The Legality of the Use of Nuclear Weapons (07/10/2022)

What do Vladimir Putin and Henry Kissinger have in common? Late last month, the Russian President threatened the use of nuclear weapons in the war over Ukraine, stating: "To those who allow themselves to make such statements about Russia, I would like to remind you that our country also has various means of destruction, and for some components more modern than those of the NATO countries.” In the same vein in 1957, Kissinger wrote: “The tactics for limited nuclear war should be based on small, highly mobile, self-contained units, relying heavily on air transport even within the combat zone.” Putin spoke as his country is being stymied in its efforts to incorporate Ukraine into the Russian Federation. Kissinger was writing at the height of the Cold War as the Rapporteur for a study by the Council of Foreign Relations which later appeared in the book Nuclear Weapons and Foreign Policy.

To contextualize the possibility of using nuclear weapons by Kissinger and Putin: Both happened at times of extreme tension between the West and the Soviet Union/Russia. Both occurred when a major confrontation between the two sides was not taking place but could not be excluded. 
But there are significant differences between the two. Kissinger’s advocacy of limited nuclear war was his attempt to set out a U.S. strategy to avoid a major, direct confrontation between NATO and the Warsaw Pact. He was trying to elaborate a United States military policy for the nuclear age after Hiroshima and Nagasaki, hoping any confrontation between the two belligerents could avoid massive retaliation and mutual assured destruction.  Putin’s strategy is to use the nuclear threat to gain bargaining chips in an eventual settlement over Ukraine’s borders. Stymied in an immediate takeover of Ukraine and witnessing continued Ukraine successes as the fighting continues, Putin alluded to using nuclear weapons to hasten advantages in an eventual solution. 
While much is being written in the West’s reaction to Putin’s threat about the horrors of using nuclear weapons, it should be remembered what former President Bill Clinton said in 2007: “Presidents since the Cold War have used nuclear deterrents to keep the peace, and I don’t believe any President should make blanket statements in the regard to use or non-use.” It should also be remembered that prior to the Cold War the United States used nuclear weapons, leading Putin to argue that the United States’ bombings of Hiroshima and Nagasaki “created a precedent” for their use. 
Besides the political, military and ethical implications of using nuclear weapons, there is also a legal aspect. Many of the arguments for and against the use of nuclear weapons appeared in the 1996 International Court of Justice’s Advisory Opinion on the “Legality of the Threat or Use of Nuclear Weapons”. In the crucial part of its decision, the Court opined: “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 humanitarian law.” But the Opinion did not completely disqualify their use: “However, in view of the current state of international law, and the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake.”
The Court did not say that the possession of or the threat of using nuclear weapons was illegal. The Court emphasized that there are restrictions on the actions of belligerents in armed conflicts in terms of what they can do. In other words, the legality of the use of the use of certain weapons is because of their specific effects during conflicts. According to the Court, the threat or use of nuclear weapons is restricted by the rules and principles of international humanitarian law because of their effects on non-combatants and soldiers. The weapons are, in Professor Georges Abi Saab’s words; “indiscriminate weapons of mass destruction.”
But the court did not formally ban the use of nuclear weapons in conflicts – the final decision was tied seven and seven – because “it does not have sufficient elements to conclude with certainty that the use of nuclear weapons would necessarily be at variance with the principles and rules of law applicable in armed conflict in any circumstance.” Specifically, it recognized that every State has its right to self-defense when its survival is at stake. “In view of the current state of international law, and the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake,” it declared in the famous final sentence of Paragraph 2E. It is important to remember that Article 51 of Chapter VII of the UN Charter permits the use of force by States “in the exercise of this right of self-defence.”
Kissinger believed that the very survival of the United States could be a stake if the Soviet Union attacked, justifying the possible use of limited nuclear weapons. But Putin? What is his justification for the threat? Is the survival of the Russian Federation at stake? Is Russia being attacked? While Putin may fantasize that Ukraine is a part of the Russian Federation, it has long been accepted as an independent country, even by Russia. No country invaded or threatened the Russian Federation as it exists today.
Putin’s Press Secretary Dmitry Peskov followed the State survival reasoning by equating State survival with an existential threat. "So, if it is an existential threat for our country, then it [nuclear weapon] can be used, in accordance with our concept,” Peskov proposed.
The Russians are invoking the glaring weakness of the Court’s ambiguous decision. By invoking State survival, the Court invited unlimited State actions in the name of survival, both in terms of its perception of its need to use force for self-defense and the type of force it can use once it decides that its survival is at stake. 
Whatever the Russians present as the basis for their eventual use of tactical nuclear weapons in the name of their survival, it should be emphasized that there has been international condemnation of the use of nuclear weapons in any situation, even State survival. International Physicians for the Prevention of Nuclear War were awarded the Nobel Peace Prize in 1985 "for spreading authoritative information and by creating awareness of the catastrophic consequences of nuclear war." The International Campaign to Abolish Nuclear Weapons was awarded the Nobel Peace Prize in 2017 "for its work to draw attention to the catastrophic humanitarian consequences of any use of nuclear weapons and for its ground-breaking efforts to achieve a treaty-based prohibition of such weapons." 
While Clinton’s statement remains in the deepest background of potential actions by a U.S. president, Putin’s threat is more immediate and more problematic. Most importantly, it does not meet the criteria of State survival permitted by the Court. Putin’s justification of “existential threat” does not meet any legal standard of State survival. But then again, respecting international humanitarian law or international law in general is not high on the Russian government’s agenda today.

 

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