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Published online by Cambridge University Press: 01 April 2016
International human rights law is an as-yet underused branch of international law when assessing the legality of nuclear weapons and advocating for their elimination. It offers a far greater range of implementation mechanisms than does international humanitarian law (IHL), and arguably strengthens the protections afforded to civilians and combatants under IHL, particularly in non-international armed conflict. Of particular relevance are the rights to life, to humane treatment, to health and to a healthy environment, associated with the right to a remedy for violations of any human rights.
1 The term “terrorist” is used here to mean one or more acts of violence committed against the general public with a view to provoking a state of terror and/or to changing government policy.
2 With respect to intentional lethal use of force, this is only lawful when “strictly unavoidable” to protect life – this is what the United Nations (UN) Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, has termed the “protect life” principle. See, e.g., Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, UN Doc. A/HRC/26/36, 1 April 2014.
3 See, e.g., European Court of Human Rights (ECtHR), Finogenov and Others v. Russia, App. Nos. 18299/03 and 27311/03, Judgment (First Section), 20 December 2011 (as rendered final on 4 June 2012), para. 213, available at: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-108231 (all internet references were accessed in November 2015).
4 International Criminal Tribunal for the former Yugoslavia (ICTY), The Prosecutor v. Dusko Tadić, Case No. IT-94-1-A, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 70.
5 Nick Ritchie, A Nuclear Weapons-Free World: Britain, Trident, and the Challenges Ahead, Palgrave Macmillan, Basingstoke, 2012, p. 89. See also Jerry Miller, Stockpile: The Story behind 10,000 Strategic Nuclear Weapons, Naval Institute Press, Annapolis, 2010, pp. 216–17; and see, e.g., Ayson, Robert, “After a Terrorist Nuclear Attack: Envisaging Catalytic Effects”, Studies in Conflict & Terrorism, Vol. 33, No. 7, 2010CrossRefGoogle Scholar.
6 International Covenant on Civil and Political Rights (ICCPR), New York, 16 December 1966 (entered into force 23 March 1976), 999 UNTS 171, Art. 2(1).
7 See, e.g., Human Rights Committee, Concluding Observations on the Fourth Periodic Report of the United States of America, UN Doc. CCPR/C/USA/CO/4, 23 April 2014, para. 4.
8 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996 (Nuclear Weapons Advisory Opinion), ICJ Reports 1996, para. 25.
9 The Court stated: “The terms of the question put to the Court by the General Assembly in resolution 49/75 K could in principle also cover a threat or use of nuclear weapons by a State within its own boundaries. However, this particular aspect has not been dealt with by any of the States which addressed the Court orally or in writing in these proceedings. The Court finds that it is not called upon to deal with an interna1 use of nuclear weapons.” Ibid., para. 50. Of course, a nuclear weapon could be detonated within a State's own borders during an international armed conflict, but the far likelier scenario is the launching or dropping of such weapons onto another State's sovereign territory.
10 Admittedly, the ECtHR took a markedly different approach in the Banković case, holding that the bombing, from the air, of a Serbian television and radio station by NATO forces did not fall within the scope of the Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 222, 4 November 1950 (entered into force 3 September 1953) (European Convention on Human Rights, ECHR). ECtHR, Banković and Others v. 17 NATO States, App. No. 52207/99, Admissibility Decision (Grand Chamber), 12 December 2001, para. 75. As Louise Doswald-Beck has observed, however, in a later case, Mansur Pad and Others v. Turkey, which concerned the killing of persons in Iraq by a Turkish helicopter near the border between the two States, the ECtHR came to a different conclusion. Here the Court stated that it was “not required to determine the exact location” where the people were killed by the helicopter fire; the fact that they were the victims of the shooting meant that they were “within the jurisdiction of Turkey at the material time”. Louise Doswald-Beck, “Human Rights Law and Nuclear Weapons”, in Gro Nystuen, Stuart Casey-Maslen and Annie Golden Bersagel (eds), Nuclear Weapons under International Law, Cambridge University Press, Cambridge, 2014, pp. 440–441, citing ECtHR, Mansur Pad and Others v. Turkey, App. No. 60167/00, Admissibility Decision, 28 June 2007, paras 54–55.
11 More precisely, the international law of law enforcement is composed of three main elements:
• international human rights law, especially the rights to life, liberty and security, to peaceful protest (an umbrella right comprising a number of independent rights), and to freedom from torture and other forms of inhumane treatment;
• customary international law, derived from, inter alia, criminal justice standards, especially the 1979 Code of Conduct for Law Enforcement Officials and the 1990 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials; and
• general principles of law, which reflect core principles of national criminal law across democratic nations.
See further Stuart Casey-Maslen (ed.), Weapons under International Human Rights Law, Cambridge University Press, Cambridge, 2014.
12 Nuclear Weapons Advisory Opinion, above note 8, para. 24.
13 Ibid., para. 25.
14 See also in this regard ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, ICJ Reports 2004, para. 106.
15 Article 4(1) of the ICCPR states: “In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.”
16 Nuclear Weapons Advisory Opinion, above note 8, para. 25.
17 Christian Tomuschat, “The Right to Life – Legal and Political Foundations”, in Christian Tomuschat, Evelyne Lagrange and Stefan Oeter (eds), The Right to Life, Brill, Leiden, 2010, p. 11.
18 William Schabas, “The Right to Life”, in Andrew Clapham and Paola Gaeta (eds), Oxford Handbook of International Law in Armed Conflict, Oxford University Press, Oxford, 2014.
19 Noam Lubell, Extraterritorial Use of Force against Non-State Actors, Oxford Monographs in International Law, Oxford University Press, Oxford, 2011, p. 240. More recently, in submitting an amicus curiae brief to the ECtHR with Professor Françoise Hampson, Lubell noted that “[t]he reference to lex specialis is unhelpful, which may account for why the ICJ did not include the final sentence in its quotation from para. 106 of the Advisory Opinion in the subsequent contentious case [Democratic Republic of the Congo v. Uganda, discussed below]. Whilst in general terms its meaning is clear, its specific meaning and application appears to be interpreted in a different way by every commentator. Use of this term has served to obfuscate the debate rather than provide clarification. It was designed to deal with a different situation – a vertical relationship between a general regime and specific regimes. … The relationship between LOAC/IHL and human rights law involves a different problem – the horizontal collision of two separate legal regimes. One is not a more specific form of the other.” ECtHR, Georgia v. Russia (II), 38263/08, Amicus Curiae Brief Submitted by Professor Françoise Hampson and Professor Noam Lubell of the Human Rights Centre, University Of Essex, 2014, para. 18.
20 Marko Milanović, “Norm Conflicts, International Humanitarian Law and Human Rights Law”, in Orna Ben-Naftali (ed.), Human Rights and International Humanitarian Law, Collected Courses of the Academy of European Law, Vol. 19, No. 1, Oxford University Press, Oxford, 2010, p. 6.
21 ICJ, Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, 19 December 2005, ICJ Reports 2005, para. 216.
22 See, in this regard, Vera Gowlland-Debbas, “The Right to Life and Genocide: The Court and an International Public Policy”, in Laurence Boisson de Chazournes and Philippe Sands (eds), International Law, the International Court of Justice and Nuclear Weapons, Cambridge University Press, Cambridge, 1999.
23 In Kolevi v. Bulgaria, for instance, the ECtHR stated: “The obligation of States to protect the right to life … requires by implication that there should be an effective official investigation when individuals have been killed. … The investigation must be effective in the sense that it is capable of leading to the establishment of the relevant facts and the identification and punishment of those responsible. … While the obligation to investigate is of means only and there is no absolute right to obtain a prosecution or conviction, any deficiency in the investigation which undermines its capability of establishing the circumstances of the case or the person responsible is liable to fall foul of the required measure of effectiveness.” ECtHR, Kolevi v. Bulgaria, App. No. 1108/02, Judgment (Fifth Section), 5 November 2009, paras 191, 192.
24 According to Article 1 of the 2001 Draft Articles on the Responsibility of States for Internationally Wrongful Acts, elaborated by the International Law Commission and forwarded to the UN General Assembly, “[e]very internationally wrongful act of a State entails the international responsibility of that State”. According to Article 31 of the Draft Articles:
1. The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.
2. Injury includes any damage, whether material or moral, caused by the internationally wrongful act of a State.
25 In 2001, in its judgment in the Cantoral Benevides case, for example, the Inter-American Court of Human Rights (IACtHR) held that Article 63(1) of the American Convention on Human Rights (ACHR), 1144 UNTS 123, 22 November 1969 (entered into force 18 July 1978) (governing remedy and reparation), “embodies a rule of customary law that is one of the basic principles of contemporary international law as regards the responsibility of States. When an unlawful act imputable to a State occurs, that State immediately becomes responsible in law for violation of an international norm, which carries with it the obligation to make reparation and to put an end to the consequences of the violation.” IACtHR, Cantoral Benevides case, Ser. C, No. 88 (2001), Judgment, 3 December 2001, para. 40. See also Dinah Shelton, Remedies in International Human Rights Law, 2nd ed., Oxford University Press, Oxford, 2005, pp. 27–29, 217.
26 See, e.g., IACtHR, Velasquez Rodriguez v. Honduras, Ser. C, No. 7, Judgment (Reparations), 21 July 1989, para. 25.
27 “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.” Universal Declaration of Human Rights, UN Doc. A/810, Paris, 10 December 1948, Art. 8.
28 See, e.g., ICCPR, above note 6, Art. 2; International Convention on the Elimination of All Forms of Racial Discrimination, 660 UNTS 195, 21 December 1965 (entered into force 4 January 1969), Art. 6; and Convention against Torture and other Cruel, Inhuman or Degrading Treatment of Punishment, 1465 UNTS 85, 10 December 1984 (entered into force 26 June 1987) (Convention against Torture), Art. 14.
29 Thus, the ECHR (Arts 13 and 41), the ACHR (Art. 25), the 1981 African Charter on Human and Peoples' Rights (Art. 7) and the 2004 Arab Charter on Human Rights (Art. 12) all codify the right to a remedy for victims of human rights violations. African Charter on Human and Peoples' Rights, 1520 UNTS 217, Nairobi, 27 June 1981 (entered into force 21 October 1986); Arab Charter on Human Rights, Tunis, 22 May 2004 (entered into force 15 March 2008), reprinted in International Human Rights Report, Vol. 12, 2005, p. 893.
30 UNSC Res. 692, 20 May 1991.
31 UNSC Res. 687, 3 April 1991, para. 16.
32 UNCC, “The United Nations Compensation Commission”, available at: www.uncc.ch. Thus, as Edda Kristjansdottir observes, such mass claims processes show that “where there is political will and some source of funds to pay compensation or property to restitute, the challenge of processing hundreds of thousands, or even millions, of claims in a relatively short amount of time is not insurmountably difficult”. Edda Kristjansdottir, “International Mass Claims Processes and the ICC Trust Fund for Victims”, in Carla Ferstman, Mariana Goetz and Alan Stephens (eds), Reparations for Victims of Genocide, War Crimes and Crimes against Humanity: Systems in Place and Systems in the Making, Martinus Nijhoff, Leiden and Boston, 2009, p. 169. See further Linda A. Taylor, “The United Nations Compensation Commission”, in Ibid., esp. p. 213.
33 See UNCC, “Summary of Awards and Current Status of Payments”, available at: www.uncc.ch/summary-awards-and-current-status-payments.
34 Having said this, it is a sad reality that IHL's inadequacies in humanitarian protection are exacerbated by a woeful lack of accountability mechanisms.
35 See, e.g., Stuart Casey-Maslen, “The Right to a Remedy and Reparation for the Use of Nuclear Weapons”, in G. Nystuen, S. Casey-Maslen and A. Golden Bersagel, above note 10, pp. 463–465.
36 L. Doswald-Beck, above note 10, p. 459.
37 Ibid., pp. 444–459.
38 Report of the Special Rapporteur, above note 2, para. 42.
39 The exception that proves the rule is contained in Article 15 of the ECHR (“Derogation in Time of Emergency”). Article 15(2) states: “No derogation from Article 2 [which sets out and protects the right to life], except in respect of deaths resulting from lawful acts of war … shall be made under this provision.” This exception is limited to situations of international armed conflict, as non-international armed conflicts fall within the scope of Article 2(2)(c): “action lawfully taken for the purpose of quelling a[n] … insurrection”. See L. Doswald-Beck, above note 10, pp. 447 n. 60 and 451.
40 Nuclear Weapons Advisory Opinion, above note 8, para. 25.
41 See Report of the Special Rapporteur, above note 2, para. 42.
42 ECtHR, Al-Skeini and Others v. UK, App. No. 55721/07, Judgment (Grand Chamber), 7 July 2011, para. 163.
43 “[T]he procedural obligation under Article 2 continues to apply in difficult security conditions, including in a context of armed conflict. … It is clear that where the death to be investigated under Article 2 occurs in circumstances of generalised violence, armed conflict or insurgency, obstacles may be placed in the way of investigators and … concrete constraints may compel the use of less effective measures of investigation or may cause an investigation to be delayed. … Nonetheless, the obligation under Article 2 to safeguard life entails that, even in difficult security conditions, all reasonable steps must be taken to ensure that an effective, independent investigation is conducted into alleged breaches of the right to life.” Ibid., para. 164. See also, e.g., ECtHR, Jaloud v. The Netherlands, App. No. 47708/08, Judgment (Grand Chamber), 20 November 2014.
44 ECtHR, Benzer and Others v. Turkey, App. No. 23502/06, Judgment (Former Second Section), 24 March 2014, para. 143.
45 Ibid., para. 185.
46 Nuclear fallout refers to the particles of matter in the air made radioactive from a nuclear explosion. Some of these particles fall in the immediate area, and some get blown many thousands of miles by upper winds. When they eventually fall to earth, this is called fallout. See, e.g., Fun Fong, Cham E. Dallas and Lorris G. Cockerham, “In-Depth Medical Management for Nuclear/Radiological/Conventional Terrorism Agents”, PowerPoint Presentation, undated, available at: www.powershow.com/view/17e3-NTY4Y/Medical_Effects_of_Nuclear_Weapons_powerpoint_ppt_presentation. See also L. Doswald-Beck, above note 10, pp. 450–451.
47 Statement of the Mayor of Nagasaki to Nuclear Weapons Advisory Opinion, above note 8, p. 36, available at: www.icj-cij.org/docket/files/95/5935.pdf.
48 F. Fong, C. E. Dallas and L. G. Cockerham, above note 46.
49 ICCPR, above note 6, Art. 7.
50 Convention against Torture, above note 28, Art. 16.
51 ECHR, above note 10, Art. 3; ACHR, above note 25, Art. 5; African Charter on Human and Peoples' Rights, above note 29, Art. 5.
52 L. Doswald-Beck, above note 10, p. 452, referring to US Department of Health and Human Services, Radiation Emergency Medical Management, “Nuclear Detonation: Weapons, Improvised Nuclear Devices: Categories of Medical Effects”, available at: www.remm.nlm.gov/nuclearexplosion.htm#categories.
53 L. Doswald-Beck, above note 10, p. 452.
54 R. DeVour, “Possible Psychological and Societal Effects of Sudden Permanent Blindness of Military Personnel Caused by Battlefield Use of Laser Weapons”, in Louise Doswald-Beck (ed.), Blinding Weapons: Reports of the Meetings of Experts Convened by the International Committee of the Red Cross on Battlefield Laser Weapons, 1989–1991, ICRC, Geneva, 1993, pp. 47, 52.
55 Ibid.
56 Nuclear Weapons Advisory Opinion, above note 8, para. 35. See also Ira Helfand, Nuclear Famine: Two Billion People at Risk? Global Impacts of Limited Nuclear War on Agriculture, Food Supplies, and Human Nutrition, 2nd ed., International Physicians for the Prevention of Nuclear War, November 2013, available at: www.ippnw.org/pdf/nuclear-famine-two-billion-at-risk-2013.pdf.
57 The 1981 African Charter on Human and Peoples' Rights, above note 29, provides in its Article 24 that “[a]ll peoples shall have the right to a general satisfactory environment favourable to their development”. The 1988 Additional Protocol to the ACHR in the Area of Economic, Social and Cultural Rights provides in its Article 11 that “[e]veryone shall have the right to live in a healthy environment” and requires that States Parties “promote the protection, preservation and improvement of the environment”. L. Doswald-Beck, above note 10, p. 454.
58 International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3, 16 December 1966 (entered into force 3 January 1976), Art. 12.
59 African Commission on Human and Peoples' Rights, The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria, Comm. No. 155/96, Decision, 27 October 2001, paras. 50–54; see L. Doswald-Beck, above note 10, p. 455.
60 Ibid.
61 See, e.g., Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, ICRC, Geneva, 2009, p. 28.
62 Protocol Additional (II) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS 609, 8 June 1977 (entered into force 7 December 1978) (AP II). As of July 2015, 168 States were party to AP II, the most recent being Palestine.
63 AP II, Art. 1(1), stipulates that the Protocol applies to “all armed conflicts which are not covered by Article 1 of [the 1977 Protocol Additional (I)] and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol”.
64 AP II, Art. 13.
65 Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3, 8 June 1977 (entered into force 7 December 1978), Art. 51(4)(c), provides that indiscriminate attacks are prohibited. “Indiscriminate attacks are: … (c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently … are of a nature to strike military objectives and civilians or civilian objects without distinction.” Of course, the application of the Protocol to the use of nuclear weapons is contested by certain nuclear-weapon-power States.
66 Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, Vol. I: Rules, Cambridge University Press, Cambridge, 2005, Rule 14: “Launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited.”
67 Under the Rome Statute of the International Criminal Court, 2187 UNTS 90, 17 July 1998 (entered into force 1 July 2002), Art. 8(2)(b)(iv), the ICC potentially has jurisdiction over “serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law” (emphasis added), including “[i]ntentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated”.
68 Ibid., Art. 8(2)(e).
69 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict with Regulations for the Execution of the Convention, 249 UNTS 240, 14 May 1954 (entered into force 7 August 1956), Second Protocol, 26 March 1999, Art. 6. The 1954 Hague Convention only required parties to a non-international armed conflict to respect cultural property.
70 Already under Article 16 of AP II, it was prohibited “to commit any acts of hostility directed against historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples, and to use them in support of the military effort”.
71 Precautions in attack are not discussed here, as failure to respect them does not formally constitute an indiscriminate attack.
72 The Trial Chamber concluded – arguably incorrectly – that the attacks took place in the context of an international armed conflict. Indeed, the prosecution in the case appeared at times to argue implicitly that a non-international armed conflict was in progress in 1995. “The intensity of the conflict between these well-organized parties … varied but was sufficiently high to distinguish the ‘homeland war’ from ‘banditry, unorganized and short-lived insurrections, or terrorist activities’.” ICTY, The Prosecutor v. Gotovina et al., Case No. IT-06-90, Prosecution's Public Redacted Final Trial Brief, 2 August 2010, para. 469.
73 Knin, Benkovac, Gračac and Obrovac.
74 See ICTY Chambers, “Judgment Summary for Gotovina et al.”, The Hague, 15 April 2011, p. 3, available at: www.icty.org/x/cases/gotovina/tjug/en/110415_summary.pdf.
75 “Pursuant to Gotovina's order … civilian population centres in the Krajina were put under artillery fire, including Knin, Benkovac, Obrovac and Gračac. In each of these towns and in outlying villages, shells and rockets impacted civilian areas, causing civilian deaths and injuries, damage to civilian property, and a mass exodus of the civilian population. Civilians who were the object of the attack, as well as observers from multiple international organisations, uniformly described the terrifying effect of the attack.” ICTY, Gotovina et al., above note 72, para. 484. The prosecution further cited Croatian army reports wherein 130mm cannons were fired “at a residential area in Knin” and “in irregular intervals … at the general area of Knin”. Ibid., para. 507.
76 ICTY, The Prosecutor v. Gotovina and Markac, Case No. IT-06-90-A, Judgment (Appeals Chamber), 16 November 2012, paras 58–61.
77 Ibid., para. 65.
78 ICTY, The Prosecutor v. Gotovina and Markac, Case No. IT-06-90-A, Application and Proposed Amicus Curiae Brief Concerning the 15 April 2011 Trial Chamber Judgment and Requesting that the Appeals Chamber Reconsider the Findings of Unlawful Artillery Attacks During Operation Storm, 12 January 2012, para. 17.
79 “By not articulating the correct legal standard, the Majority falls short of correcting any legal errors in the Trial Judgement and clarifying the law the Trial Chamber should have applied when assessing the legality of an attack directed on civilians and civilian objects. It also fails to consider whether the artillery attacks on the Four Towns were lawful or not when the evidence is assessed in light of the principles of international humanitarian law.” ICTY, Gotovina and Markac, above note 76, Dissenting Opinion of Judge Pocar, para. 13.
80 Ibid.
81 ICTY, Gotovina and Markac, Application and Proposed Amicus Curiae Brief, above note 78, para. 2.
82 See, e.g., ICRC, “Weapons: ICRC Statement to the United Nations, 2014”, Statement, General Debate on All Disarmament and International Security Agenda Items, UN General Assembly, 69th Session, First Committee, New York, 14 October 2014, available at: www.icrc.org/en/document/weapons-icrc-statement-united-nations-2014#.VP1BMCmzXX5.
83 See “ICRC and Human Rights Council: Complementary Activities, Respect for Differences”, statement by Mr Peter Maurer, President of the ICRC, 22nd Session of the Human Rights Council, High-Level Segment, Geneva, 26 February 2013, available at: www.icrc.org/eng/resources/documents/statement/2013/ihl-human-rights-council.htm.