict that even a nuclear war of limited capacity between Russia and the U.S., the nations with the highest numbers of nuclear warheads, would leave the planet virtually uninhabitable. Researchers predict that radioactive contamination would destroy harvests, and smoke would heat the Earth’s upper atmosphere destroying the stratospheric ozone, blocking sunlight, and initiating an Ice Age on Earth.
Despite their potentially apocalyptic impact, historically nuclear weapons have failed to be deemed unlawful, unlike their equally nefarious counterparts (i.e., chemical and biological weapons). In 1996, the International Court of Justice (ICJ), in a seven to seven split, issued an advisory opinion stating that nuclear weapons may or may not be lawful. The Court’s opinion is as conclusive as it sounds. The Court identified three groups of treaties related to nuclear weapons: treaties that prohibit the 1) the acquisition, manufacture, and production of nuclear weapons; 2) the transfer of nuclear weapons; and 3) the testing of nuclear weapons. But the Court could not find an explicit prohibition of nuclear weapons, and thus could not deem the use of nuclear weapons unlawful. The Court did however vividly illustrate its understanding of the potentially catastrophic impact of nuclear warfare on the planet (see para. 35).
However, the international community’s most recent multilateral development is beginning to change the tides of disarmament. The Treaty on the Prohibition of Nuclear Weapons, adopted July 7, 2017, is the first legally binding international agreement intended to comprehensively prohibit nuclear weapons. Following treaty negotiations, there were one hundred twenty-two nations that voted in favor of the agreement; sixty-nine nations did not vote, among them all of the nuclear weapon states and all NATO members, with the exception of the Netherlands, the only nation to vote against the treaty. Following the treaty’s adoption, the U.S., U.K., and France issued a joint statement indicating that they did not intend “to sign, ratify or ever become party to” the treaty after stating that it disregarded the realities of the international security environment and was “incompatible with the policy of nuclear deterrence, which has been essential to keeping the peace in Europe and North Asia for over seventy years.” Thus, like France and the U.K., the U.S. is bound only to provisions of the Non-Proliferation Treaty (NPT), ratified in 1970. Under the NPT, non-nuclear-weapon states agree to never acquire nuclear weapons; in exchange nuclear-weapon states, like the U.S., agree to share the benefits of peaceful nuclear technology and pursue nuclear disarmament. Therefore, until the U.S. provides its consent, it will continue to escape the parameters of a comprehensive prohibition, relentlessly promoting a policy of anti-procurement, while vigilantly guarding its own arsenal.
In the wake of these complex truths, the tremors of two important considerations persist: first, what legitimacy will the US platform retain if the policy it promulgates is a contradiction, and second, will humanity be its next sacrifice in the interest of national security?